Jury nullification

From colonial days through the middle of the 1800’s in civil cases, and through the late 1800’s in criminal cases, juries were instructed concerning what the law was, but were also instructed that they were free to determine the law differently. However, the practice of giving juries the freedom to determine the law died out in the 1800’s for at least three reasons: a desire for predictability, an increasing diversity of jurors who were unlikely to hold the same views of what the law should be, and the increasing professional role of judges and lawyers as “keepers” of the law.

For well over a hundred years, jurors in every jurisdiction have been instructed concerning what the law is, and are admonished that they must apply it without questioning the law’s wisdom. For example, federal judges routinely tell juries: “I instruct you that the law as given by the court in these and other instructions constitute the only law for your guidance. It is your duty to accept and to follow the law as I give it to you even though you may disagree with the law.” If a jury nonetheless intentionally decides to ignore this instruction, and apply its own concept of what the law should be, then the jury is said to have engaged in “jury nullification.”

It is important to understand that even though a jury never has the right to nullify, it usually has the power to do so. Indeed, the jury has an absolute power to nullify as to a criminal acquittal because the Double Jeopardy Clause prevents a retrial. And due to the secrecy of deliberations, and the ban on most kinds of testimony about what went on in the jury room in challenging a verdict, nullification is unlikely to be discovered and overturned when it results in criminal convictions and in civil verdicts.

Why might a jury nullify? Scholars have suggested several reasons why a jury might nullify in favor of a defendant in a criminal case:

• The jury feels that the criminal statute, while generally fair, is unfair as applied to the particular defendant in the case; for example, if due to mental incapacity the defendant is not sufficiently blameworthy.
   
• The jury feels that the criminal statute is unfair when applied to anyone; for example, some Northern juries in prosecutions in the early 1800’s of abolitionists who refused to return escaped slaves under the Fugitive Slave Act.
   
• The jury is protesting social injustices unrelated to the particular defendant or the particular law; for example, the supposed “Bronx juries” in recent years composed primarily of minorities who reputedly refused to convict minority defendants of low-level offenses to protest the devastating effects of so many members of minority communities being imprisoned.
   
• The jury believes the prosecution has engaged in unscrupulous conduct during the case and should not be rewarded with a conviction even though the defendant is guilty.
   
• The jury has an irrational bias in favor of the particular defendant or an irrational prejudice against the prosecution.
   

A continuing topic for debate is whether juries’ power to nullify should be transformed into a right to nullify. If nullification became a right, then judges would be obligated to inform jurors that they can nullify. To read more about that debate, click here. For a list of sources regarding jury nullification, click here.