Jury Right to Nullify

For more than 300 years, jurors have had the power to nullify, that is, "to disregard the court's instructions and the evidence presented and return a verdict of acquittal" where the law and the evidence dictate otherwise. ( People v. Fernandez (1994) 26 Cal. App. 4th 710, 714; People v. Baca (1996) 48 Cal. App. 4th 1703, 1707, citing Bushell's Case (1670) 124 Eng.Rep. 1006; United States v. Dougherty (D.C. Cir. 1972) 154 U.S. App. D.C. 76, 473 F.2d 1113, 1130, citing Bushell's Case, supra.) The use of the general verdict and the bar against double jeopardy prevent any meaningful challenge to the exercise of this power. ( People v. Fernandez, supra, 26 Cal. App. 4th at p. 714; United States v. Dougherty, supra, 473 F.2d at pp. 1130-1132; U.S. v. Thomas (2d Cir. 1997) 116 F.3d 606, 615-616.) While the power to nullify exists, however, there is no concomitant right to nullify. Indeed, the idea that there exists such a right is a "notion [with] virtually no support in modern American precedent." ( People v. Baca, supra, 48 Cal. App. 4th at p. 1707; accord U.S. v. Thomas, supra, 116 F.3d at p. 615.) The jury "only has the right to find the facts, and apply to them the law as given by the court." ( People v. Lem You (1893) 97 Cal. 224, 228, 32 P. 11, overruled on another ground in People v. Kobrin (1995) 11 Cal. 4th 416, 427, fn. 7, 903 P.2d 1027.) For this reason, trial courts are not required to instruct jurors that they possess the power to nullify. ( People v. Dillon (1983) 34 Cal. 3d 441, 487-488, fn. 39, 194 Cal. Rptr. 390, 668 P.2d 697; People v. Sanchez (1997) 58 Cal. App. 4th 1435, 1445-1446; People v. Baca, supra, 48 Cal. App. 4th at pp. 1707-1708; United States v. Dougherty, supra, 473 F.2d at pp. 1136-1137.)