Against the Weight of the Evidence: Modern Uses of Jury Nullification

Jury nullification has long been promoted by some as a way for citizens to peacefully protest unjust laws. Recently, a few states have faced the question of whether informing potential jurors about jury nullification counts as jury tampering or whether it is free speech supported by the First Amendment. Back in September, the Colorado Supreme Court overturned the conviction of a man who was found guilty of jury tampering after he distributed pamphlets about jury nullification outside the courthouse. The Michigan Supreme Court is currently deliberating a similar case, after a lower court upheld a man’s conviction for passing out similar pamphlets. These decisions are especially timely in light of our nation's current debate about the utility and fairness of federal and state drug laws.

What is Jury Nullification?

Jury nullification occurs when a panel of jurors vote to deliver a “not guilty” verdict not because they believe the defendant is not guilty, but rather because they believe the law is unjust. The law is said to be "nullified" in these instances because the prosecution cannot retry the case, and the jury cannot be punished for delivering a not guilty verdict. Jurors can engage in jury nullification even if they do not ultimately end up delivering a verdict—one or two jurors refusing to vote in favor of a guilty verdict will cause a hung jury, and while a hung jury does not prevent the government from bringing the case again at a later date, the law is nullified temporarily as to the case at hand. 

This concept can be traced back to 17th century England, where courts recognized the right of the jury to acquit a defendant even when there was overwhelming evidence to the contrary. Even the Founding Fathers recognized this jury right—John Adams once stated that it is a juror's duty to vote his or her conscience, even if it is in "direct opposition to the direction of the court."

Despite its roots in our constitutional history, jury nullification has been and remains a highly controversial practice. For some, jury nullification represents a complete dereliction of a juror's oath to deliver a true verdict based the facts of the case before them. For others, jury nullification is a powerful tool to protest unjust and, in some cases, discriminatory laws. 

Modern Use of Jury Nullification

Although there are some high profile examples of jury nullification in our nation's history (the John Peter Zenger case, for one), it is difficult to say with certainty just how often jurors engage in nullification. It's possible that jurors are completely unaware of the concept altogether; the Supreme Court held over 100 years ago that jurors have no right to be told about nullification before deliberations, a view that the Ninth Circuit recently reiterated. But there have been recent efforts in some states like Tennessee and Oregon to include language about a jury’s right to nullify in standard criminal jury instructions, although these efforts have largely failed. Today, there are organizations like the Fully Informed Jury Association that advocate for jurors' rights to "refuse to enforce unjust law." These organizations generate pamphlets and literature much like those at issue in the Colorado and Michigan cases designed to inform jurors about the option to vote "not guilty" in cases where they believe the law is unjust. 

In light of today's conversation about the fairness and impact of our nation's drug laws, these organizations could play a large part in mobilizing potential jurors to nullify (or partially nullify) such laws. Additionally, if more states attempt to implement legislation that allows the use of jury nullification instructions, it's possible that this increased awareness, paired with the growing opposition to many drug laws, could lead to a diminished desire amongst law enforcement to bring the charges in the first place. This, of course, is the main objective of this movement, and it seems as though we are now in a place in history where this power of the jury could become more and more prevalent.