Highest Case Note from Write-On 2021: State v. Sayles, 244 A.3d 1139 (Md. 2021)

*Jeffrey Neuman

The Court of Appeals of Maryland held that the circuit court did not abuse its discretion when it instructed jurors that jury nullification is a juror’s willful dismissal of evidence or refusal to apply the law and that the jurors are not authorized to engage in such a practice. State v. Sayles, 244 A.3d 1139 (Md. 2021).

I. Introduction

In State v. Sayles, the Court of Appeals of Maryland examined whether Maryland juries are permitted to engage in jury nullification.[1] The Court concluded that while juries may inevitably possess the power of nullification, Maryland juries are not authorized to engage in jury nullification.[2] In a case of first impression, the Court of Appeals reversed the Court of Special Appeals’ holding.[3] The intermediate appellate court held that the circuit court abused its discretion when, in response to several jury notes inquiring about jury nullification, it instructed jurors that jury nullification is a juror’s purposeful rejection of the evidence or refusal to apply the law and that jurors are prohibited from engaging in such a practice.[4] In doing so, the Court established a precedent that will hinder the use of jury nullification as a tool for promoting communal critiques of racial inequality within the Maryland criminal justice system.[5]

II. Historical Development

A. Before State v. Sayles, “Jury Nullification” Was Not Defined in Maryland by Any Case, Statute, or Rule.

Black’s Law Dictionary defines jury nullification as a jury’s intentional refusal to apply the law or rejection of the evidence because the jury either wants to send a message about a larger social issue or the legally dictated result goes against the jury’s sense of fairness, morality, or justice.[6] The Anglo-American jury system’s fundamental principle that juries must conduct deliberations with the utmost secrecy enables the inherent power of juries to nullify.[7]

Federal courts are divided in their application of the Black’s Law Dictionary definition of jury nullification.[8] Both the Tenth and Third Circuits, and at least one federal district court, have adopted the Black’s Law Dictionary definition.[9] Conversely, in United States v. Thomas, the Second Circuit did not acknowledge the motive element of the Black’s Law Dictionary definition of jury nullification, describing the practice as simply “a violation of a juror’s oath to apply the law as instructed by the court.”[10] Prior to the instant case, Maryland courts had never attempted to define jury nullification.[11]

B. Maryland Case Law Holds That the Trial Court’s Instructions to the Jury on the Law Are Binding, Attorneys Cannot Argue for Nullification, and Legally Inconsistent Verdicts Are Not Acceptable.

The Maryland Declaration of Rights states that “[i]n the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact.”[12] However, the Court of Appeals has narrowly interpreted the phrase “Judges of Law” to mean that juries have the final say in conflicts over the “substantive ‘law of the crime’” and the “legal effect of the evidence.”[13] As such, a judge’s instructions on any other aspect of the law are outside the purview of the jury and are thus binding upon it.[14]

More recently, the Court in Kazadi v. State held that during voir dire, on request, a trial court must ask potential jurors if they are unwilling or unable to follow jury instructions on “the fundamental principles of presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify.”[15] This holding reaffirmed the concept that some aspects of the law are integral to a fair trial and are unequivocally binding on juries.[16]

It is also well established in Maryland that attorneys are prohibited from arguing nullification to a jury.[17] In Blackwell v. State, the Court of Appeals held that a trial court correctly sustained an objection to a defense attorney’s statements that outlined the application of jury nullification to death penalty cases.[18] The Court’s holding decisively stated that juries do not have “untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.”[19] Similarly, in Thomas v. State, the Court of Special Appeals held that the defense attorney could not inform the jury of minimum sentencing guidelines for an offense charged because he admitted that his purpose was to induce jury nullification.[20]

A legally inconsistent verdict is the product of a jury that acts contrary to the judge’s instructions and improperly applies the law.[21] The result is a verdict where a defendant is convicted of one charge but acquitted of another lesser charge that is an indispensable element of the first.[22] In contrast, factually inconsistent verdicts occur when a defendant is convicted of one charge and acquitted of another charge based on common facts but with different legal elements.[23]

Prior to 2008, Maryland courts often allowed legally inconsistent verdicts.[24] However, in Price v. State, the Court of Appeals overturned this practice, holding that legally inconsistent verdicts were impermissible.[25] In contrast, factually inconsistent verdicts, while illogical, are not illegal.[26] The Court of Appeals subsequently reaffirmed the prohibition of legally inconsistent verdicts in McNeal v. State and Givens v. State.[27]

C. The Majority of Federal and State Courts Agree That Juries Have the Power, but Not the Authority, to Engage in Jury Nullification.

Well before questions pertaining to a jury’s authority to nullify arose in Maryland, the Supreme Court of the United States stated in Sparf v. United States that while juries have the “physical power to disregard the law,” they do not have the “moral right to decide the law according to their own notions or pleasure.”[28] Since then, federal courts have adhered to the example set by the Supreme Court in Sparf.[29] Federal courts have also agreed that trial courts should prevent jury nullification when possible.[30]

A majority of state courts have also followed the Supreme Court’s lead in Sparf, recognizing that jury nullification is an unavoidable and unauthorized power of juries.[31] The rationale for such holdings ranged from concerns that informing jurors about the practice of nullification would cause them to act in a capricious or bigoted manner,[32] to simple adherence to the precedent set in Sparf.[33] However, at least one state—New Hampshire—has allowed trial courts to inform juries of their nullification power.[34]

With this backdrop in mind, the Court of Appeals granted certiorari to examine whether the Court of Special Appeals erred in concluding that the trial court abused its discretion by instructing the jury that it was not authorized to engage in jury nullification.[35]

III. Instant Case

On the first day of jury deliberations, at a trial stemming from a home invasion and attempted robbery, the court received the first of three notes from the jury.[36] The first note read, “[d]o we have the right to use jury nullification of a charge?”[37] After conferring with counsel, the court issued a written response stating that “[y]our verdict must be based solely on the evidence. Your choices, based on the evidence[,] are Not Guilty or Guilty. Reread your instructions.”[38]

Shortly after, the circuit court received a second note that read, “[c]an you answer the jury nullification with a yes or no response? From a juror?”[39] After conferring with counsel again, the court orally instructed the jurors that jury nullification is “a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law” and that they could not engage in such a practice.[40] The court further stated that allowing nullification “would be a miscarriage of justice” and instructed the jurors to make their decisions based on the application of the law to the evidence, in conjunction with their common sense and life experiences.[41]

 The next day, the court received a third note from the jury asking the court to cite the particular law that denies jurors the right to nullify in Maryland.[42] The court again discussed how it should respond with counsel.[43] The court then responded:

You may not use or implement or resort to jury nullification. It is improper, contrary to the law and would be a violation of your oath to “truly try to reach a verdict according to the evidence.”

Furthermore, nullification would violate t[he] Court’s Order that “you must apply t[he] law as I explain it in arriving at your verdict.”[44]

Upon receiving the court’s response, the jury deliberated for the rest of the afternoon and most of the following day[45] before returning a guilty verdict for respondents.[46]

On appeal, the Court of Special Appeals reversed the judgment,[47] holding that the circuit court’s responses to the second and third notes about jury nullification were legally incorrect.[48] The Court of Special Appeals reasoned that the jury’s power to nullify is well established and its definition includes information about motive.[49] Thus, it held that the circuit court’s instructions were both incomplete and incorrect.[50]

Upon review, the Court of Appeals first turned to the definition of jury nullification.[51] The Court held that both the Black’s Law Dictionary definition[52] and the definition provided in United States v. Thomas[53] were correct.[54] It reasoned that, while the Black’s Law Dictionary definition may be more expansive, it encompasses the definition laid out by the Second Circuit.[55] The Court held that the non-inclusion of the motive aspect in the definition was inconsequential because there was no indication that the jury was motivated by considerations of justice, fairness, or morality due to the heinous nature of the crimes.[56] Thus, the circuit court’s instructions to the jury accurately defined jury nullification.[57]

When deciding whether jurors are authorized to engage in jury nullification, the Court of Appeals relied heavily on Maryland case law.[58] The court reasoned that if counsel cannot argue for nullification,[59] and the court’s instructions to jurors are binding,[60] then it would be paradoxical to authorize the jury to ignore the law on which it was instructed and to engage in nullification.[61] Furthermore, permitting juries to nullify would be inconsistent with the rationale in Kazadi that jurors must comply with certain fundamental principles of the law such as the “presumption of innocence, the State’s burden of proof, and the defendant’s right not to testify.”[62]

Additionally, the Court of Appeals found that allowing such a practice would nullify the prohibition against legally inconsistent verdicts.[63] The Court explained that because legally inconsistent verdicts involve the jury acting contrary to the trial judge’s instructions on the law,[64] authorizing nullification would allow the jury to return legally inconsistent verdicts at will, rendering the ban on such judgments useless.[65] Thus, the Court adopted the approach taken by the vast majority of other jurisdictions,[66] holding that jury nullification is not authorized in Maryland and that the circuit court did not abuse its discretion by instructing the jury that it could not engage in jury nullification.[67]

In the dissenting opinion, Judge Hotten argued that the majority ignores the “fine, but decisive” line between recognizing the power of nullification and encouraging its use.[68] Judge Hotten argued that regardless of the merits or pitfalls of jury nullification, the circuit court erred by instructing the jury that it could not nullify.[69] In closing, Judge Hotten suggested that the circuit court could have simply avoided the question or reemphasized that the jury must apply the law as stated and is not authorized to disobey the court’s instructions.[70]

IV. Analysis

A. The Court of Appeals’ Holding Limits the Opportunities for Social Critiques of the Criminal Justice System that are Available Under Equally Pragmatic Approaches to Questions about Jury Nullification.

The Court of Appeals clarified that jury nullification is not authorized in Maryland.[71] However, by validating the circuit court’s instruction that the jury could not use jury nullification, the Court of Appeals endorsed an approach that blurs the distinction between ability and authority.[72] Instead, the Court could have taken this opportunity to embrace an attenuated, yet still unsupportive, approach to jury nullification—like the one used in New Hampshire.[73] Advising the jury that they “should” convict if the state has met its burden of proof would both be a more favorable assertion of the law[74] and, as argued in State v. Paul, would likely not be overt enough to inform the jury of its nullification power.[75]

The Court could have also gone a step further and embraced an approach that informed the jury of the court’s prohibition on instructing jurors about nullification, as in United States v. Sepulveda.[76] This approach would have both avoided a perceived endorsement of jury nullification and more accurately informed the jurors; it might have even expedited the trial by preventing duplicitous questions from the jury. As the Court’s holding was in accord with the holding in Sepulveda,[77] such an approach would not have been contrary to the court’s position.

Unlike the approach endorsed in Sayles, neither of the approaches above suggest that the jury cannot nullify.[78] Such a suggestion limits the opportunities available for social critiques of criminal justice systems because it has the potential to mislead juries into believing that they lack the ability to make social critiques through the use of nullification.

B. The Holding in Sayles Hinders Minority Communities from Using Jury Nullification as a Tool for Decreasing Racial Inequality within Maryland’s Criminal Justice System.

The history of jury nullification is inextricably intertwined with opposition to tyrannical government action and unjust legislation, such as the Fugitive Slave Act.[79] Racism in the United States criminal justice system is not confined to the past; on the contrary, the current incarceration rates for African-American men readily supply evidence of racism’s continued prevalence.[80] Paul Butler hypothesizes that, beyond racially discriminatory enforcement of laws, the United States’ history of disparate treatment towards racial minorities has led to increased crime in such communities.[81] For example, a lack of educational or employment opportunities could induce criminal activity as a means of survival.[82] Additionally, some prisons have virtually no rehabilitative value and may even encourage criminal activity.[83] Thus, Butler asserts that racism creates an environment that breeds crime, and the criminal justice system punishes the inevitable reactions to such an environment.[84]

With this background in mind, some minority communities may even be better off if certain nonviolent offenders remained in the community rather than being incarcerated.[85] Jury nullification provides minority communities a unique opportunity to take an active role in deciding which offenders are detrimental to the community and which are not.[86] Acquitting nonviolent  offenders that a community feels comfortable welcoming home, allows minority communities to combat racially discriminatory enforcement of laws and systematic inequality within the criminal justice system.[87] However, by adopting such a hostile and restrictive approach to jury nullification,[88] the Court of Appeals has placed another obstacle in the path of racial equality.

V. Conclusion

Consistent with most jurisdictions that have tackled the question,[89] the Court of Appeals’ holding in Sayles leaves no doubt that jury nullification is not authorized in Maryland.[90] While the Court’s holding promotes the uniform administration of the law,[91] it fails to advance racial equality in the criminal justice system.[92] Notwithstanding, juries do not require permission from courts to nullify.[93] Therefore, the holding in Sayles may be an obstacle to harnessing the power of jury nullification for social change, but it is not an absolute restriction. To counteract the Court’s refusal to instruct juries on their inherent power of nullification,[94] members of the legal community should actively seek to educate potential jurors about their nullification power and how to apply it responsibly.[95]

*Jeff Neuman is a staff editor for Law Review and a second-year student at the University of Baltimore School of Law. He currently works as a law clerk at Silverman, Thompson, Slutkin & White and is a teaching assistant for Constitutional Law. Jeff is also a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society and a proud Towson University alum. After receiving his J.D., Jeff hopes to work as a civil litigation attorney in Baltimore City.

[1] State v. Sayles, 244 A.3d 1139, 1143 (Md. 2021).

[2] Id. at 1162.

[3] Id. at 1171.

[4] Id. at 1151–52.

[5] See discussion infra Part IV.

[6] Jury Nullification, Black’s Law Dictionary (11th ed. 2019).

[7] United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997).

[8] Sayles, 244 A.3d at 1154.

[9] See Verlo v. Martinez, 820 F.3d 1113, 1119 & n.1 (10th Cir. 2016) (using a functionally equivalent definition of jury nullification then citing the Black’s Law Dictionary definition); United States v. Boone, 458 F.3d 321, 328 n.2 (3d Cir. 2006) (citing the Black’s Law Dictionary definition of jury nullification); United States v. Young, 403 F. Supp. 3d 1131, 1148 (D.N.M. 2019) (quoting the Black’s Law Dictionary definition of jury nullification directly in the opinion).

[10] Thomas, 116 F.3d at 614; see also United States v. Fattah, 914 F.3d 112, 148 (3d Cir. 2019) (citing Thomas, 116 F.3d at 614–18) (“[N]ullification—a juror’s refusal to follow the law—is a violation of the juror’s sworn oath to render a verdict according to the law and evidence.”).

[11] Sayles, 244 A.3d at 1158. In dicta, the Court of Appeals of Maryland recognized that jury nullification sometimes happens, but such does not amount to defining or authorizing the practice. Id. at 1162–63 (citing Chambers v. State, 650 A.2d 727, 730 (Md. 1994)).

[12] Md. Const. art. 23.

[13] Stevenson v. State, 423 A.2d 558, 565 (Md. 1980) overruled on other grounds by Unger v. State, 48 A.3d 242, 262 (Md. 2012); see also Montgomery v. State, 437 A.2d 654, 658 (Md. 1981) (enumerating certain principles that are not the “law of the crime”) overruled on other grounds by Unger, 48 A.3d at 262.

[14] Stevenson, 423 A.2d at 565.

[15] Kazadi v. State, 223 A.3d 554, 559 (Md. 2020).

[16] Sayles, 244 A.3d at 1160 (citing Kazadi 223 A.3d at 559).

[17] Id. at 1158.

[18] Blackwell v. State, 365 A.2d 545, 552–53 (Md. 1976).

[19] Id. at 553 (quoting Hamilton v. State, 277 A.2d 460, 464 (Md. Ct. Spec. App. 1971), aff’d, 288 A.2d 885 (Md. 1972)).

[20] Sayles, 244 A.3d at 1158 (citing Thomas v. State, 349 A.2d 384, 388–89 (Md. Ct. Spec. App. 1975)).

[21] McNeal v. State, 44 A.3d 982, 984 (Md. 2012) (citing Price v. State, 949 A.2d 619, 634 (Md. 2012) (Harrell, J., concurring)).

[22] Id.

[23] Id.

[24] See Price, 949 A.2d at 624.

[25] Id. at 630.

[26] Id. at 634 (Harrell, J., concurring). The court in McNeal explained that the logic for allowing factually inconsistent verdicts is that the process for correcting them could impinge on the jury’s authority as the fact finder. 44 A.3d at 992. For example, jurors could misconstrue a judge’s order to resolve a factual inconsistency as suggesting an outcome or admonishing them for their original conclusion. Id.

[27] See id.; Givens v. State, 144 A.3d 717, 719 (Md. 2016).

[28] Sparf v. United States, 156 U.S. 51, 74 (1895).

[29] See United States v. Drefke, 707 F.2d 978, 982 (8th Cir. 1983) (stating that federal courts have consistently recognized that the jury has a duty to apply the law to the facts and jury nullification instructions are improper); United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (stating that while juries have the power to nullify, they have a duty to apply the law and should not be instructed or encouraged to do otherwise); United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997) (asserting that juries have the power, but not a right, to nullify and such should be prevented if within the court’s power to do so); United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) (stating that juries abuse their power by nullifying and should not be instructed on such power).

[30] See, e.g., Thomas, 116 F.3d at 615.

[31] See Walden v. State, 895 N.E.2d 1182, 1184 (Ind. 2008) (“Indiana juries do not have a broad, general nullification power in criminal cases.”); People v. Partner, 225 Cal. Rptr. 502, 506 (Cal. Ct. App. 1986) (stating that courts have consistently held that although juries have the power to nullify, such power should not be “legitimized in instructions to the jury”); People v. Williams, 21 P.3d 1209, 1223 (Cal. 2001) (reaffirming that jurors are not authorized to engage in jury nullification as it goes against ideals of equal justice for all); People v. Goetz, 532 N.E.2d 1273, 1274 (N.Y. 1988) (noting that although jury nullification is unavoidable, it is not sanctioned and should not be encouraged); Commonwealth v. Fernette, 500 N.E.2d 1290, 1298 n.23 (Mass. 1986) (recognizing that jury nullification sometimes happens but rejecting the idea that jurors have a right to nullify or that they should be informed of such power); Walker v. State, 445 N.E.2d 571, 575 (Ind. 1983) (affirming that the juries right to judge the law does not mean the right to “make, repeal, disregard, or ignore” existing law); Lohmiller v. State, 884 N.E.2d 903, 911 (Ind. Ct. App. 2008) (confirming that the Indiana Constitution does not give juries the right to nullify); People v. Montanez, 667 N.E.2d 548, 553 (Ill. App. 1996) (“The power of jury nullification exists, but it is not authorized by the law.”); Hartley v. State, 653 P.2d 1052, 1055 (Alaska Ct. App. 1982) (“The jury has a duty, albeit unenforceable, to decide a criminal case on the law and the evidence.”); State v. Paredes-Solano, 222 P.3d 900, 908–09 (Ariz. Ct. App. 2009) (explaining that jury nullification is not a legal right but rather an incidental power enabled by the government’s inability to appeal a jury acquittal); Mouton v. State, 923 S.W.2d 219, 221 (Tex. Ct. App. 1996) (“Although jury nullification is a recognized aspect of our jury system, there is no constitutional implication that would require a trial judge to instruct the jury on nullification.”).

[32] Williams, 21 P.3d at 1223.

[33] E.g., Mouton, 923 S.W.2d at 221–22.

[34] See State v. Paris, 627 A.2d 582, 589 (N.H. 1993) (allowing the use of a jury instruction that states jurors “should” find a defendant guilty if the state has met its burden of proof and recognizing that such is the equivalent of a jury nullification instruction); see also State v. Paul, 104 A.3d 1058, 1062 (N.H. 2014) (“The trial court ordinarily gives the Wentworth instruction, which is the equivalent of a jury nullification instruction.”).

[35] State v. Sayles, 244 A.3d 1139, 1152 (Md. 2021).

[36] Id. at 1146.

[37] Id.

[38] Id. at 1147.

[39] Id.

[40] Id.

[41] Id.

[42] Id. at 1148.

[43] Id. at 1148–50.

[44] Id. at 1150 n.8.

[45] Id. at 1151.

[46] Id. at 1145.

[47] Sayles v. State, 226 A.3d 349, 372 (Md. Ct. Spec. App. 2020) cert. granted, sub nom.State v. Johnson, 232 A.3d 258 (Md. Ct. Spec. App. 2020), and cert. granted, sub nom. State v. Oxely, 232 A.3d 258 (Md. Ct. Spec. App. 2020), and cert. granted, 232 A.3d 259 (Md. 2020), and rev’d, 244 A.3d 1139 (Md. 2021).

[48] Id. at 359.

[49] Id. at 367.

[50] Id.

[51] Sayles, 244 A.3d at 1162.

[52] See Black’s Law Dictionary, supra note 6.

[53] See cases cited supra note 10.

[54] Sayles, 244 A.3d at 1162.

[55] Id.

[56] Id. at 1166.

[57] Id. at 1165.

[58] Id. at 1162–65.

[59] E.g.,Blackwell v. State, 365 A.2d 545, 552–53 (Md. 1976).

[60] See supra notes 13–16 and accompanying text.

[61] Sayles, 244 A.3d at 1163.

[62] Id. at 1163–64.

[63] Id. at 1164.

[64] Id. (quoting McNeal v. State, 44 A.3d 982, 984 (Md. 2012)).

[65] Id.

[66] See cases cited supra notes 29, 31.

[67] Sayles, 244 A.3d at 1164.

[68] Id. at 1171 (Hotten, J., dissenting).

[69] Id. at 1173.

[70] Id.

[71] Id. at 1164 (majority opinion) (“[J]ury nullification is neither authorized nor sanctioned in Maryland.”).

[72] See id. at 1173 (Hotten, J., dissenting).

[73] See cases cited supra note 34.

[74] Sayles, 244 A.3d at 1162 (quoting Chambers v. State, 650 A.2d 727, 730 (Md. 1994)) (Juries “always have the ability to nullify the application of the criminal law to a particular defendant.”).

[75] State v. Paul, 104 A.3d 1058, 1059 (N.H. 2014) (“The defendant argued that the distinction between ‘must’ and ‘should’ within the Wentworth instruction is too subtle and does not adequately apprise the jury of its ability to nullify.”).

[76] United States v. Sepulveda, 15 F.3d 1161, 1189–90 (1st Cir. 1993) (finding that a supplemental instruction informing the jury why the court could not instruct jurors on jury nullification was not erroneous).

[77] Sayles, 244 A.3d at 1155, 1164; see also cases cited supra note 29.

[78] See Sayles, 244 A.3d at 1173 (Hotten, J., dissenting).

[79] See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 701–03 (1995); Sayles, 244 A.3d at 1172 (Hotten, J., dissenting).

[80] See Butler, supra note 79, at 695–97.

[81] See id. at 693–94 (discussing the connection between racism and crime in the African American community).

[82] See id.

[83] See id. at 718.

[84] See id. at 694.

[85] See id. at 679.

[86] See id. at 712, 715.

[87] See id. at 694–97.

[88] See State v. Sayles, 244 A.3d 1139, 1173 (Md. 2021) (Hotten, J., dissenting).

[89] See cases cited supra notes 29, 31.

[90] Sayles, 244 A.3d at 1164.

[91] See People v. Williams, 21 P.3d 1209, 1223 (Cal. 2001).

[92] See discussion supra Part IV, Section B.

[93] E.g., Sparf v. United States, 156 U.S. 51, 74 (1895).

[94] Sayles, 244 A.3d at 1171.

[95] See generally Butler, supra note 79, at 715–25.

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