The history of jury trials is rich with individual examples of nullification, a practice meant to bring about a just result or signal a change in the community conscience. Over time, the practice has become disfavored; civilian and military judges have prohibited nullification tactics in voir dire, 10 arguments, and instructions. Yet present panel guidance tells members to decide cases through consideration of the law, the evidence, and each members own conscience. And consequently, despite the military’s emphasis on strict obedience to the law, discretion exists within its justice system to allow members to hear arguments on the merits of both the facts and laws charged. Military judges should use this discretion and allow nullification in appropriate cases.
Major Michael E. Korte, He Did It, but So What? Why Permitting Nullification at Court-Martial Rightfully Allows Members to Use Their Consciences in Deliberations, 223 Mil. L. Rev. 200, 103-104 (Spring 2015) (direct link to article).
Recognizing that (and discussing the reasons why) efforts at obtaining jury nullification in a criminal case are generally barred, the author sketches out reasons why “in the limited circumstances of the factually guilty but morally blameless accused, nullification is an appropriate exercise of the discretion and trust entrusted to a panel comprised of those the convening authority hand-selected for their judicial temperament and experience.” Korte, supra, at 129. Those limited circumstances include a case that does not involve “only universally accepted criminal charges,” that presents evidence to “support an eventual nullification argument,” and that ends with an argument that “contain[s] the hallmarks of a nullification argument” (including appeals to the members’ conscience, discussion of the direct consequences of conviction, and questioning of the law at issue). Korte, supra, at 133.
The author also illustrates how current law allows for nullification. For example:
The military judge’s standard Benchbook instructions, however, allow panels the opportunity to acquit even when there is no reasonable doubt as to guilt. This opportunity is written into the standard instructions relating to the instructions on findings. These instructions state that where there is reasonable doubt as to the guilt of the accused, “that doubt must be resolved in favor of the accused, and (he) (she) must be acquitted . . .”
The instructions continue, describing the alternate scenario: “However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.”
The significance of the differing standards cannot be understated. The rules for courts-martial protect the accused by mandating a “not guilty” verdict when more than one-third of the panel members have reasonable doubts as to guilt. The same rules, as delineated in the standard Benchbook instructions, do not expressly require a “guilty” verdict when the members have no reasonable doubt as to guilt. Thus, panel members who find that the government has met the elements beyond reasonable doubt have latitude to find the accused “not guilty” because the members merely should find the accused guilty. This deliberate language allows for nullification in the limited cases where the panel members find that the accused committed the offense, but they do not wish to convict. These instructions are not inconsistent with Article 51(c), which does not specifically require instructions on panel obligations where all elements are met, opting instead for a clear instruction that the accused is presumed innocent until guilt is established by evidence beyond reasonable doubt.
Korte, supra, at 133.