Friday, July 19, 2002
State High Court Orders Judges Not to Instruct Jurors in ‘Nullification’
By ROBERT GREENE, Staff Writer
A sharply divided state Supreme Court yesterday directed trial courts around the state not to instruct jurors hearing criminal trials that they must tell the judge when one of their colleagues states an intention not to follow the law in rendering a verdict.
The so-called “jury nullification instruction” has the “potential to intrude unnecessarily on the deliberative process and affect it adversely,” Chief Justice Ronald George wrote for the four-justice majority.
But the court stopped short of holding that the instruction—California Jury Instructions Criminal, or CALJIC, No. 17.41.1—is legally infirm. The justices in fact upheld the conviction of Tye John Engelman, who claimed use of the instruction by a San Diego Superior Court judge deprived him of his constitutional right to a trial by jury or his state right to a unanimous verdict.
Use of the instruction is not unconstitutional, the court said. Instead, the justices relied on their rarely used “supervisory power” to inform trial courts that they are not to use the instruction.
Although the instruction simply states the recognized law that jurors must not engage in misconduct, George said, the instruction that they must report each others’ actions or statements if they believe them to be improper creates a risk that one member of the panel may use it to “browbeat” his or her colleagues.
Process of Deliberations
Unlike other jury instructions, the chief justice said, CALJIC No. 17.41.1 focuses on the process of deliberations.
“We believe it is inadvisable and unnecessary for a trial court to create the risk of intrusion upon the secrecy of deliberations or of an adverse impact upon the course of deliberations by giving such an instruction,” George said.
The issue of juries acting as a group or jurors acting individually to thwart the law and convict or acquit a defendant for improper motives has long been a part of the history of Anglo-American jurisprudence.
But “jury nullification” has taken on increasing significance in recent years, as observers have begun charging that juries have convicted or acquitted defendants not based on the evidence presented, but because they are seeking to remedy perceived social or racial inequities.
Some commentators have actually called for juries to engage in nullification, pointing to what they say is a historical role for the citizen panelists to implement what they see as justice rather than to stick with the narrower task of making factual determinations.
Nullification includes any juror refusing to deliberate, or making a determination in a non-capital case based on what the punishment would be rather than on the facts.
Evidence that any juror has rendered a decision based on any improper motive is grounds for reversal in most cases. In two decisions last year, the California Supreme Court ruled that a juror who refuses to deliberate is subject to discharge by the court, as is a juror who proposes to reach a verdict without regard to the law or the evidence.
In Engelman’s case, the San Diego judge read the jury the CALJIC instruction right before deliberations began. No misconduct was alleged against any juror.
The Fourth District Court of Appeal rejected Engelman’s argument that the instruction invalidated the verdict.
So did the Supreme Court—but it said the potential for future problems was so great that the instruction should never again be given.
The opinion was roundly criticized by Justice Marvin Baxter, who was joined by two of his colleagues in dissent.
Baxter said there was little evidence that the instruction has been misunderstood or misused.
“I dissent generally from the invocation of our seldom used supervisory power to remedy de minimis concerns,” Baxter said. “I dissent specifically from the invocation of our supervisory power to condemn a useful and constitutionally permissible instruction merely because of a remote and shadowy risk of harm. And I dissent with regret that our supervisory power has been invoked when the court is so divided over the propriety of its use.”
The case is People v. Engelman, S086462.
Copyright 2002, Metropolitan News Company