Jury nullification

Jury nullification is a jury's refusal to render a verdict according to the law, as instructed by the court, regardless of the weight of evidence presented. Instead, a jury bases its verdict on other grounds. Although a jury's refusal only relates to the particular case before them, juries are reluctant to pass a verdict contrary to law and therefore jury nullification often has far reaching implications signalling as it does an unwillingness by ordinary people to accept the law:

"I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution."
(Thomas Jefferson, Author of the Declaration of Independence and third U. S. President)

Historical examples include the revolutionary use by Americans who refused to convict under British law, the perceived injustice of a law in general, the perceived injustice of how the law applies in a particular case, the race of a party or accuser, or the jury’s own prejudices.

Jury nullification is a de facto power of the jury, and is not ordinarily described as a right. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition on retrying criminal defendants after an acquittal (see related topic Double jeopardy).

Jury nullification is the source of much debate. Some maintain that it is an important safeguard of last resort against wrongful imprisonment and government tyranny. Others view it as an abuse of the right to a trial by jury that undermines the law and violates the oath sworn to by jurors. There are fears that nullification could be used to permit violence against women or unpopular minorities. Some argue that jury nullification could be used to nullify important defendants' rights, such as the Fifth Amendment right not to testify or the right of self-defense. (While supporters argue that jury nullification can be used only to acquit and not to convict because a judge must set aside a conviction that is clearly at odds with the law and the facts, the fact that jury verdicts are treated with great deference in United States courts means that the safeguards are not absolute and a jury that dislikes a defendant has the ability to convict an innocent defendant through nullification.)

Nevertheless, few doubt the ability of a jury to nullify the law. Today, there are several issues raised by jury nullification.

First, whether juries can or should be instructed or informed of their power to nullify.
Second, whether a judge may remove jurors "for cause" when they refuse to apply the law as instructed.
Third, whether a judge may punish a juror for exercising their power of jury nullification.

Common Law Precedent

The early history of juries supports the recognition of the de facto power of nullification. By the 12th century, common law courts began using juries for more than administrative duties. Juries were composed primarily of "laymen" from the local community. They provided a somewhat efficient means of dispute resolution with the benefit of supplying legitimacy.

Largely, the earliest juries returned verdicts in accordance with the judge or the crown. This was achieved either by "packing the jury" or by "writ of attaint". Juries were packed by hand-selecting or by bribing the jury so as to return the desired verdict. In cases of treason or sedition, this was frequently the case. In addition, the writ of attaint allowed a judge to retry the case in front of a second jury when the judge believed the first jury returned a "false verdict". If the second jury returned a different verdict, that verdict was imposed and the first jury was imprisoned or fined.

This history, however, is marked by a number of notable exceptions. In 1554, a jury acquitted Sir Nicholas Throckmorton, but was severely punished by the court. Almost a century later, in 1649, a jury likewise acquitted Sir John Lilburne for his part in inciting a rebellion against the Cromwell regime. The theoretician and politician Eduard Bernstein wrote of John Lilburne's trial:

"His contention that the constitution of the Court was contrary to the fundamental laws of the country was unheeded, and his claim that the jury was legally entitled to judge not only as to matters of fact but also as to the application of the law itself, as the Judges represented only 'Norman intruders', whom the jury might here ignore in reaching a verdict, was described by an enraged judge as 'damnable, blasphemous heresy.' This view was not shared by the jury, which, after three days’ hearing, acquitted Lilburne – who had defended himself as skilfully as any lawyer could have done – to the great horror of the Judges and the chagrin of the majority of the Council of State. The Judges were so astonished at the verdict of the jury that they had to repeat their question before they would believe their ears, but the public which crowded the judgment hall, on the announcement of the verdict, broke out into cheers so loud and long as, according to the unanimous testimony of contemporary reporters, had never before been heard in the Guildhall. The cheering and waving of caps continued for over half an hour, while the Judges sat, turning white and red in turns, and spread thence to the masses in London and the suburbs. At night bonfires were lighted, and even during the following days the event was the occasion of joyful demonstrations."

By the late 17th century, the court's ability to punish juries was removed in Bushnell's case involving a juror on the case against William Penn.

In 1670, William Penn was arrested for illegally preaching a Quaker sermon. Despite the fact that the judge demanded a guilty verdict and that preaching the sermon was illegal, the jury in that case acquitted Penn and was subsequently imprisoned, fined, and kept for three days without food or water as a result. Four jurors refused to pay the fine, and one, Edward Bushnell, obtained a writ of habeas corpus. Chief Justice Vaughn, sitting on the highest court in England, discharged the writ, released them, and called the power to punish a jury "absurd".

In 1681, a grand jury refused to indict the Earl of Shaftesbury. Then in 1688, a jury acquitted the Archbishop of Canterbury and six other Anglican bishops of seditious libel.

Juries continued, even in non-criminal cases, to act in defiance of the crown. In 1763 and in 1765, juries awarded £4,000 and £300 to John Wilkes and John Entwick, respectively, in separate suits for trespass against the crown's messengers. In both cases, messengers were sent by Lord Halifax to seize allegedly libelous papers.

In Scotland Jury Nullification had a profound effect bringing in (or as others believed reviving) the verdict of "not guilty". It was in 1728 that one Carnegie of Finhaven accidently killed the Scottish Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of "proven" or "not proven" depending on whether they believed the the facts proved the defendant had killed the Earl. However if the jury brought in a "proven" they would in effect cause this innocent man to die. To avert this injustice, the jury decided to assert what it believed to be their "ancient right" to judge the whole case and not just the facts and brought in the verdict of "not guilty" which remains in Scotland to this day. Over time however, juries have tended to favour the "not guilty" verdict over the "not proven" and with this the interpretation has changed. Now the "Not guilty" verdict has become the normal verdict when a jury is convinced of innocence and the "Not proven" verdict is only used when the jury is not certain of innocence or guilt.

Nullification in the United States

John Peter Zenger, a printer in the English colony of New York, was tried for seditious libel in 1734. The jury acquitted Zenger despite the judge's instructions; this is perhaps the most famous early instance of jury nullification in the colonies that became the United States.

The use of the jury to act as a protection of last resort was espoused by many influential people surrounding the framing of the U.S. Constitution. For example, John Adams said of jurors: "It is not only his right but also his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

First Chief Justice of the US John Jay wrote: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision...you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy".

It was over time that judicial and legal opinion slowly changed to consider jury nullification only a power and not a right of juries, as courts wanted stricter enforcement of laws that juries nullified.

Nullification in Practice

Nullification has a mixed history in the United States. Jury nullification appeared in the pre-Civil War era when juries occasionally refused to convict for violations of the Fugitive Slave Act. However, during the Civil Rights era, all-white juries were known to refuse to convict white defendants for the murder of African-Americans. [1] During Prohibition, juries often nullified alcohol control laws [2], possibly as often as 60% of the time [3].

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 African-Americans. A jury nullification advocacy group estimates that 3-4% of all jury trials involve nullification [4], and a recent rise in hung juries (from an average of 5% to nearly 20% in recent years) is considered additional evidence that juries have begun to consider the validity or fairness of the laws themselves [5].

Court Rulings

In recent years, courts seem to like jury nullification less and less. While unable to take away the power of nullification, they have done much to prevent its use.

The 1895 decision in Sparf v. U.S. held that a trial judge has no responsibility to inform the jury of the right to nullify laws. This decision, often cited, has led to a common practice in United States courtrooms in which juries are instructed to find guilt or innocence according to the letter of the law. Jurors are likely to be struck from the panel during voir dire if they reveal awareness of the concept of jury nullification.

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 of passion, the jury has the power to acquit, and the courts must abide by that decision." U.S. vs Moylan, 417 F 2d 1002, 1006 (1969).

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. Id.

In 1988, in US 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, and the judge's answer was upheld on appeal.

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 [6]. 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.

Although the Supreme Court has not directly confronted the issue recently, dicta in several opinions by Justice Scalia seems to imply a strong belief in the importance of the jury, in which the potential for nullification might be thought implicit; juries, Scalia has argued, are "the spinal column of American democracy," Neder v. United States, "function as circuitbreaker[s] in the State’s machinery of justice," Blakely v. Washington, and while trial by jury "has never been efficient ... it has always been free," Apprendi v. New Jersey.

Advocacy groups

Some advocacy groups and websites such as the:

Fully Informed Jury Association
The Jury Rights Project [7]
The Jury Education Committee [8]

believe that jurors have the right to nullify laws they believe to be unjust. These and other organizations contact citizens directly and lobby for changes in the law regarding the instructions given to jurors.

External links