Before Bushell’s Case there was a long history of stacking juries or using writs of attainders in order to ensure that juries returned verdicts the court approved of. As we learned last week, Bushell’s Case set the stage for protecting a jury’s right “to give their verdict according to their convictions.” This week we’ll take a look at how these jury protections made their way across the British Empire—in particular to the U.S.—and explore what the right of jury nullification (or conscientious acquittal or perverse verdict) looks like today.
United States
The practice of jury nullification in the U.S. is brought about by several principles of American jurisprudence—even if nullification itself is not specifically set out in any one place. First, under Article III of the Constitution “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” Second, under Federal Rule of Criminal Procedure 29, the court may only enter a directed verdict for acquittal, and not for a guilty verdict. Third, the Fifth Amendment’s double jeopardy clause does not allow the government to appeal a defendant’s acquittal. Finally, following Bushell’s Case, “members of [] juries will never be punished for their errors.” All of these separate protections come together and allow the practice of jury nullification to be effective in the U.S.
In fact, there is a long history of jury nullification in the U.S. One of the highest profile instances of jury nullification came in the case of Crown v. Zenger. Zenger was the printer of the New-York Weekly Journal, a newspaper that at the time criticized the Governor of New York, William Cosby. Zenger was charged with seditious libel for printing the paper that criticized Cosby and was tried by Cosby supporters, including Chief Justice DeLancey. After Zenger’s original attorneys were disbarred, they recruited Andrew Hamilton (no relation to Alexander Hamilton) to defend their former client. It should be noted that another Cosby supporter, John Chambers, was the interim court-appointed counsel for Zenger, and against expectations, was able to empanel a jury that would not be biased against Zenger. Hamilton, never denied that Zenger printed the articles in question, rather he argued that “truth is a defense against libel.” Chief Justice DeLancey on the other hand was sure that truth could not be a defense, and thus instructed the jury that English “laws in [his] opinion are very clear; they cannot be admitted to justify a libel.” The jury spent less than ten minutes deliberating, and ultimately found Zenger not guilty. This was one of the first instances in America recognizing the freedom of the press. And though the case itself did not become the legal precedent which fully protected the press, it showed the shift in thinking of the early colonists about which freedoms should be protected.
While Zenger represents one of the most well-known instances of jury nullification in Colonial-Era America, it is most certainly not the only example. Throughout the colonies’ early history, juries would shape the law according to the new beliefs they built living away from the Crown. Juries often nullified the Navigation Acts in the colonies, indeed with such frequency that many British Prosecutors gave up trying such cases as conviction was deemed hopeless. However, jury nullification was not only reserved for English laws. After the Revolution, during the Pre-Civil War Era, many juries would acquit individuals being tried for violating the Fugitive Slave Acts. Further, during Prohibition, many juries also nullified liquor control laws—with some commenters suggesting they were nullified nearly 60% of the time. More recently, during the Civil Rights Era there were even instances of all-white juries acquitting white defendants accused of crimes against African-Americans.
Today jury nullification is largely unused, but there are still proponents of jury nullification that argue it is akin to the fourth branch of government. Nullification supporters argue that the practice is the public’s protection against corrupt law enforcement and politicians. Recently, the Colorado Supreme Court dealt with the rising interest of jury nullification in Colorado v. Iannicelli. In the case, defendants Iannicelli and Brandt stood on the steps of the Denver courthouse asking people entering if they were going to the court house for jury duty. If they answered that they were reporting for jury duty, Iannicelli and Brandt would give the possible jurors information packets about jury nullification. Colorado charged Iannicelli and Brandt with jury tampering, but the court dismissed the charges, noting that in order for tampering to have occurred “the statute requires that [their] effort[s] to influence a juror must be directed to a specifically identifiable case.”
Other English Colonies
As noted, the practice of jury nullification is not only found in England and the U.S, but also throughout much of the old British Empire. The practice has been limited in some instances, and changed verdicts in others, but its influence is still felt. We’ll look at interesting happenings of jury nullification in Scotland and Canada, but other former British colonies like Australia have jury nullification as well. However, India interestingly does not deal with jury nullification since India has abolished jury trials.
In Scotland, the effect of jury nullification had a very profound effect, it led to the creation of the three-verdict system that is still in place today. In Scotland, juries can return guilty and non-guilty verdicts, but they also have the option of returning a verdict of not proven. The nullification that led to this strange system came in the case of James Carnegie of Finhaven. Finhaven was accused of killing the Earl of Strathmore, which he undoubtedly did, but he did so accidentally. At the time, the law required that the jury return a verdict of proven if they believed the facts had proven that Finhaven did in fact kill the Earl, or not proven if they felt the facts did not prove the act. The jury, not believing that Finhaven killed the Earl purposefully, instead asserted their ancient right to judge the whole case (as opposed to merely the facts of the case) and thus rendered a not-guilty verdict for Finhaven. Over time, the practice of delivering not-guilty verdicts was re-established. Today, juries most often return not-guilty verdicts when they feel the defendant is innocent, and instead use not proven when they tend to think the defendant is guilty, but that the prosecution didn’t prove the case—even though both verdicts end in acquittal.
Canada has also experienced instances of jury nullification, however the practice is much rarer in the Great White North. Still, the Supreme Court of Canada has dealt with instances of juror nullification and set out some standards. One of the most famous instances of jury nullification in Canada came in R. v. Morgentaler. In the case, Morgentaler was accused of operating a private abortion clinic but was acquitted by multiple juries. The case eventually reached the Supreme Court of Canada and the court invalidated the law, noting in dicta that while juries could disregard laws, if they had the de facto power to do so, and were encouraged to do so by defendants’ counsel, it could lead to confusion and application of the same laws differently to individuals tried by different juries. In 2006, the Court again recognized in R. v. Krieger that juries may refuse to apply the law as stated if it goes against their consciences, noting that “juries are not entitled as a matter of right to refuse to apply the law—but they do have the power to do so when their consciences permit of no other course.” However, in an earlier case from 2001, R. v. Latimer, the Court also noted that it was the role of the trial judge to prevent jury nullification from occurring. The practice also has less finality than nullification in the U.S. because Canadian prosecutors have the ability to appeal acquittals—though only if there was an error of law, not only an unreasonable conviction.
Conclusion
As we’ve seen, jury nullification has an interesting past and an equally interesting present. For the most part, the practice has fallen out of favor, with a few stalwarts still holding that jurors should be informed of their right to nullification in order for it to be utilized more. However, this may have some unintended consequences—a recent study in Scotland found that by removing the not proven verdict currently allowed in Scottish courts (and akin to a recognized jury nullification) would likely push jurors more toward guilty verdicts when the case seems close. Today, more and more cases never even reach the trial stage, but perhaps for those important cases that do, jury nullification will remain an effective tool when utilized correctly.
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