Talk:United States v. Dougherty

Admission of Lack of Precedent

As one who did his 3rd year law school research and writing project on the jury nullification issue, I think it well justified to add an ellipse to the Dougherty quote and extend the quotation to the following from page 1137: "In the last analysis, our rejection of the request for jury nullification doctrine [jury instruction]] is a recognition that [t]here are times when logic is not the only or even best guide to sound conduct of government." That is an admission that the judicial hostility to telling jurors they are free to ignore judges' instructions on the law has no reasoned basis. Marbux (talk) 13:56, 7 January 2021 (UTC)

Importance of the abolition of attaint

This topic deserves elaboration. The history of jury nullification in the U.S. begins in England with the abolition of attaint, which permitted jurors to be punished for their verdicts. Wikipedia has a page on that topic, which correctly cites Bushel's Case as the decision where non-attaint was finally abolished. But from that day forward, particularly among the North American colonists' perceptions, the power of juries to bring in a verdict that flew in the teeth of the facts and the law was a right. Many U.S. states still have it expressly in their state constitutions that juries shall decide both the facts and the law. E.g., Oregon, Indiana, and Maryland.

That right was a central tenet of the Jeffersonian reaction to the "Judicial Monarchy" led by Justice John Marshall and state constitutional provisions spread as new states were admitted. Many judges objected to that doctrine as curtailing the powers of judges. Much of the aftermath is well explained in Sparf v. United States, 156 US 51 (1895). From there, the judicial history can largely jump 100 years, with a deserved visitation along the way of Dougherty, when United States v. Gaudin, 515 US 506 (1995) was decided, dramatically undercutting Sparf.

The important part, I think, is that the judiciary tends to view jury nullification as only a jury power, not a right. But that cannot be squared with the fact that jurors cannot be punished for their verdicts. It is a jury right, not a mere power to nullify the law in particular cases. Marbux (talk) 13:56, 7 January 2021 (UTC)