Have You Heard About Jury Nullification?

            Maybe it’s because jury trials are a dying breed or maybe because the average American is unconcerned about fulfilling her civic duty by serving on a jury, but whatever the reason, Americans are unfamiliar with the concept of jury nullification. “Jury nullification” is when a jury acquits a criminal defendant contrary to the great weight of evidence proving the defendant’s legal guilt because the jury perceives the law as unjust or the imposing sentence is too harsh. You can think of jury nullification as a type of social justice. But is it wise for juries to practice nullification?

       

History

            Jury nullification is not a modern conception and, in fact, has deep roots in history. Traditionally, the jury was charged with deciding the facts and judging the law. The first notable case recognizing, and praising jury nullification was in 1670 London. A jury acquitted William Penn and William Meade of criminal charges for preaching to a group of Quakers despite overwhelming evidence indicating the men were guilty of the crime charged.

            Jury nullification appeared in the American colonies in 1735 during the case of John Peter Zenger. There, a jury refused to convict Zenger of seditious libel charges for publishing criticisms of the unpopular New York governor. At that time, the truth of the claims was not a defense. However, Zenger’s counsel argued such a defense and persuaded the jury to acquit Zenger.

            Jury nullification glory days were over in 1895 when the United States Supreme Court held that jury nullification is not a right and that federal judges were not obligated to inform juries about the power of nullification. Sparf and Hansen v. United States, 156 U.S. 51 (1895). Since then, federal judges have steadfastly followed this holding.

Proponents of Jury Nullification

            Supports and advocates of jury nullification insist that jury nullification is not only a power but a right. They credit jury nullification as a means to oppose unpopular laws, harsh sentencing, and overreaching prosecutions.

Historically, juries have used nullification in cases charging criminal defendants with violations of the Fugitive Act of 1850 for harboring run away slaves and during the Prohibition era for the sale and consumption of liquor. Presently, jury nullification has surfaced in assisted suicide and death penalty cases.

Since defense lawyers are generally prohibited from arguing a jury nullification defense, organizations such as the Fully Informed Jury Association (“FIJA”) has dedicated its service to educating potential jurors about the power (or as they defend “right”) of jury nullification. For more information about juries generally or jury nullification from FIJA click here.

Recently, Justice Sotomayor of the Supreme Court has endorsed informing the jury about their power to nullify. She said,

            “You know the Second Circuit has an opinion that basically says that juries should never be instructed about jury nullification, and that any instruction that would suggest it, is wrong. And I leaned very closely to the Second Circuit warning for many, many years. As I have grown more in the system and watching it, I’m not so sure that’s right. Think about what juries did during the civil rights movement. If it weren’t for jury nullification, we would have many civil rights individuals who would be convicted felons for things that we think today are protected by the 1^st Amendment. There is a place for jury nullification. Finding the balance of that and the role that a judge should and should not play in advising juries about that is important.”

 – Justice Sotomayor during a discussion of why jury service matters.

For more on Justice Sotomayor’s discussion, click here.

Opponents of Jury Nullification

            Opponents of jury nullification assert that the 1895 Supreme Court holding that jury nullification is not a right and its reasonings are still applicable today. Specifically, opponents worry that informing juries about the power to nullify would lead to significantly more hung juries, jury anarchy, and leads to uncertainty.  Furthermore, opponents argue that a jury of twelve, random individual from one particular community have the competency to decide which national policy is “just” or “unjust.”  And opponents are quick to point out instances when jury nullification protected indefensible behavior such as all white juries acquitting white supremacists for criminal acts against African-Americans during the Reconstruction Era, and also in the acquittal of the white defendants in the death of a young, African-American boy, Emmett Till.

In conclusion, both supporters and critics of jury nullification raise legitimate and interesting points. Though they differ as to the utility of jury nullification, they both share a desire for a fair and just legal system.