The opinion of the Court was delivered by
WILENTZ, Chief Justice.
In this matter we reconsider, pursuant to the State’s motion, our decision reversing the judgment of the Appellate Division and remanding the matter to the trial court for a new trial, State v. Ragland, 101 N.J. 33 (1985). Reconsideration has not persuaded us to change that decision.
Defendant, Gregory Ragland, was convicted by a jury of conspiracy to commit armed robbery, unlawful possession of a weapon, and unlawful possession of a weapon without a permit. Another charge against him, possession of a weapon by a convicted felon (N.J.S.A. 2C:39-7), was severed on defense counsel’s motion in order to avoid the inevitable prejudice in the trial of the other charges that would be caused by introducing defendant’s prior felony conviction, an essential element in the severed charge. The prior conviction was not admissible to impeach defendant’s credibility, since he did not testify.
After the jury’s guilty verdict, the severed charge was tried before the same jury. That jury had just convicted defendant of charges that necessarily included a finding that defendant was in “possession of a weapon.” The severed charge, as noted above, was possession of a weapon by a convicted felon. Included in the trial court’s instructions on the severed charge was the following:
If you find that the defendant, Gregory Ragland, was previously convicted for the crime of robbery and that he was in possession of a sawed-off shotgun, as you have indicated ... then you must find him guilty as charged by this Court.
If, on the other hand, you have any reasonable doubt concerning any essential element of this crime, then you will find him not guilty. [Emphasis supplied.]
Defendant appealed, claiming that the foregoing portion of the instruction, in particular the emphasized part, deprived him of his right to a fair trial by jury since it amounted to an [193]*193instruction to the jury not to consider independently the question of possession but rather to abide by its prior determination of that fact. Defendant’s claim was that in effect the court was charging collateral estoppel on that issue. The Appellate Division affirmed, 198 N.J.Super. 330 (1985), holding that the jury was free to make a new independent finding on the possession issue. We reversed and remanded the matter to the Appellate Division for reconsideration in light of State v. Collier, 90 N.J. 117 (1982), and State v. Ingram, 98 N.J. 489 (1985). 101 N.J. 251 (1985). On remand the Appellate Division again affirmed, holding that the jury instruction did not amount to a directed verdict on the possession element of the charge. 203 N.J.Super. 192 (1985). We again reversed, finding “that the unavoidable effect of the charge was to direct a guilty verdict” on the severed count, and remanded the matter for a new trial. 101 N.J. 33 (1985). It is this last mentioned decision that we now reconsider, on the State’s motion.
I.
This case presents the unique problem that arises when a defendant is charged at the same time with unlawful possession of a weapon and possession of a weapon by a convicted felon. The two charges must be tried separately since proof that defendant was a convicted felon (required in the trial of the latter charge) clearly tends to prejudice the jury in considering the former. If defendant is convicted of unlawful possession of the weapon, the trial of the latter charge (possession by a convicted felon), unless most carefully handled, can amount to a prohibited directed verdict in a criminal case. This, because the jury has already found by its initial conviction that the defendant possessed a weapon. If that same jury is told, in the immediately following trial of the charge of possession by a convicted felon, that it need not concern itself with the question of possession since it has already found that fact by its prior conviction, the defendant is, in effect, deprived of that trial by jury to which he is entitled, namely, one in which the jury .must [194]*194find that the State has proved each and every material element of the crime beyond a reasonable doubt. See, e.g., State v. Grunow, 102 N.J. 133, 145 n. 5 (1986); State v. Toscano, 74 N.J. 421, 442-43 (1977). Absent careful instructions, the jury will have been told, in effect, that it need not find possession beyond a reasonable doubt because it has already found it in the prior trial.
Such a case, where conviction of unlawful possession is then followed, using the same jury, by a trial for possession by a convicted felon, is a charade in the absence of carefully limiting charges. Introduction of, or reference to, the same jury’s unlawful possession conviction, coupled with admission of the prior felony conviction, leads to an almost guaranteed conviction of the crime of possession by a convicted felon. That such a conviction is clearly warranted is beside the point: the problem here is assuring that the defendant is given a fair trial.
The charges are severed for the protection of the defendant. Severance is customary and presumably automatic where it is requested because of the clear tendency of the proof of the felony conviction to prejudice trial of the separate charge of unlawful possession of a weapon. In State v. Ingenito, 87 N.J. 204 (1981), a different jury tried the second charge (possession by a convicted felon). It was given evidence of the prior jury’s conviction of unlawful possession in such a manner, we found, as to amount to a direction that it must find possession. We deemed it the equivalent of collateral estoppel in a criminal case and found it improper. Id. at 213-17. We held that the second jury must clearly be instructed that it remains the State’s burden to prove beyond a reasonable doubt, regardless of the prior conviction, that defendant possessed a weapon and, again beyond a reasonable doubt, that at that time he was a convicted felon. It was not enough to produce the prior conviction of unlawful possession; indeed, it was improper to do so.
Noting the waste that results when the issue of possession must again be proved before a new jury, we referred to the [195]*195possibility of the same jury trying both counts sequentially, as suggested at that time by the Attorney General. Id. at 217 n. 6. That is what happened here. The same jury first found the defendant guilty of unlawful possession and thereafter, at a “new” trial, guilty of possession by a convicted felon. Obviously this same jury, having found possession beyond a reasonable doubt in the first trial, is strongly inclined to find it once again an hour later when the “new” trial starts on the charge of possession by a convicted felon. It becomes essential, therefore, that the jury be instructed in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict. That there is a certain make-believe quality in such an instruction must be conceded since it is most unlikely that the jury will indeed forget its prior verdict. Nevertheless, the defendant is entitled to that instruction for on the “new” trial, the defendant is entitled to the presumption of innocence and, as a consequence of that, to an instruction that each and every material fact that makes up the crime, including obviously the fact of possession, must be proven by the State beyond a reasonable doubt.
There is a cost, therefore, to this efficiency, for there is the possibility that the jury will not independently review the facts again on the issue of possession, since it has only recently found that to be a fact. That cost, however, seems preferable to the cost of trying the two charges together, with the wholly impermissible prejudice that the felony conviction can cause, or trying the two charges independently with two different juries, with the waste of everyone’s time involved in re-introducing evidence that has already been admitted.
What is needed in such a matter is a strong instruction to the jury to disregard its prior verdict of possession (for nothing short of that will suffice — unless defendant affirmatively requests that such charge not be given), advising the jury that it is the State’s burden to prove that fact beyond a reasonable doubt, allowing the jury, however, to consider the [196]*196evidence that had previously been brought before it on the possession charge. In this case not only was no such charge given, but the judge affirmatively reminded the jury that it had already found that the defendant possessed the weapon (“if you find that the defendant ... was in possession of a sawed-off shotgun, as you have indicated ...” (emphasis supplied)). Such a charge is manifestly improper,, and no amount of reminder to the jury that it remains the State’s burden to prove each element beyond a reasonable doubt will cure it. We need not determine whether this error was harmless beyond a reasonable doubt, for when the constitutional deprivation consists of a directed verdict, preservation of the integrity of the right to trial by jury requires reversal. Cf. State v. Collier, supra, 90 N.J. at 123 (directed verdict, affirmative finding that error was harmful).
For that reason we remanded the case to the Appellate Division, citing Collier and Ingram, and for that reason we again reversed, after the Appellate Division again affirmed the conviction, remanding to the trial court for a new trial, which ruling we now decline to disturb on reconsideration.
We referred to Collier in our reversals because in that case there was an explicit direction of a verdict of guilty. We referred to Ingram since it was another instance where the risk of a result similar to a directed verdict required a clear charge concerning the State’s burden of proving each element of the crime (statutory presumption of no weapons permit does not release State of burden of proof). We were also disturbed by the use of the word “must” in this context, when, immediately after advising the jury that it had “indicated” possession by its prior verdict, the trial judge said “then you must find him guilty as charged by this court.” Since our opinion (101 N.J. 33) was followed by our request to our Committee on Model Criminal Jury Charges to conform those charges to that opinion, our opinion in the case was generally understood as prohibiting instructions in [197]*197any criminal case that “you must find him guilty as charged by this court.” It was this reading of our opinion that caused the Attorney General (supported by the County Prosecutors Association) to request reconsideration, and it was this issue that was practically the exclusive subject of briefing and oral argument on the reconsideration motion. It is noteworthy that up until that time, defendant had never contended that the use of such language was improper. That is not surprising, for such language is often found in criminal charges in this state, and as far as we know, has always been found acceptable. See, e.g., State v. Grunow, supra, 102 N.J. at 145 (quoting model jury charge using clause “then you must find the defendant guilty of manslaughter”); State v. Headley, 113 N.J.L. 335, 337 (Sup.Ct.1934) (quoting with approval jury charge including clause “then you must find the defendants guilty as charged”); State v. Agnesi, 92 N.J.L. 638, 639-40 (E. & A.1919) (Walker, Chancellor, concurring) (approving charge instructing jury that “they could not under any circumstances acquit [defendant], but must find him guilty of manslaughter at least” (emphasis in original)). What was surprising was this Court’s apparent intent to prohibit such language in the future.
We have considered this new issue and conclude that use of the word “must” is not erroneous in this charge and in other jury charges. The question has not often been clearly litigated. Nonetheless, federal and state courts have held, albeit sometimes in dicta, that the use of “must” in a jury charge is appropriate. See, e.g., Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961) (noting instruction to jury that if it found “that the Government has sustained [its] burden ... beyond a reasonable doubt ... then you must find the defendant guilty”); Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1894) (quoting with approval instruction to jury that “if you believe the evidence in the whole case, you must find the defendant guilty”); United States v. Cunningham, 423 F.2d 1269 (4th Cir.1970) (holding that instructing a jury “you must find the defendant guilty” was not reversible [198]*198error in light of the totality of the jury charge); Watts v. United States, 362 A.2d 706 (D.C.Ct.App.1975) (holding that “must find defendant guilty” did not improperly direct a verdict); Baker v. United States, 324 A.2d 194, 199-200 (D.C.Ct. App.1974) (Harris, J., concurring) (“must find defendant” guilty, held not to improperly direct a verdict); State v. Devoe, 301 A.2d 541 (Me.1973) (instruction that jury “must find that the assault was a high and aggravated assault,” did not deprive jury of its function of determining the degree of the homicide (emphasis in original)); Straughter v. State, 247 A.2d 202 (Del.1968) (instruction to jury that it “must” return verdict of murder in second degree did not impinge on jury’s function to determine gravity of the offense). But see United States v. Hayward, 420 F.2d 142 (D.C.Cir.1969) (holding that instruction that jury, if convinced beyond a reasonable doubt, “must find the defendant guilty” was improper even if it was “an honest oversight” by court; such instruction impinged on jury’s function); Billeci v. United States, 184 F.2d 394 (D.C.Cir.1950) (holding inter alia that use of “must find the defendant guilty” was improper; proper instruction required “should”); People v. Gillespie, 54 Mich.App. 419, 221 N.W.2d 246 (1974) (holding that instructing a jury that under Michigan law “you must find ... the defendant ... [guilty] ... you have no discretion to reach a contrary decision” was reversible error).1
[199]*199What emerges from this authority is that the United States Constitution does not appear to invalidate such a charge;2 that state authority is divided — although, on balance, sustaining its propriety; and that New Jersey has never clearly decided the issue. We therefore examine what rule best serves the interests involved in the right to trial by jury.3
II.
It is conceded that the “must” charge is widely used in New Jersey and has been as long as anyone can remember. Defendant refers to the instructions as “commonly used in this jurisdiction” and acknowledges that the “must” charge is found in our model jury charges — frequently, we might add. Defendant calls it “our current system of instructing jurors.” We agree. While our review, for this purpose, of jury charges in criminal matters recently before us, as well as our recollection, indicates a great variety in the language used to instruct a jury concern[200]*200ing its responsibilities, the “must find him guilty” format is there in abundance. And so are many other formulations.4
The defendant would require a charge that states, in effect, that if the jury does not find a, b and c beyond a reasonable doubt, it must find defendant not guilty, but that if it does find a, b and c beyond a reasonable doubt, then it may find defendant guilty.5 In support of this change in present practice, defendant contends that the jury’s power of nullification — the unquestioned power of the jury to acquit with finality no matter how overwhelming the proof of guilt — is an essential attribute of a defendant’s right to trial by jury; that use of the word “must” conflicts with that attribute, for it incorrectly advises the jury that if it finds the proof of guilt beyond a reasonable doubt it must convict, whereas the truth is that it need not do so, it may, in fact, acquit; that “must” convict, therefore, should never be used. While noting that the word “should” “is [201]*201better than ‘must,’ ” defendant would also prohibit the use of that word in connection with the guilty charge since when the court says it “should” convict, the jury will believe that the court means it “must.”
While defendant’s arguments suggest that the ultimate object is to assure that the jury is not impeded by this coercive language from performing its proper role, the effect of the change is somewhat different. Its only effect, its only tendency, is to make it more likely that juries will nullify the law, more likely, in other words, that no matter how overwhelming the proof of guilt, no matter how convinced the jury is beyond any reasonable doubt of defendant’s guilt, despite the law, it will acquit. Even without an explicit charge on the power of nullification, the jury must understand from this contrasting language {must acquit but may convict) that it is quite properly free, and quite legally free (since it is the court who is telling it “may”) to acquit even if it is convinced beyond a reasonable doubt of defendant’s guilt. Whether the contrast is as clear as “must” and “may,” or is expressed in some other way (e.g., “you are authorized to find the defendant guilty,” “a guilty verdict would be considered valid or proper,” “you have the responsibility to return a guilty verdict,” “the State is entitled to the return of a guilty verdict” — all contrasting with “you must acquit”), the message, intended by the charge and so understood by the jury, is that you have the power to nullify and it is permissible for you to do so.
This change in our settled practice, this attempt to modify our present instructions to the jury in order to allow for the uninhibited, robust, exercise of its nullification power, is not commanded by the United States Constitution, the New Jersey Constitution, any statute, or by the common law. The implication of defendant’s argument is that the use of the word “must” in this connection violates both his federal and state constitutional rights, since the protected right — nullification—is described in terms of an essential attribute of defendant’s right to trial by jury. We have been able to find but one federal case [202]*202that supports the defendant’s argument, United States v. Hayward, 420 F.2d 142 (D.C.Cir.1969). This seventeen-year-old case has not been followed in other federal courts on this proposition. The overwhelming weight of authority is to the contrary, namely, even in those cases where the use of the word “must” is discouraged, it is not as a result of a constitutional command. While constitutional rights do not atrophy through lack of use, the fact that it has taken more than two hundred years, in New Jersey at least, to make this constitutional assertion suggests its lack of constitutional basis.
There is no statute that requires this change. As for the common law, all that the New Jersey cases require is that there be no directed verdict in a criminal case. The use of the word “must,” of course, is not the same as a directed verdict. It is not even its functional equivalent. A directed verdict results when the court instructs the jury to find the defendant guilty of a particular charge, as the trial court did in State v. Collier, supra, 90 N.J. 117. There the court “directed the jury] to find the defendant guilty of contributing ...” to the delinquency of a minor. After noting that “no matter how compelling the evidence, a trial court may not direct a verdict against a defendant in a criminal case,” id. at 122, and that “in addition ‘appropriate and proper charges to a jury are essential for a fair trial,’ ” we said:
At the heart of the guarantee of a fair trial is the “jury’s impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions....”
[90 N.J. at 122, quoting from State v. Simon, 79 N.J. 191, 206 (1979) (emphasis supplied).]
The harm of the directed verdict in that case, as in any criminal case, is that it deprived the jury of the power to determine guilt; there is no suggestion or hint in the case that once having determined guilt, the jury’s power thereafter to nullify its own determination is entitled to similar protection.
In State v. Ingenito, supra, 87 N.J. 204, we held that the evidentiary use of a prior conviction by another jury of the [203]*203crime of unlawful possession amounted to a “collateral estoppel” on the possession issue in the trial of the charge of possession by a convicted felon. The prior jury’s verdict and conviction, being the only proof of possession (the underlying proofs that led to that conviction were not introduced), the jury had effectively been stripped of its fact-finding role. We held that this was the functional equivalent of a directed verdict. We noted that in addition to its fact-finding function, “the jury in the trial of a criminal case is responsible also for finding the truth. This entails not only the determination of basic facts but also the ultimate question of guilt or innocence.” Id. at 211. We recalled the fact that the jury “has the prerogative of returning a verdict of innocence in the face of overwhelming evidence of guilt.” But mixed in with those observations we asserted that the “duties inherent in the jury function include ... deciding the ultimate guilt or innocence of a defendant in light of the underlying evidence.” Id. at 212 (emphasis supplied). We had previously stated in that case that “in the discharge of these fundamental responsibilities, the jury must consider solely the evidence adduced in the case before it.” Id. at 211, citing Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468, 475 (1978) (emphasis supplied). Ingenito is but another case where the jury’s function of determining the facts and the application of the law to those facts was denied it by virtue of reference to another jury’s determination; we emphasized the requirement that the jury consider solely the evidence before it (as distinguished from its own notion of what is right and wrong) and decide the case accordingly.
State v. Simon, 79 N.J. 191 (1979), is sometimes cited in support of the right of a jury to determine innocence despite overwhelming proof to the contrary. In that case certain special questions were submitted to the jury before it was given the responsibility of determining guilt or innocence. The Court found that those questions subliminally suggested guilt, that they conditioned the jury to think in terms of guilt. The [204]*204strength of the tendency of pressuring the jury to find guilt was suggested by the quotation the Court used from United States v. Bosch, 505 F.2d 78, 78-79 (5th Cir.1974): “The special interrogatories which were used to narrow the issues for the jury may have required them to return a verdict of guilty even though they found that all elements of the offense had not been proved.” (Emphasis supplied.) Later references in that case to the jury’s right “as the conscience of the community ... to look at more than logic,” State v. Simon, supra, 79 N.J. at 208, or its right to return a verdict of not guilty even if the proofs “show unmistakably that an accused had committed an offense” are appropriate observations in the context of a case where the jury had been “convert[ed] to belief in guilt.” Id. at 207. State v. Simon is no advocate for nullification. Its concern is “with the court’s duty to assure that the jury is able properly to discharge its most important responsibility in a criminal trial, determining guilt or innocence.” Id. at 206. What is the court’s responsibility in this connection? State v. Simon answers: “This judicial obligation, to assure the jury’s impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions, is at the core of the guarantee of a fair trial.” Id. at 206 (emphasis supplied).
There is no common law in New Jersey to the contrary, either in recent or ancient cases. The concern, in New Jersey as elsewhere, is to rigorously protect the jury’s independence in determining the facts and applying those facts to the law; based solely on those findings, the jury determines guilt or innocence; no case in New Jersey purports to protect the jury’s “right” to announce a verdict of acquittal despite its determination of guilt, although many recognize the power.
III.
We conclude that the power of the jury to acquit despite not only overwhelming proof of guilt but despite the jury’s [205]*205belief, beyond a reasonable doubt, in guilt, is not one of the precious attributes of the right to trial by jury. It is nothing more than a power. By virtue of the finality of a verdict of acquittal, the jury simply has the power to nullify the law by acquitting those believed by the jury to be guilty. We believe that the exercise of that power, while unavoidable, is undesirable and that judicial attempts to strengthen the power of nullification are not only contrary to settled practice in this state, but unwise both as a matter of governmental policy and as a matter of sound administration of criminal justice.
It is only relatively recently that some scholars have characterized this power as part of defendant’s right to trial by jury and have defended it as sound policy. See, e.g., Scheflin, Jury Nullification: The Right to Say No, 45 S.Cal.L.Rev. 168 (1972); Kaufman, The Right of Self-Representation and the Power of Jury Nullification, 28 Case W.Res. 269 (1978). Like defendant, they take the position that the exercise of the power is essential to preserve the jury’s role as the “conscience of the community.”
There are various elements in this view of the jury as the “conscience of the community.” Some laws are said to be unfair. Only the jury, it is thought, is capable of correcting that unfairness — through its nullification power. Other laws, necessarily general, have the capacity of doing injustice in specific applications. Again, only the jury can evaluate these specific applications and thereby prevent injustice through its nullification power. Cast aside is our basic belief that only our elected representatives may determine what is a crime and what is not, and only they may revise that law if it is found to be unfair or imprecise; only they and not twelve people whose names are picked at random from the box.
Finally, there is an almost mystical element to this contention about the “conscience of the community”: before anyone is imprisoned, that person is entitled to more than a fair trial even when such a trial is pursuant to a fair law. He is entitled to [206]*206the benefit of the wisdom and compassion of his peers, entitled to the right to have them conclude that he is guilty beyond any doubt, but that he shall be acquitted and go free because of some irrational, inarticulable instinct, some belief, some observation, some value, or some other notion of that jury.
If the argument is that jury nullification has proven to serve society well, that proof has been kept a deep secret. It is no answer to point to the occasions when laws that are deemed unjust have, in effect, been nullified by the jury. That proves only that the power may have done justice in those limited instances, without reflecting on whether, even in those instances, the cost of that justice exceeded its benefit, or whether in other instances it has done more harm, on balance, than the good. We know so little about this power that it is impossible to evaluate it in terms of results.
Since there is neither constitutional nor other legal authority mandating the proposed change in jury instructions, its ultimate justification must be that this new formulation of the proper charge is desirable; desirable that a jury should not be compelled to follow the law, for compulsion to follow the law is the natural tendency of the use of the word “must”; desirable that a jury should be left free to ignore the law, for that is the obvious tendency of telling the jury simply that it “may,” or is “authorized” to, bring in a verdict of guilty, after saying it “must” find defendant not guilty. If indeed this is a desirable state of affairs, then the jury should be told of its power, so as to leave no doubt that the jury knows it is not compelled to bring back a guilty verdict despite its finding beyond a reasonable doubt that the defendant has committed the crime. The point here is different from that of those who say they are not sure whether the nullification power is desirable or undesirable, but since it exists, the jury should be told about it — an argument discussed later in this opinion. See infra at 208. Defendant’s position is that the nullification power is one of the essential attributes of his right to trial by jury, and that it is [207]*207desirable. Given that premise, the conclusion is inescapable— the jury should be told.
Other consequences should follow a conclusion that the nullification power is desirable. Counsel should be told that they may address that point in summation, 6 that defense counsel should be allowed to argue to the jury that it should not apply the law given by the court, but rather should follow its own conscience, along with whatever argument counsel deems persuasive, and the prosecutor similarly should address these otherwise irrelevant issues, presumably including an encomium on law and order. If the court makes introductory remarks to give the jury some idea of its role (as is customary), it should add to the usual explanation — that the jury is the finder of the facts and the judge is the finder of the law — the qualification that ultimately, regardless of the facts and regardless of the law, the jury, and only the jury, will determine guilt or innocence. On voir dire, potential jurors, in addition to being asked whether they believe they will be able to obey the court’s charge, should also be asked if they believe they will be able to ignore the court’s charge. If the nullification power is desirable, then, obviously, juries should include only those people who are capable of exercising it.7
[208]*208If we are correct, that is, if such a change in the charge given to the jury is not compelled either by constitution, by statute, or by common law, then the question boils down to one of policy and the power of this Court. In deciding that question, it is essential to recognize precisely what we are talking about. There is no mystery about the power of nullification. It is the power to act against the law, against the Legislature and the Governor who made the law. In its immediate application, it transforms the jury, the body thought to provide the ultimate assurance of fairness, into the only element of the system that is permissibly arbitrary. And in its immediate application, it would confuse any conscientious citizen serving on a jury by advising that person, after the meticulous definition of the elements of the crime, the careful description of the burden of proof, and the importance of the conscientious discharge of that person’s duties, that, after all is said and done, he can do whatever he pleases. Spectators, formerly amazed at verdicts that clearly violated the law (namely, verdicts that suggested that the jury had nullified the law), will be comforted to know that there is nothing to be amazed about, that juries are not required to follow the law, that they are advised that one of their important functions is not to follow the law, and that this advice is given by the ultimate symbol of lawfulness, the judge. It is difficult to imagine a system more likely to lead to cynicism.
There is another point of view that accepts the existence of the power as a fact, regardless of its desirability, and concludes that if we cannot eliminate it, we should at least make its application equal by making sure every jury knows of it. There is a surface appeal to the equality advocated. If one believes, however, that the exercise of the power is essentially arbitrary, [209]*209the position that every jury should be advised of this power is seen as leading not to more equality but to more arbitrary results. That is not the sole reason for opposing such a position, however. What may be more important than minimizing these arbitrary results is the question of society’s determination to make the jury system work as rationally as possible. The cynicism and disbelief that are encouraged by such instructions to a jury, including, especially, the instruction that tells the jury it need not listen to instructions, are more to be avoided than even the arbitrariness likely to affect the jury’s final determination.
The fundamental defect in jury nullification is obvious. It is a power that is absolutely inconsistent with the most important value of Western democracy, that we should live under a government of laws and not of men. There are many manifestations of the concept of a “government of laws,” and one of the most important is its operation in the administration of criminal justice. It is there that the sovereign is visibly restrained, it is there that we can see most clearly the application of this hard-earned rule, the rule that no one, to the extent man is capable of achieving this goal, no one, shall be found to have violated society’s commands unless that command is first announced and then only after a group of free people, hearing all of the evidence, determine that the accused has violated the command. With jury nullification, these free people are told, either explicitly or implicitly, that they are the law, that what the sovereign has pronounced ahead of time either may or may not be followed, and that if they want to, they may convict every poor man and acquit every rich man; convict the political opponent but free the crony; put the long-haired in jail but the crew-cut on the street; imprison the black and free the white; or, even more arbitrarily, just do what they please whenever they please.
One of the biggest problems in the administration of criminal justice is the inequality of its enforcement, an inequality that starts with the inability to find all of its violators (it is some[210]*210times estimated that only one out of ten violators is apprehended) and then apply the law equally to those who are caught. The extent to which the inequality at that point varies depends upon prosecutorial discretion, the differences in the abilities of counsel, and the varying strength and wisdom of judges. But at every stage of the proceeding, from the work of the police and the prosecutor’s office, to the actions of a grand jury and the work of the judiciary at trial, all elements strive, at least consciously, for one goal, and that is the equal application of the law to all accused, so that all who are guilty are found guilty and all who are innocent are acquitted. Absolutely nowhere in the system is there some notion that someone should have the power, arbitrarily, to pick and choose who shall live and who shall die. But that is precisely what jury nullification is: the power to undo everything that is precious in our system of criminal justice, the power to act arbitrarily to convict one and acquit another where there is absolutely no apparent difference between the two. It is a power, unfortunately, that is there, that this Court cannot terminate, but a power that should be restricted as much as possible. The defendant would enshrine that power, in effect pronounce it one of the precious rights of a defendant, and thereby weaken our system of criminal justice and our dedication to fairness in prosecuting criminals.
The underlying fault of nullification is its total arbitrariness. No one knows what causes it or whether what causes it in one instance causes it in another. No one knows what factors are at play. No one tells a jury what the standards are that should be considered in exercising jury nullification, and no jury advises what standards it applied, or that it applied any. The very nature of the power is that it is absolute, unguided, not to be explained. There is no quality that it lacks if the goal is arbitrariness; it is totally and perfectly arbitrary.
Its existence in our system of criminal justice is almost ludicrous. There is no system more carefully designed to assure not simply that the innocent go free, but that at every [211]*211step of the way the proceedings are directed toward a rational result. The lengths to which we go to exclude irrelevant evidence, the expenditures made to protect defendants from juror prejudice, the energy, study, and work devoted to a particular prosecution, all of these are prodigious. Having gone through that process, admired by us both for its thoroughness and its goals, astonishing to others for its devotion to fairness and reason, it is incomprehensible that at the very end we should tell those who are to make the judgment that they may do so without regard to anything that went before and without guidance as to why they should disregard what went on before, and without the obligation of explaining why they so disregarded everything. Were anyone to suggest that the police had the right, for no reason whatsoever, to arrest one person but let another escape — intentionally—or that a prosecutor, for no reason whatsoever, and without the need to explain, could prosecute one person but intentionally not prosecute another, or that a grand jury could do the same, where there is no perceptible difference in the two cases, we would either demand the indictment of that policeman and that prosecutor or would immediately pronounce such a suggestion as so lacking in any understanding of the purposes of our criminal justice system as to be not worthy of response. But that is precisely the power that is proposed here to be given to a jury. And were the Legislature to pass a law making a particular course of conduct criminal, and, at the end of that statute, provide that regardless of the proof of criminality the jury shall have the power to acquit, that law would be stricken as unconstitutional.
Jury nullification is an unfortunate but unavoidable power. It should not be advertised, and, to the extent constitutionally permissible, it should be limited. Efforts to protect and expand it are inconsistent with the real values of our system of criminal justice.
Certainly all defendants, we assume, would favor an expansion of jury nullification. They are less concerned with the [212]*212inequality that may exist in the- arbitrariness of such verdicts than they are with the possibility that an increase in such arbitrariness may benefit them, for, as presently understood, jury nullification benefits only the accused. The basis for our decision, however, has nothing to do with restricting or expanding the rights of the accused. It is concerned with the system itself, its fairness and its rationality. The Constitution does not require acceptance of any proposal, no matter how bizarre, no matter how unreasonable, no matter how likely to produce unequal justice, just so long as it will result in more acquittals.
Defendant refers us to the language of the United States Supreme Court in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh’g den., 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968), the case holding the Sixth Amendment right to an impartial jury applicable to state criminal prosecutions:
Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.... The deep commitment of the nation to the right of a jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the due process clause of the Fourteenth Amendment, and must therefore be respected by the states.
[Id. at 156, 88 S.Ct. at 1451, 20 L.Ed. 2d at 500 (footnote omitted).]
We agree. The right to trial by jury is intended to protect the citizen from corrupt, overzealous, or arbitrary prosecutors, and from compliant, biased, or eccentric judges; the right to a jury trial, in other words, is his protection against arbitrary law enforcement. It was never designed, however, to protect the defendant from the law, or from the Legislature. It will not do for defendant to recite the acknowledged virtues of jury independence when what is really approved is the dark side of jury nullification.
The difference in this case between the majority and the dissent is narrow. The Court is unanimous in its disapproval of nullification. What separates us are our differing perceptions of the effect of the use of “must.” The dissent believes that it [213]*213somehow improperly coerces jury deliberations, impermissibly interferes with jury independence, and, in any event, that it can be adequately replaced with less coercive language. The majority finds that when a jury is told that under certain circumstances it “must” find defendant innocent while under other circumstances it “may” find defendant guilty, the risk of nullification is enhanced; and further, that the use of “must” properly states the jury’s duty and does not result in the coercion feared by the dissent.
Our review of recent jury charges convinces us that absent some significant tone of voice undisclosed by the record, the numerous variations of charges melt into each other, none of them either coercing the jury or suggesting that it is free to ignore the law. By the time one is through reading these charges, it becomes clear that “should,” “will,” and “must” are probably functionally identical, and the list could go on to include “shall,” “it is your duty,” “the State is entitled,” etc. In that sense we believe that the dissent, even if it prevailed, would not achieve any significant change in our jury system. What is disturbing is that the dissent believes that such a change is necessary. On the contrary, we believe that the last thing a jury needs is a reminder of its ability to let the guilty go free. A trial should be fair to the people, too, not just to the defendant.
We reverse the judgment of the Appellate Division and remand the matter to the trial court for a new trial.