M E M O
TO:Joint Procedure Committee
RE:Courtroom Oaths - Comments
At the last meeting, the Committee considered a request from Judge Hagerty for a re-writing of the courtroom oaths. The Committee agreed the language in the courtroom oaths should be improved, and suggested putting the oaths in rule form and superseding the statutory oaths.
The idea of changing the language in the courtroom oaths has generated considerable controversy. In the material following are comments generated as a results of public concern about the language used in courtroom oaths.
The public seems to have two primary concerns. First, many of the comments express a desire for a reference to God to remain in the oaths. Second, people seem concerned about the potential impact on jury nullification by the promise extracted from the jury in the proposals to obey the instructions of the court.
Some argue the jury has the right, or should have the right, to decide questions of law as well as fact. However, popular myth notwithstanding, jury nullification is just a power and not a protected constitutional right. U.S. v. Kerley, 838 F.2d 932, 937-38 (7th Cir. 1988). Andrew D. Leipold, Rethinking Jury Nullification, 82 Va.L.Rev. 253, 284-96 (1996). The jury has no right to decide for itself what the law should be. Sparf v. United States, 156 U.S. 51, 102-03 (1895). It is "the duty of the court to expound the law and that of the jury to apply the law as thus declared to the facts as ascertained by them." Id. at 106; see Sections 29-21-03 and 29-21-04, N.D.C.C. The jury simply has the power to acquit on improper grounds, because the court has no means to compel them to do what they should do once they retire to deliberate, and the government is not allowed to appeal from an acquittal. State v. Bjerkaas, 472 N.W.2d 615, 619 (Wis. App. 1991).
The rationale for denouncing jury nullification is explained in United States v. Dougherty: "This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy." 473 F.2d 1113, 1133 (D.C. Cir. 1972). "No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable." Dougherty, 473 F.2d at 1134 (quoting United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969). "[I]t is a basic tenant of our system of government that decisions are based on law, not personal whim." Bjerkaas, 472 N.W.2d at 620 (quoting State v. Olexa, 402 N.W.2d 733, 738 (1987).
Should the power of the jury to return a verdict in a criminal prosecution notwithstanding the law and the facts be constrained by making the jurors promise to obey the instructions of the court? Does jury nullification provide a beneficial "safety valve" or is it simply a matter of "jury lawlessness?"