United States v. Dougherty

Brief Fact Summary. The Appellants brought a joint appeal from convictions for malicious destruction of property. The Appellants argued that the judge improperly refused to instruct the jury on the issue of jury nullification and barred defense counsel from arguing that issue to the jury.

Synopsis of Rule of Law. A judge presiding in a criminal case is not required to instruct the jury on the issue of jury nullification or allow defense counsel to argue the issue in front of the jury.

Facts. Seven of the individuals referred to as the “D.C. Nine” brought a joint appeal from convictions resulting from their unlawful entry into and subsequent destruction of property in the Dow Chemical Company office in Washington. The Appellants claim the judge erroneously refused to instruct the jury of its right to acquit the Appellants without regard to the law and evidence presented at trial. In addition, the Appellants take issue with the fact that the judge did not allow defense counsel to argue this concept of jury nullification to the jury.

Issue. Should a judge in a criminal case be required to instruct the jury about the concept of jury nullification and in addition allow defense counsel to argue this issue to the jury?

Held. No. The judgment of the lower court is affirmed. Judge Leventhal delivers the opinion of the Court of Appeals. Encouraging individuals to make their own decisions about, which laws to obey is an invitation to chaos. The negative aspects of having a rigid system do not outweigh the danger of removing the boundaries of constraint imposed by the judges’ instructions. Furthermore, jurors know they are not limited to the choices outlined in the formal instructions given by the court.

Concurrence.
Dissent. Chief Judge Bazelon concurring in part and dissenting in part. The power of nullification is a necessary offset to case-hardened judges and overzealous prosecutors. However, the jury should possess knowledge of its power to disregard the law. We should not assume that the jury is aware of this power through suggestion or innuendo. The power of jury nullification should be specifically instructed by the court or conveyed through the argument of counsel.

Discussion. A jury’s ability to exercise jury nullification may be necessary to avoid injustice in some cases. However, forcing the court to instruct the jury on the concept of jury nullification would put an undue burden on the jury system. Essentially, jurors would be forced to act as mini-legislatures or judges.