jury nullification - real concept or just abstract?

I have been reading lots of articles from Google on jury nullification. i.e. the “right” of juries to disregard the law when they think a conviction would be unjust. Most of these are from libertarian sites, but after trawling through them I am confused over a few points.

Is this a recognised right? E.g is a juror who disregards the law doing something wrong in the eyes of the law? Has this ever been tested in the supreme court
Can defense lawyers tell the jury of this “right”?

Jury nullification is not a right in the sense that it is something officially sanctioned by law. It is, however, something the jury has the power to do; since, in a criminal case, a jury only returns a general verdict (e.g., “guilty” or “not guilty” without specific findings on individual issues), and because jury deliberations are kept secret, a juror can come to a conclusion on whatever basis he wishes. He violates his oath to follow the law if he bases his conclusion on something other than that with which he is charged by the court, but there isn’t any sanction for his doing so.

So the brief answer is “a juror has the power to nullify, but not a legally sanctioned right to do so.”

Jury nulllification is a really bad idea, for reasons better left to GD. I suggest you do a search on that forum for a fuller discussion of the issues. I leave you with this one thought: in the 1950s Deep South, the murderers of blacks and civil rights activists frequently went free because the jury elected to ignore the law. Jury nullification ain’t just about letting nice pot smokers go free.

true, but a few founding fathers may not have survived an english noose without it.

However thanks for the info. Off to GD for me

I would disagree that the juror is ignoring his oath or that he doesn’t have a legal right to nullify. However, it is pretty clear in the case law that the defense is not permitted to exhort the jury to nullify or even to tell them about it. (Here in D.C. there’s a guy who passes out nullification flyers to people entering the courthouse so that if any of them are jurors they’ll know about the option.)

I also disagree that nullification is a “bad idea.” It certainly can be (as Dewey noted), but nullification also led to the easing of the “Bloody Code” in England in the late 1700’s, which sentenced even petty offenders to death, and today it seems like nullification might play an important part in preserving justice for arab-americans caught up in the excesses of the USA Patriot Act and other post-Sept. 11th legislation. A further duscussion is not appropriate in this forum, but since Dewey noted the bad side, I figure a mention of the good side was required.


There is a (common law) belief among certain folks that a jury has a duty to do two things:

  1. Judge the law.
  2. Judge the defendant

#1 is performed first. Once it is agreed that the law is constitutional, fair, moral, just, etc. the jury moves on to #2.

Sounds good to me. Of course, it’s a double-edged sword as others have pointed out…

In the early days of the USA, a law was passed that made it a crime to criticize the government (Yes, really. This happened while the Federalists were in power.) Of course, juries refused to convict anyone under this law, so it was effectively nullified.

Let’s note that the juror’s oath involves the duty to judge fairly according to the law – not “the statute.” A juror who is convinced that the statute in question is unconstitutional, inequitably applied, or otherwise not such that it is in the interests of justice to convict the defendant under it, is acting according to his oath – the man is not guilty of the crime of which he is charged according to the law – the overarching concept – even though he may be technically guilty of committing that which the statute under which he is charged identifies as penalizable.

scm1001, I think I can answer one of your questions. In 1972, the US Court of Appeals for the DC Circuit decided the case of US v. Dougherty. The case arose after the “D.C. Nine” broke into the offices of the Dow Chemical Company and vandalized certain property in an attempt to publicize their opposition to the Vietnam War. At trial, they attempted to turn trial into a political fray, arguing that they should be acquitted because their actions were morally justified. The 7 of “DC Nine” on trial were each convicted of two counts of malicious destruction. They appealed on the basis of the trial court’s refusal to instruct the jury of its right to acquit without regard to the law and the evidence. Basically, they were asserting that they have a constitutional right (via the Due Process Clause) to instruct jurors of the right to nullify.

The DC Circuit affirmed the convictions, holding that the trial court’s refusal to instruct the jury of its right to nullify wasn’t a denial of the defendants’ due process rights. The appellate court acknowledged that juries do have a right to nullify, and that nullification is a good thing: the power of jury nullification is a “necessary counter to case-hardened judges and arbitrary prosecutors,” and the exercise of that power may, in at least some instances, “enhance the overall normative effect of the rule of law.” While nullification leads to a “slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical convention,” its explicit avowal threatens to dissolve rule of law into the rule of man. Basically, the DC Circuit believed that since society cannot function if everyone can disregard with impunity any law that deviates from their sense of morality, and since explicitly telling jurors about their power of nullification will increase its exercise, telling jurors about nullification leads to anarchy.

The DC Circuit wanted to minimize the use of jury nullification, and it felt that denying a putative right to defendants to tell juries of their right to nullify would be a good way to do so. The court wrote that not telling jurors about nullification has several advantages: (1) it confines nullification to the exceptional case — not just when there’s a good reason, but only when there’s a damn good reason to deviate from legal rule; (2) it relieves jurors from awesome responsibility of determining from scratch what should be the rules of liability and criminality by which society shall be governed; and (3) it gives jurors shield from personal responsibility for unpopular verdicts: “I was just doing as the law instructed.”

There was a dissent. The dissent’s argument was that (1) since the court has admitted that the use of nullification is, in its proper place, a good thing, and (2) we’re not going to tell juries of their power to nullify, then (3) the court must rely upon informal channels on informing jury of nullification — which is too arbitrary.

I think the majority could have bolstered its reasoning. The tendency of nullification is that it gets jurors into speculating about the defendant’s character rather than the case at hand. In a pluralistic society, this means that it will become racialized, etc. We don’t want to encourage the balkanization of the justice system into some sort of status-based machine that produces results based upon inputs of questionable relevance. The proof of that is that ex ante, behind the veil of ignorance, the parties would choose a judge who evaluates cases solely by what happened in the case and irrespective of other qualities of the parties. In other words, much more nullification is “bad” than “good” – even if we don’t trot out To Kill a Mockingbird and the murders of Emmett Till and Medgar Evers.

So, scm1001, I hope I’ve answered at least some of your questions without transforming this into a GD.

Well done, sir.

Judges can ignore the wording of the law and “make” new law with their decisions.

The jury is part of the judicial system and can do the same.

thanks Mr Hand,
though I do tend to agree with the dissenter. Basically you are saying juries are not “adult” enough to determine what makes good laws. This may be true, but why have juries in the first place? I don’t think juries would actually misuse their power most of the time, if anything often they will tend to be harsher than most judges on rapists, muggers etc.

No, they can’t.

Judges may interpret the law where it is ambiguous, but where the law is plain on its face, judges are bound by it.

  • Rick

I practice jury nullification, and John Jay agrees with me(I think have some pretty good company on this issue, as many other founding fathers also agree with me).

It is a long standing american practice, and totally legal. It is what was expected of us as jury members when our government was set up. According to the Chief Justice of the Supreme court: " The jury has the right to judge both the law as well as the fact in controversy." U.S. Supreme Court Chief Justice John Jay, 1794.

It is not a violation of your oath to practice jury nullification, if you believe that the law a defendent is charged with is unconstitutional. The oath is to obey the law, and the Constitution is the highest law of the land.

When I am on a jury, whether or not I vote not guilty, is how I “judge both the law as well as the fact”.

While jury nullification in genera does belong in GD, the above is factually incorrect information being posted in GQ. As I understand the trials in question, they could more accurately be described as ‘prosecutor and judge nullification’, since both the prosecutor and judge set out to make sure there was no conviction.

Horseshit. Go back and look at those cases. It isn’t like he prosecution didn’t present all the evidence to the jury, and it isn’t like the judge failed to properly charge the jury. Those southern juries had all the facts and law they needed to convict. They refused to do so. They ignored the law in favor of their own moral code: that a white man should not be sent to jail for doing violence to black people. See, e.g., Byron De La Beckwith’s trials.

That isn’t to say that the prosecution and judges were angels – on the rare occasions when a jury did convict, a judge would often suspend the sentence in favor of probation. But jury nullification was a common facet of old Deep South trials where white-on-black violence was at issue.

That right’s reserved for the SCOTUS! :smiley:

(who hopes that nobody, including Bricker, will take him seriously)

It’s not quite as clear cut as Susanann would have you believe. As one commentator who has reviewed the writings and workings of the judges around that time stated: [W]hile the Framers clearly considered essential the right to a jury trial in criminal cases, historical accounts of their intent regarding the extent of the criminal jury’s power are inconclusive.

Wrong. Patently and horribly wrong. As the Second Circuit Court stated in U.S. V. Thomas:

I am loathe to allow 12 people, with no legal training, and without full information about the facts and law to determine what is and what isn’t Constitutional. Giving that unreviewable power to 12 jurors ignores the rule of law.

I hope to God you are never on a jury. And, incidentally, do you tell the judge and lawyers that? Or do you hide it, and lie to them when you are asked if you can determine the case on the facts only?

Finally, just read Sparf and Hansen v United States. In the course of rejecting the claim of a convicted murderer that his constitutional rights were violated when his jury was instructed that no evidence supported the lesser offense of manslaughter, the Court canvassed the authority for and against the jury’s “right to take upon themselves the determination of both law and fact” and came down solidly against the whole business.

No, it is you that is wrong.

What the Second Circuit Court may have said in 1996, does not in any way change what U.S. Supreme Court Chief Justice John Jay said in 1794.

I believe John Jay knew far more about what was legal and Constitutional than what those guys on the Second Circuit Court, Sparf and Hansen v United States, or anyone else today, may dream up and try to rewrite or change what was intended.

I have been serving on juries for decades, and I always follow the law as John Jay instructed. A jury is another check and balance to keep innocent people from getting convicted and from injust or unconstitutional laws.

It only takes one of us to keep a person from unjsutly going to prison.

I also read that many cases involving prohibition during the 1920’s-1930’s were turned down by juries who refused to convict(via jury nullification) - does anyone have any info on that?

“Jurors should acquit, even against the judge’s instruction… if exercising their judgement with discretion and honesty they have a clear conviction the charge of the court is wrong.” — Alexander Hamilton, 1804

"Until the middle of the 1800s federal and state judges often instructed juries they had the right to disregard the court’s view of the law. (Barkan, Steven, Jury Nullification in Political Trials, citing 52 Harvard Law Review, 582-616) "
Do you really think the jurors in the trials of William Penn, Peter Zenger, and O.J. simpson thought they were innocent, and came to a verdict soley based on the law and the facts presented?

Jury nullification works. Being on a jury is honorable and patriotic. Being on a jury, gives a citizen the most power of anyone: judges, legislators, prosectors, policemen, governors, etc. to ensure freedom and to guard against unjust or unpopular laws.

I’m going to try to keep this factual, in lines with a GQ rather than GD topic. Perhaps a bit of history is in order…

Jury nullification is a venerable doctrine. In fact, the English legal system and the American legal system can each point to a landmark case establishing the principle

In 1670, William Penn’s Quaker proselytizing led to his prosecution in London on charges of unlawful assembly. The judge essentially directed the jury to find Penn guilty. Penn, on the other hand, argued that the jury should protect freedom of religion by going “behind” the law and acquitting despite the instructions. After the jury acquitted, the judge fined the jurors for ignoring his instructions. When one juror, Edward Bushell, refused to pay the fine, he was prosecuted. Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670). The Court of Common Pleas held for Bushell and established that a juror could never be punished for a verdict. This case became authority for the proposition that, even if a jury should ignore its instructions and acquit the defendant, there can be no legal sanction against any member of the jury.

The American counterpart is the libel trial of John Peter Zenger in New York in 1735. Zenger’s attorney, Andrew Hamilton, urged the jury to ignore the judge’s instructions and to acquit Zenger by finding that the common law allowed truth as a defense to seditious libel. The jury obliged. This is cited as the first famous American jury nullification case.

Yet jury nullification in America was not originally a celebration of the jury’s power to flout the law. Rather, the doctrine went hand-in-glove with the common understanding that juries traditionally had the power to decide both questions of fact and law. There was strong evidence of this at both the state and federal level through the beginning of the twentieth century. Jeffrey Abramson’s We, The Jury cites a 1794 case in which John Jay instructed a civil jury that it had the right to decide both issues of fact and law. Jeffrey Abramson, We the Jury: The Jury System and the Ideal of Democracy 38-45 (1994) (citing Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794) (Jay, C.J.)). It also cites an 1817 criminal case in which John Marshall gave a similar instruction to a criminal jury. In fact, it was not until 1895 that the United States Supreme Court finally held that a federal jury should decide only facts and not law. The Court in Sparf and Hansen v. United States, 156 U.S. 51, held that a federal jury could not become “a law unto themselves,” but were bound to follow the law as given by the trial judge. Yet even today the state constitutions of both Maryland and Indiana provide that a criminal jury has the right to determine both law and facts. See Ind. Const. art. I, 19; Md. Const. (Decl. of Rights) art. XXIII.

Throughout the nineteenth century, then, jury nullification in America could be explained as the jury’s exercise of its prerogative to find both the facts and law in each case. Under this theory, juries before the Sparf and Hanson decision were not “nullifying” any law; on the contrary, their decisions actually proclaimed the law. The rise of the “law/fact” dichotomy limiting the power of American juries in the twentieth century, however, has necessitated a change in the jurisprudential basis for the rule. Now courts tend to view nullification as, in the words of the Seventh Circuit, “just a power, not also a right.” United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988). Thus, a defendant has no right to tell the jury about the doctrine of nullification. See, e.g., United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).

Yet if a defendant has no right to inform an individual jury of its right to nullify, what about informing citizens - potential jurors - on a broader scale? The Fully Informed Jury Association was founded in 1989 with the goal of protecting and publicizing the right of juries to nullify. Even if a jury cannot be told of nullification inside a courtroom, the Association contends, there is nothing to prevent citizens from reading about it in newspaper advertisements.

Professor Paul Butler has brought this debate into the scholarly arena with a controversial article in the Yale Law Journal. See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995). Citing the huge number of African-Americans imprisoned because of drug convictions, Butler urges African-American jurors to re-think their legal responsibilities. He contends that in cases involving African-American defendants being tried for non-violent, malum prohibitum, “victimless” crimes, an African-American juror should begin deliberations with a presumption in favor of jury nullification. The goal would be to destroy the status quo and to substitute non-criminal ways of addressing antisocial conduct.

Professor Andrew Leipold views jury nullification in a very different light. In an article in the Virginia Law Review, he contends that the doctrine exerts more influence over the criminal justice system than one might expect. See Andrew D. Leipold, Rethinking Jury Nullification, 82 Va. L. Rev. 253 (1996). He argues that jury nullification imposes costs on the system even when it is not exercised because of procedural rules which exist to allow for its possible use by a jury. He avers, for example, that the possibile use of jury nullification is the actual reason for our criminal procedure rules against special verdicts, judgments as a matter of law, and appeals by the prosecution. Additionally, he has published a response to Professor Butler’s jury nullification proposal in which he argues against any program of race-based jury nullification. See Andrew D. Leipold, The Dangers of Race-Based Jury Nullification, 44 UCLA L. Rev. 109, 122-23, n.53 (1996).