JURY NULLIFICATION

Jury nullification occurs when the prosecutor convinces a jury beyond a reasonable doubt that the defendant committed the crime charged, but the jury nevertheless decides to acquit. Also called an "acquittal against the evidence," nullification represents a conclusion by the jurors that the literal application of the penal law would be inappropriate on the facts presented, and they thus effectively "nullify" the criminal law by refusing to convict.

There are many reasons a jury might nullify, but cases where the power is exercised generally fall into one of two groups. The first is when the jury decides that the law itself is unfair or unpopular, regardless of what the defendant has done. Juries have acquitted against the evidence when defendants were charged with minor vice crimes like gambling, liquor law violations, or other offenses that are sufficiently common or underenforced that a conviction of one offender seems unfair. Crimes that carry an especially harsh sentence are also candidates for nullification. The Supreme Court has recognized, for example, that when crimes carried a mandatory death penalty, some juries preferred to acquit a factually guilty defendant rather than impose capital punishment. More recent examples include a refusal to convict a defendant accused of simple possession of drugs, where the prescribed punishment is severe and mandatory.

The second, and more common, group of cases is when the law itself is uncontroversial, but there is something about the defendant that makes an acquittal seem appropriately merciful. Cases where the defendant's motives seemed good, or where the defendant has already suffered great harm can result in nullification—a mercy killing, or a parent's negligent killing of his or her own child, for example. Other instances include cases in which the police officers or prosecutors seem to be overreaching in trying to convict a particular defendant, or in which the victim brought much of the harm on himself, as when an unarmed thief is shot by the defendant while fleeing the scene of a crime. In each of these cases, the jury is using its power to acquit to make a statement about the prosecutor's judgment in bringing this defendant to trial.

Jury nullification has a long but murky history. The practice has its roots in English common law, where the rule gradually emerged that juries had a power to acquit that was beyond the judge's power to overrule. One English case often identified with the nullification power is the 1670 trial of william penn and William Mead, who were charged with disturbing the peace and unlawful assembly for holding a public meeting in defiance of the Anglican Church. Although the evidence of guilt was clear, the jury refused to convict. When the jurors refused the court's request to reconsider, the judge fined and jailed them for contempt. The foreman of the jury, named Bushell, filed a habeas corpus petition, and the court eventually ordered that the jurors be released. Although bushell's case (1670) is sometimes erroneously said to have approved the right to acquit against the evidence—the English court never made such a determination—it did help establish the important principle that jurors cannot be coerced into reaching a particular verdict.

The jury's power to nullify found a welcome home in the American colonies, where the power was sometimes used as a form of political protest. The best known colonial example was zenger ' scase, in which the jury acquitted John Peter Zenger, accused of seditious libel for publishing articles critical of the Royal Governor. His acquittal in the face of strong evidence of guilt helped solidify the view that juries generally, and the power to nullify in particular, were a critical protection against government tyranny.

Despite its deep historical roots, there is little evidence that the jury's power to nullify was critical to those who drafted or ratified the Constitution and the bill of rights. Perhaps this is because the power was assumed to exist—jurors were frequently instructed by the trial judge that they had the duty to "find the law" as well as the facts, an instruction that allowed juries to decide whether the criminal law should be applied to the case before them. But as judges became better trained and as the criminal law became more complex, courts increasingly came to instruct juries on the precise law that they were obligated to apply to the facts before them.

As the relationship between judges and juries changed, so did the nature of the nullification debate. There was never any doubt that juries had the raw power to acquit against the evidence, and so the controversial question became whether juries must be told of the power. When the Supreme Court finally addressed the issue in Sparf & Hansen v. United States (1895), it implicitly rejected the idea that the constitutional right to a trial by jury included the right to a jury instructed that it might acquit against the evidence. Although the Court's opinion did not use the phrase "jury nullification," it left little doubt that the ability to nullify was merely a power incident to the jury system, not a right that could be enforced by a defendant.

Sparf & Hansen resolved the issue, at least in the federal courts. Although the question of instructing the jury was revived during the mid-twentieth century, often in criminal cases filed against those involved in political protests over civil rights and the vietnam war, federal courts again rejected the view of nullification proponents. State courts are in accord: although a few state constitutions still provide that juries have the power to find the law, it does not appear that any state routinely permits argument to the jury on the nullification power.

Still, jury nullification continues to occur, although it is hard to say how often. There are enough examples of it in high-profile cases to create the impression that juries frequently acquit against the evidence, and in some jurisdictions for some crimes (usually nonviolent ones) there is evidence to support this view. Most observers believe, however, that juries in general rarely exercise the power, and when they do, they limit its use to cases that are close on the evidence. As a leading jury study put it, "the jury does not often consciously and explicitly yield to sentiment in the teeth of the law. Rather it yields to sentiment in the apparent process of resolving doubts as to the evidence."

Nevertheless, the mere possibility that a jury might nullify has a significant impact on the criminal law. One example is the legal system's tolerance of inconsistent verdicts. Sometimes two defendants are tried together, and the evidence against them is identical, yet the jury convicts one and acquits the other. Logic suggests that if the jury had a reasonable doubt against one defendant, it must have had a reasonable doubt about the other. In federal courts, however, the conviction may stand despite the inconsistency; the Supreme Court has said that because the jury might have decided to nullify when it acquitted the second defendant, the first defendant's conviction will not be disturbed if there was enough evidence to sustain that conviction. This inconsistency will be tolerated even if there is no evidence that the jury intended to nullify with respect to the defendant it set free.

A second example of the influence of jury nullification is the legal system's distrust of the "special" verdict—a verdict that requires the jury to answer specific questions that explain its decision. Although there are many reasons why special verdicts are disfavored, one reason is that forcing a jury to be too specific in its decision might interfere with its power to nullify. As one court put it, in United States v. Desmond (1982), "Underlying this aversion [to special verdicts] is the feeling that denial of a general verdict might deprive the defendant of the right to a jury's finding based more on external circumstances than the strict letter of the law."

The exercise of jury nullification evokes strong reactions, both for and against. Advocates of nullification argue that without this power, the jury would not be able to fulfill its role as the conscience of the community, dispensing individual justice in appropriate cases. Proponents note that laws prohibiting drug use, for example, may be fair in almost every case, but the legislature may not have anticipated the exceptional one, such as the use of marijuana for medical purposes. If the prosecutor decides to charge a patient with a crime for using marijuana, the jury is free to step in and prevent an injustice from occurring. If such nullifications are repeated, juries can also perform an important function by signaling the legislature that certain laws should be reassessed because they are no longer in line with community values.

Some proponents have argued that juries should take an even more aggressive role in monitoring and shaping the laws. Advocacy groups lobby for "fully informed jury" laws, under which jurors would be told by the judges that they are the ultimate decisionmakers in all criminal cases about both the law and the facts. Some scholars have echoed similar themes, arguing that jury nullification should be encouraged both in and outside the courtroom to help bring about desired social change.

There are also those who criticize the exercise of jury nullification. They note, for example, that when a jury nullifies, it often does so on the basis of incomplete, even misleading information. Jurors who believe that a young defendant should not have his future ruined by one drunk driving conviction, for example, would surely want to know before nullifying that the defendant had been in trouble with the law before; yet, that evidence often will not be admissible at trial. Because the jury has the power, but not a right, to acquit against the evidence, relevant information that the jury would like to hear on this issue will never be presented.

One remedy for the problem of imperfect information would be to change current practice and allow lawyers to argue to the jury for nullification. Critics object to such a candid course of action, however, arguing that if juries were told of the power to nullify, they would nullify much more often, thereby undermining the rule of law. Critical federal judges have agreed that explicit allowance of nullification would give "every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable."

A related concern of critics is that although the power to nullify can be used for wise and merciful ends, it can also reflect a jury's improper motives. When juries refused to convict white defendants who had violated the civil rights of minority citizens trying to register to vote, this was an exercise in jury nullification. Likewise when defendants in sexual assault cases are treated leniently because the victim was allegedly "asking for it," jurors may well be expressing the sentiments of the community, but most would not defend these actions as just or merciful.

Finally, those who oppose instructing the jury on the power to nullify note that many controversial political questions are played out in the courtroom, and that the resolution of those issues should not be left to randomly selected juries. Questions about abortion are raised in cases where defendants are charged with trespassing at family planning clinics, just as questions about the legitimacy of gun control may be raised in a case charging illegal possession of assault rifles by hunters. Critics contend that social issues like these should be resolved in the legislature, and that once they are, a proper respect for the rule of law means that juries should be required to apply the law as written.

The strength of the jury's power to nullify is also its weakness. Juries have the discretion to acquit any defendant for any reason, a power that can be used for both proper and improper purposes. Jurors are quite properly charged with making an important, perhaps life-and-death, decision about whether a defendant is guilty of the crime charged. Whether the jury should be more specifically charged with their power to consider larger issues that go beyond the law and the facts presented—a procedure that is today rejected by almost all courts—is at the heart of the jury nullification debate.

Andrew D. Leipold
(2000)

Bibliography

Abramson, Jeffrey 1994 We the Jury. New York: Basic Books.

Kalven, Harry, Jr. and Zeisel, Hans 1966 The American Jury. Boston, Mass.: Little, Brown.

King, Nancy 1998 Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom. University of Chicago Law Review 65:433–500.

Leipold, Andrew 1996 Rethinking Jury Nullification. Virginia Law Review 82:253–324.

Weinstein, Jack B. 1993 Considering Jury "Nullification": When May and Should a Jury Reject the Law to do Justice? American Criminal Law Review 30:239–254.