ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY BOWES STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
RONNIE HOLDEN, )
) Supreme Court Cause Number
Appellant (Defendant), ) 49S02-0202-CR-153
)
v. )
)
STATE OF INDIANA, ) Court of Appeals Cause Number
) 49A02-0101-CR-44
Appellee (Plaintiff). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-0006-CF-046689
CRIMINAL TRANSFER
May 30, 2003
RUCKER, Justice
Case Summary
After a trial by jury Ronnie Holden was convicted of three counts of
forgery as Class C felonies and one count of forgery as a Class D felony.
Holden appealed raising several issues for review. All were rejected by
the Court of Appeals, which affirmed the trial court’s judgment in an
unpublished Memorandum Decision. Holden v. State, No. 49A02-0101-CR-44
(Ind. Ct. App. Aug. 29, 2001). We agree the judgment of the trial court
should be affirmed. Having previously granted transfer, we now address one
of the issues Holden raises for our consideration.
Discussion
Article I, Section 19 of the Indiana Constitution provides “In all
criminal cases whatever, the jury shall have the right to determine the law
and the facts.” Holden argues the trial court erred in refusing to give an
instruction advising the jury, among other things, “[w]hile this provision
does not entitle you to return false verdicts, it does allow you the
latitude to refuse to enforce the law’s harshness when justice so
requires.” Appellant’s App. at 61. Holden’s argument is inspired at least
in part by a Law Review article written by the author of this opinion. See
Honorable Robert D. Rucker, The Right to Ignore the Law: Constitutional
Entitlement Versus Judicial Interpretation, 33 Val. U. L. Rev. 449 (1999).
Tracing the history of the doctrine that allowed juries to determine both
the law and the facts in criminal cases, the article reached several
conclusions. One conclusion was that “an instruction telling the jury
that the constitution intentionally allows them latitude to ‘refuse to
enforce the law’s harshness when justice so requires’ would be consistent
with the intent of the framers and give life to what is now a dead letter
provision.” Id. at 481 (footnote omitted).
The general thrust of the article is that Article I, Section 19
amounts to a constitutionally permissible form of jury nullification. That
is, under the Indiana Constitution the jury has the right to return a
verdict of not guilty despite the law and the evidence where a strict
application of the law would result in injustice and violate the moral
conscience of the community. Although jury nullification has been
variously defined, this is its central tenet. See, e.g., Jeffrey Abramson,
We, The Jury 57 (1994) (defining nullification as the jurors’ “right to
refuse to enforce the law against defendants whom they believe in good
conscience should be acquitted”); Clay S. Conrad, Jury Nullification: The
Evolution of a Doctrine 7 (1998) (defining nullification as the jurors’
“right to refuse to convict if they believe that a conviction would be in
some way unjust”); Irwin A. Horowitz, et al., Jury Nullification: Legal and
Psychological Perspectives 66 Brook. L. Rev. 1207, 1208 (2001) (defining
the term as the “power to acquit defendants despite evidence and judicial
instructions to the contrary” and noting that its purpose is to “return an
acquittal when strict interpretation of the law would result in an
injustice and violate the moral conscience of the community”).
It is historically accurate to say that a jury’s right in a criminal
case to “determine the law and the facts” has a long and distinguished
history that can be traced from medieval England through the seditious
libel trial of New York publisher John Peter Zenger. See generally Rucker,
supra, at 449-55. It is also true that early case authority in this state
stood for the proposition that the jury’s law determining function meant
that the jury could “disregard” the instructions of the trial court.
However, on closer examination it appears that the right to disregard the
trial court’s instructions has never been equated as a right to disregard
“the law.” This point is best illustrated by a case decided forty-one
years after Article I, Section 19 was ratified. The trial court gave the
following instruction:
You, gentlemen, in this case, are the judges of law as well as of the
facts. You can take the law as given and explained to you by the
court, but, if you see fit, you have the legal and constitutional
right to reject the same, and construe it for yourselves.
Blaker v. State, 130 Ind. 203 (1892). On appellate review the Supreme
Court approved the instruction but admonished, “the Constitution gives to
juries in criminal cases the right to determine the law as well as the
facts. It does not, however, give to them the right to disregard the law.”
Id. at 204-05.
In the early days of the republic there was much debate over whether
under federal jurisprudence a jury had the right to “determine the law” in
a criminal case. A number of cases held that indeed the jury had such a
right, if not under the Federal Constitution, then at least under the
federal common law. See, e.g., Mark DeWolfe Howe, Juries as Judges of
Criminal Law, 52 Harv. L. Rev. 582, 589 (1939) (noting that federal courts
until 1835 had consistently instructed juries that they were “the judges of
both the law and the fact in a criminal case, and are not bound by the
opinion of the court.”) (footnote omitted). However, in Sparf v. United
States, 156 U.S. 51 (1895), the Supreme Court put to rest any notion of a
jury’s right to determine the law. Although an exhaustive and painstaking
dissent took the majority to task for its decision, even the dissent
maintained that the jury was required to “decide by the law as they know or
believe it to be.” Id. at 172 (Gray, J., dissenting).
Apart from case authority, recent scholarly literature also sheds
light on the meaning and scope of a jury’s right to determine the law in
criminal cases. For example one commentator has observed, “Although
Eighteenth Century juries were invited to find both law and facts and not
feel bound by the interpretation of the law offered by trial judges, they
were admonished to apply the law as they understood it. The independence
of jurors in this regard did not countenance deciding disputes in total
disregard of the applicable common or other law.” Lars Noah, Civil Jury
Nullification, 86 Iowa L. Rev. 1601, 1620 (2001) (footnote omitted).
Another commentator noted “the right to decide the law was neither
equivalent to today’s proposed right to nullify, nor did it encompass the
right to nullify. To the contrary, the right to decide the law swept
narrowly, placing a clear duty on juries to follow the law as they saw it,
rather than reject the law as pro-nullification scholars would have them
do.” David A. Pepper, Nullifying History: Modern-Day Misuse of the Right
to Decide the Law, 50 Case W. Res. L. Rev. 599, 609 (2000).
Although there may be some value in instructing Indiana jurors that
they have a right to “refuse to enforce the law’s harshness when justice so
requires,” the source of that right cannot be found in Article I, Section
19 of the Indiana Constitution. This Court’s latest pronouncement on the
subject is correct: “[I]t is improper for a court to instruct a jury that
they have a right to disregard the law. Notwithstanding Article 1, Section
19 of the Indiana Constitution, a jury has no more right to ignore the law
than it has to ignore the facts in a case.” Bivins v. State, 642 N.E.2d
928, 946 (Ind. 1994) (citation omitted). The trial court in this case
properly refused to give Holden’s tendered instruction.
Conclusion
We grant transfer and affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.