Jury nullification in the United States

Jury nullification in the United States has its origins in colonial British America. Similar to British law, in the United States jury nullification occurs when a jury reaches a verdict contrary to the weight of evidence, sometimes due to a disagreement with the relevant law. The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return.

Nullification in practice

Jury nullification appeared in the pre-Civil War era when northern juries sometimes refused to convict for violations of the Fugitive Slave Act because jurors felt the laws to be unjust. In 1851, 24 people were indicted for helping a fugitive escape from a jail in Syracuse, New York. The first four trials of the group resulted in three acquittals and one conviction, and the government dropped the remaining charges. Likewise, after a crowd broke into a Boston courtroom and rescued a slave, the grand jury indicted three of those involved, but after an acquittal and several hung juries, the government dropped the charges.

During the 19th and 20th centuries, especially in the civil rights movement era, all-white juries acquitted white defendants accused of murdering blacks, however, the problem according to some scholars was: "...not in jury nullification, but in jury selection. The jury was not representative of the community..." During Prohibition, juries often nullified alcohol control laws, possibly as often as 60% of the time due to disagreements with the justice of the law. This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition.

Kalven and Zeisel's study of the American jury found that juries acquitted when judges would have convicted in only nineteen percent of cases, and of these, only twenty-one percent of the acquittals were attributable to jury nullification. Jury nullification sometimes takes the form of a jury convicting the defendant of lesser charges than what the prosecutor sought.

In the 21st century, many discussions of jury nullification center around drug laws that some consider unjust either in principle or because they are seen to discriminate against certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification, and a recent rise in hung juries (from an average of 5% to nearly 20% in recent years) is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves (though other reasons such as the CSI effect may also be involved).

In criminal cases, jury nullification arguments sometimes focus on the precise language of the jury instruction on the burden of proof. Many jury instructions on the issue of the burden of proof invite nullification arguments. According to these instructions juries must find the defendant not guilty if the case has not been proven beyond a reasonable doubt. Conversely the jury should find the defendant guilty if the case has been proven beyond a reasonable doubt. The permissive language "should" arguably allows juries to consider nullification arguments. It is also possible to receive a specific jury instruction on nullification, though this is based on the discretion of the judge and is very rare.

During the Vietnam War era, many protestors, including Benjamin Spock, sought jury nullification. Spock was convicted of conspiracy to counsel, aid, and abet registrants to avoid the draft, after the judge instructed the jury to apply the law as he laid it down. However, the U.S. Court of Appeals for the 1st Circuit overturned the conviction because the judge had committed prejudicial error in putting to the jury ten special yes-or-no questions. Eight defendants from Oakland, California were tried in 1969 for conspiracy to disrupt a draft induction center, and the jury acquitted after being told by the judge that it could acquit if it felt the defendants' actions were protected by the First Amendment guarantees of freedom of speech and assembly. Likewise, in a case involving ten Seattle protestors accused of blocking a munitions train carrying bombs destined for Vietnam, the jury acquitted after the judge allowed the defendants to talk about their motives and permitted the defense to ask the jurors to invoke their consciences and object to the war by acquitting.

The Camden 28 were able to gain an acquittal despite the overwhelming evidence of their guilt. In at least one case, the judge allowed the jury to hear testimony about the Pentagon Papers and the nature of the Vietnam War. In one Vietnam-era case, the defense compared the defendants' actions in breaking into a government office to the Boston Tea Party, saying that no one "would say that breaking into a ship shouldn't be criminal, shouldn't be a crime," but that it was justified under the circumstances. There was also a case in which a jury voted 9-3 to acquit peace activists despite their admission that they poured blood in a military recruiting center.

Several cases that were speculated to be instances of jury nullification included the prosecution of Washington D.C.’s former mayor, Marion Barry; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King; the prosecution of two men charged with beating Reginald Denny in the resulting riots; the trial of the surviving Branch Davidian members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O.J. Simpson trial. In the days preceding Jack Kevorkian's trial for assisted suicide in Michigan, Kevorkian's lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger's statements had already been extensively reported in the media.

In a 1998 article, Vanderbilt University Law Professor Nancy J. King wrote that "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes or other mandatory sentence, and in assisted suicide, drug possession, and firearms cases."

Court rulings

In recent years, judges seem to be less likely to favor jury nullification. While unable to take away the power of nullification, they have done much to prevent its use.

Many of the first landmark decisions since the adoption of the U.S. Constitution confirmed several rights of the defense in a criminal case: a requirement that the bench not make a decision on motions until all legal arguments had been made by both sides; the right to be free of making those arguments before the jury had been seated; and the right to make those legal arguments to the jury.

Judge William Cranch decided several cases allowing juries to hear legal arguments

In both cases, in the DC Circuit, the same judge, William Cranch, rendered the opinions, creating precedents that have never been overturned.

The first major decision that departed from this line was Games v. Stiles ex dem Dunn which held that the bench could override the verdict of the jury on a point of law.

The 1895 decision in Sparf v. U.S., written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.

In 1972, in United States v. Dougherty,, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify. However, in Dougherty the then-chief judge David L. Bazelon authored a dissenting in part opinion, arguing that the jury should be instructed about their power to render the verdict according to their conscience if the law was unjust. He wrote that refusal to allow the jury to be instructed constitutes a "deliberate lack of candor". It has been argued that the denial of jury nullification requests negates much of the point of self-representation.

In 1988, in U.S. v. Krzyske,, the jury asked the judge about jury nullification. The judge responded "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error.

In 1997, in U.S. v. Thomas, the U.S. Court of Appeals for the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b). The Second Circuit also stated, however, that the court must not remove a juror for an alleged refusal to follow the law as instructed unless the record leaves no doubt that the juror was in fact engaged in deliberate misconduct--that he was not simply unpersuaded by the Government's case against the defendants.

We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

In 2001, a California Supreme Court ruling on a case involving statutory rape led to a new jury instruction that requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law. People v. Williams, 25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209. However, the ruling could not overturn the practice of jury nullification itself because of double jeopardy: a defendant who has been acquitted of a charge cannot be charged a second time with it, even if the court later learns jury nullification played a role in the verdict.

The Supreme Court of the United States has not recently confronted the issue directly.

Circa 1996, Laura Kriho was the sole juror holdout in a drug possession trial, one eventually declared a mistrial. She had violated the rules by learning from the Internet that the defendant could face a four- to twelve-year prison term if convicted. The trial court found "that Kriho had intended to obstruct the judicial process and that her actions had prevented the seating of a fair and impartial jury." It has been argued that improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to a fair trial.

Advocacy groups and notable proponents

Ron Paul, a U.S. Representative and presidential candidate in 1988, 2008 and 2012, is a notable supporter of jury nullification and has written extensively on the historic importance of juries as finders of fact and law.

Some advocacy groups and websites argue that private parties in cases where the government is the opponent have the right to have juries be instructed that they have the right and duty to render a verdict contrary to legal positions they believe to be unjust or unconstitutional. These and other organizations contact citizens directly and lobby for legal reforms regarding instructions given to jurors.

Clay Conrad, a jury scholar and attorney, argues that there is nothing "wrong" with jury nullification; nullification is part and parcel of what a jury is all about. Conrad argues that the nullification power has sometimes been abused, as has all power. However, the abuses have been exaggerated to discredit the nullification idea itself.

The late Chief Justice of the Washington State Supreme Court William C. Goodloe was an advocate of jury nullification and suggested that the following instruction be given by judges to all juries in criminal cases:

“

You are instructed that this being a criminal case you are the exclusive judges of the evidence, the credibility of the witnesses and the weight to be given to their testimony, and you have a right also to determine the law in the case. The court does not intend to express any opinion concerning the weight of the evidence, but it is the duty of the court to advise you as to the law, and it is your duty to consider the instructions of the court; yet in your decision upon the merits of the case you have a right to determine for yourselves the law as well as the facts by which your verdict shall be governed.

”

The United States Libertarian Party's platform states, "We assert the common-law right of juries to judge not only the facts but also the justice of the law."

Some see jury nullification as one of the so-called four boxes of liberty.

Criminal prosecution

In the fall of 2010 Julian P. Heicklen of Teaneck, New Jersey, a jury nullification activist who had made a regular practice of handing out information about jury nullification outside courthouses, was charged in federal court in Manhattan with jury tampering, a misdemeanor. He has previously been cited several times for distributing fliers without a permit outside the Federal Courthouse in Manhattan. Heicklen, a retired chemistry professor, was arraigned February 25, 2011 before a magistrate judge. The maximum penalty is 6 months incarceration. The defendant is not entitled to a jury trial. The statute Heickeln is charged under, USC Title 18 Section 1504, in pertinent part:

Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.

Opponents

James Wilson, founding father and one of the leading legal theorists of the day, was one of the only sources from the era that addressed jury nullification. He defended the jury's right to render a general verdict (to determine the law as well as the fact). However, in rendering that verdict, he asserted that juries must “determine those questions, as judges must determine them, according to law.” He noted that the law was “governed by precedents, and customs, and authorities, and maxims,” that are “alike obligatory upon jurors as upon judges, in deciding questions of law.” In essence, Wilson was arguing that juries must not disregard the law because laws are the result of due process by legal representatives of the people.

A notable opponent of jury nullification is former judge and unsuccessful Supreme Court nominee Robert Bork. In an essay he wrote jury nullification is a "pernicious practice".

Some have argued that it is not sufficient to instruct jurors that they may judge the law if legal arguments are not made to them, that such incomplete information may indeed do more harm than good, and that we must return to the standard of due process represented by the Stettinius and Fenwick cases. Some alleged costs of jury nullification include inconsistent verdicts and discouraging of guilty pleas.

There is some question as to whether jury nullification should be disallowed in cases where there is an identifiable crime victim. Jury nullification has more support among legal academics than judges.

Jury nullification has also been criticized for having resulted in the acquittal of whites who victimized blacks in the Deep South. David L. Bazelon argued, "One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. That repellent practice cannot be directly arrested without jeopardizing important constitutional protections-the double jeopardy bar and the jury's power of nullification. But the revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation. That same movement spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive." However, Julian Heicklen disputed this: "The problem with the all-white juries that refused to convict whites that committed crimes against blacks was not in jury nullification, but in jury selection. The jury was not representative of the community and would not provide a fair and impartial trial."

Leipold points out that to argue that nullification prevents unfair prosecutions is to argue that it is unfair to convict a defendant when a representative legislature has passed a statute making a certain behavior a crime, the evidence shows beyond a reasonable doubt that the defendant engaged in that behavior, and the accused has no defense to the charge.