Jury nullification in the United States
Encyclopedia
Jury nullification in the United States has its origins in colonial British America. Similar to British law, in the United States
jury nullification
occurs when a jury reaches a verdict contrary to the weight of evidence, sometimes due to a disagreement with the relevant law. The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return.
era when northern juries sometimes refused to convict for violations of the Fugitive Slave Act because jurors felt the laws to be unjust. In 1851, 24 people were indicted for helping a fugitive escape
from a jail in Syracuse, New York
. The first four trials of the group resulted in three acquittals and one conviction, and the government dropped the remaining charges. Likewise, after a crowd broke into a Boston courtroom and rescued a slave
, the grand jury indicted three of those involved, but after an acquittal and several hung juries, the government dropped the charges.
During the 19th and 20th centuries, especially in the civil rights movement
era, all-white juries acquitted white defendants accused of murdering blacks, however, the problem according to some scholars was: "...not in jury nullification, but in jury selection. The jury was not representative of the community..." During Prohibition
, juries often nullified alcohol control laws, possibly as often as 60% of the time due to disagreements with the justice of the law. This resistance is considered to have contributed to the adoption of the Twenty-first amendment
repealing the Eighteenth amendment
which established Prohibition
.
Kalven and Zeisel's study of the American jury found that juries acquitted when judges would have convicted in only nineteen percent of cases, and of these, only twenty-one percent of the acquittals were attributable to jury nullification. Jury nullification sometimes takes the form of a jury convicting the defendant of lesser charges than what the prosecutor sought.
In the 21st century, many discussions of jury nullification center around drug laws that some consider unjust either in principle or because they are seen to discriminate against certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification, and a recent rise in hung juries
(from an average of 5% to nearly 20% in recent years) is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves (though other reasons such as the CSI effect
may also be involved).
In criminal cases, jury nullification arguments sometimes focus on the precise language of the jury instruction on the burden of proof. Many jury instructions on the issue of the burden of proof invite nullification arguments. According to these instructions juries must find the defendant not guilty if the case has not been proven beyond a reasonable doubt. Conversely the jury should find the defendant guilty if the case has been proven beyond a reasonable doubt. The permissive language "should" arguably allows juries to consider nullification arguments. It is also possible to receive a specific jury instruction on nullification, though this is based on the discretion of the judge and is very rare.
During the Vietnam War
era, many protestors, including Benjamin Spock
, sought jury nullification. Spock was convicted of conspiracy to counsel, aid, and abet registrants to avoid the draft, after the judge instructed the jury to apply the law as he laid it down. However, the U.S. Court of Appeals for the 1st Circuit overturned the conviction because the judge had committed prejudicial error in putting to the jury ten special yes-or-no questions. Eight defendants from Oakland, California
were tried in 1969 for conspiracy to disrupt a draft induction center, and the jury acquitted after being told by the judge that it could acquit if it felt the defendants' actions were protected by the First Amendment guarantees of freedom of speech and assembly. Likewise, in a case involving ten Seattle protestors accused of blocking a munitions train carrying bombs destined for Vietnam, the jury acquitted after the judge allowed the defendants to talk about their motives and permitted the defense to ask the jurors to invoke their consciences and object to the war by acquitting.
The Camden 28
were able to gain an acquittal despite the overwhelming evidence of their guilt. In at least one case, the judge allowed the jury to hear testimony about the Pentagon Papers
and the nature of the Vietnam War. In one Vietnam-era case, the defense compared the defendants' actions in breaking into a government office to the Boston Tea Party
, saying that no one "would say that breaking into a ship shouldn't be criminal, shouldn't be a crime," but that it was justified under the circumstances. There was also a case in which a jury voted 9-3 to acquit peace activists despite their admission that they poured blood in a military recruiting center.
Several cases that were speculated to be instances of jury nullification included the prosecution of Washington D.C.’s former mayor, Marion Barry
; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King
; the prosecution of two men charged with beating Reginald Denny
in the resulting riots; the trial of the surviving Branch Davidian
members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O.J. Simpson trial. In the days preceding Jack Kevorkian
's trial for assisted suicide
in Michigan, Kevorkian's lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger's statements had already been extensively reported in the media.
In a 1998 article, Vanderbilt University
Law Professor Nancy J. King wrote that "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes
or other mandatory sentence, and in assisted suicide
, drug possession, and firearms cases."
Many of the first landmark decisions since the adoption of the U.S. Constitution confirmed several rights of the defense in a criminal case: a requirement that the bench not make a decision on motions until all legal arguments had been made by both sides; the right to be free of making those arguments before the jury
had been seated; and the right to make those legal arguments to the jury.
In both cases, in the DC Circuit, the same judge, William Cranch
, rendered the opinions, creating precedents that have never been overturned.
The first major decision that departed from this line was Games v. Stiles ex dem Dunn which held that the bench could override the verdict of the jury on a point of law.
The 1895 decision in Sparf v. U.S., written by Justice John Marshall Harlan
held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States
judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire
if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.
A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.
Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:
In 1972, in United States v. Dougherty
,, the United States Court of Appeals for the District of Columbia Circuit
issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify. However, in Dougherty the then-chief judge David L. Bazelon
authored a dissenting in part opinion, arguing that the jury should be instructed about their power to render the verdict according to their conscience if the law was unjust. He wrote that refusal to allow the jury to be instructed constitutes a "deliberate lack of candor". It has been argued that the denial of jury nullification requests negates much of the point of self-representation.
In 1988, in U.S. v. Krzyske,, the jury asked the judge about jury nullification. The judge responded "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error.
In 1997, in U.S. v. Thomas, the U.S. Court of Appeals for the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b). The Second Circuit also stated, however, that the court must not remove a juror for an alleged refusal to follow the law as instructed unless the record leaves no doubt that the juror was in fact engaged in deliberate misconduct--that he was not simply unpersuaded by the Government's case against the defendants.
In 2001, a California Supreme Court ruling on a case involving statutory rape
led to a new jury instruction that requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law. People v. Williams, 25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209. However, the ruling could not overturn the practice of jury nullification itself because of double jeopardy: a defendant who has been acquitted of a charge cannot be charged a second time with it, even if the court later learns jury nullification played a role in the verdict.
The Supreme Court of the United States has not recently confronted the issue directly.
Circa 1996, Laura Kriho was the sole juror holdout in a drug possession trial, one eventually declared a mistrial. She had violated the rules by learning from the Internet that the defendant could face a four- to twelve-year prison term if convicted. The trial court found "that Kriho had intended to obstruct the judicial process and that her actions had prevented the seating of a fair and impartial jury." It has been argued that improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to a fair trial.
, a U.S. Representative and 2008 Presidential candidate
is a notable supporter of jury nullification and has written extensively on the historic importance of juries as finders of fact and law.
Some advocacy groups and websites argue that private parties in cases where the government is the opponent have the right to have juries be instructed that they have the right and duty to render a verdict contrary to legal positions they believe to be unjust or unconstitutional. These and other organizations contact citizens directly and lobby for legal reforms regarding instructions given to jurors.
Clay Conrad, a jury scholar and attorney, argues that there is nothing "wrong" with jury nullification; nullification is part and parcel of what a jury is all about. Conrad argues that the nullification power has sometimes been abused, as has all power. However, the abuses have been exaggerated to discredit the nullification idea itself.
The late Chief Justice of the Washington State Supreme Court William C. Goodloe was an advocate of jury nullification and suggested that the following instruction be given by judges to all juries in criminal cases:
The United States Libertarian Party's platform states, "We assert the common-law right of juries to judge not only the facts but also the justice of the law."
, a jury nullification activist who had made a regular practice of handing out information about jury nullification outside courthouses, was charged in federal court in Manhattan with jury tampering
, a misdemeanor
. He has previously been cited several times for distributing fliers without a permit outside the Federal Courthouse in Manhattan. Heicklen, a retired chemistry professor, was arraigned February 25, 2011 before a magistrate judge
. The maximum penalty is 6 months incarceration. The defendant is not entitled to a jury trial. The statute Heickeln is charged under, USC Title 18 Section 1504, in pertinent part:
, founding father and one of the leading legal theorists of the day, was one of the only sources from the era that addressed jury nullification. He defended the jury's right to render a general verdict (to determine the law as well as the fact). However, in rendering that verdict, he asserted that juries must “determine those questions, as judges must determine them, according to law.” He noted that the law was “governed by precedents, and customs, and authorities, and maxims,” that are “alike obligatory upon jurors as upon judges, in deciding questions of law.” In essence, Wilson was arguing that juries must not disregard the law because laws are the result of due process by legal representatives of the people.
A notable opponent of jury nullification is former judge and unsuccessful Supreme Court nominee Robert Bork
. In an essay he wrote jury nullification is a "pernicious practice".
Some have argued that it is not sufficient to instruct jurors that they may judge the law if legal arguments are not made to them, that such incomplete information may indeed do more harm than good, and that we must return to the standard of due process represented by the Stettinius and Fenwick cases. Some alleged costs of jury nullification include inconsistent verdicts and discouraging of guilty pleas.
There is some question as to whether jury nullification should be disallowed in cases where there is an identifiable crime victim. While jury nullification has more support among legal academics than judges, most legal scholars strongly oppose the jury's exercise of its nullification power.
Jury nullification has also been criticized for having resulted in the acquittal of whites who victimized blacks in the Deep South
. David L. Bazelon
argued, "One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. That repellent practice cannot be directly arrested without jeopardizing important constitutional protections-the double jeopardy bar and the jury's power of nullification. But the revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation. That same movement spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive." However, Julian Heicklen disputed this: "The problem with the all-white juries that refused to convict whites that committed crimes against blacks was not in jury nullification, but in jury selection. The jury was not representative of the community and would not provide a fair and impartial trial."
Leipold points out that to argue that nullification prevents unfair prosecutions is to argue that it is unfair to convict a defendant when a representative legislature has passed a statute making a certain behavior a crime, the evidence shows beyond a reasonable doubt that the defendant engaged in that behavior, and the accused has no defense to the charge.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
jury nullification
Jury nullification
Jury nullification occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to...
occurs when a jury reaches a verdict contrary to the weight of evidence, sometimes due to a disagreement with the relevant law. The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return.
Nullification in practice
Jury nullification appeared in the pre-Civil WarAmerican Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
era when northern juries sometimes refused to convict for violations of the Fugitive Slave Act because jurors felt the laws to be unjust. In 1851, 24 people were indicted for helping a fugitive escape
Jerry Rescue
The Jerry Rescue, on October 1, 1851, involved the daring, public rescue of a fugitive slave who had been arrested the same day, in Syracuse, New York, during the anti-slavery Liberty Party's state convention...
from a jail in Syracuse, New York
Syracuse, New York
Syracuse is a city in and the county seat of Onondaga County, New York, United States, the largest U.S. city with the name "Syracuse", and the fifth most populous city in the state. At the 2010 census, the city population was 145,170, and its metropolitan area had a population of 742,603...
. The first four trials of the group resulted in three acquittals and one conviction, and the government dropped the remaining charges. Likewise, after a crowd broke into a Boston courtroom and rescued a slave
Burns Fugitive Slave Case
Burns Fugitive Slave Case was one of three famous fugitive slave cases arising in Boston, Massachusetts, after the enactment of the Fugitive Slave Act of 1850. Part of the Vigilance Committee planned to rescue Anthony Burns, an escaped slave, from an upper room of the courthouse...
, the grand jury indicted three of those involved, but after an acquittal and several hung juries, the government dropped the charges.
During the 19th and 20th centuries, especially in the civil rights movement
Civil rights movement
The civil rights movement was a worldwide political movement for equality before the law occurring between approximately 1950 and 1980. In many situations it took the form of campaigns of civil resistance aimed at achieving change by nonviolent forms of resistance. In some situations it was...
era, all-white juries acquitted white defendants accused of murdering blacks, however, the problem according to some scholars was: "...not in jury nullification, but in jury selection. The jury was not representative of the community..." During Prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...
, juries often nullified alcohol control laws, possibly as often as 60% of the time due to disagreements with the justice of the law. This resistance is considered to have contributed to the adoption of the Twenty-first amendment
Twenty-first Amendment to the United States Constitution
The Twenty-first Amendment to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide Prohibition...
repealing the Eighteenth amendment
Eighteenth Amendment to the United States Constitution
The Eighteenth Amendment of the United States Constitution established Prohibition in the United States. The separate Volstead Act set down methods of enforcing the Eighteenth Amendment, and defined which "intoxicating liquors" were prohibited, and which were excluded from prohibition...
which established Prohibition
Prohibition in the United States
Prohibition in the United States was a national ban on the sale, manufacture, and transportation of alcohol, in place from 1920 to 1933. The ban was mandated by the Eighteenth Amendment to the Constitution, and the Volstead Act set down the rules for enforcing the ban, as well as defining which...
.
Kalven and Zeisel's study of the American jury found that juries acquitted when judges would have convicted in only nineteen percent of cases, and of these, only twenty-one percent of the acquittals were attributable to jury nullification. Jury nullification sometimes takes the form of a jury convicting the defendant of lesser charges than what the prosecutor sought.
In the 21st century, many discussions of jury nullification center around drug laws that some consider unjust either in principle or because they are seen to discriminate against certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification, and a recent rise in hung juries
Hung jury
A hung jury or deadlocked jury is a jury that cannot, by the required voting threshold, agree upon a verdict after an extended period of deliberation and is unable to change its votes due to severe differences of opinion.- England and Wales :...
(from an average of 5% to nearly 20% in recent years) is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves (though other reasons such as the CSI effect
CSI Effect
The CSI effect, also known as the CSI syndrome and the CSI infection, is any of several ways in which the exaggerated portrayal of forensic science on crime television shows such as CSI: Crime Scene Investigation influences public perception...
may also be involved).
In criminal cases, jury nullification arguments sometimes focus on the precise language of the jury instruction on the burden of proof. Many jury instructions on the issue of the burden of proof invite nullification arguments. According to these instructions juries must find the defendant not guilty if the case has not been proven beyond a reasonable doubt. Conversely the jury should find the defendant guilty if the case has been proven beyond a reasonable doubt. The permissive language "should" arguably allows juries to consider nullification arguments. It is also possible to receive a specific jury instruction on nullification, though this is based on the discretion of the judge and is very rare.
During the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
era, many protestors, including Benjamin Spock
Benjamin Spock
Benjamin McLane Spock was an American pediatrician whose book Baby and Child Care, published in 1946, is one of the biggest best-sellers of all time. Its message to mothers is that "you know more than you think you do."Spock was the first pediatrician to study psychoanalysis to try to understand...
, sought jury nullification. Spock was convicted of conspiracy to counsel, aid, and abet registrants to avoid the draft, after the judge instructed the jury to apply the law as he laid it down. However, the U.S. Court of Appeals for the 1st Circuit overturned the conviction because the judge had committed prejudicial error in putting to the jury ten special yes-or-no questions. Eight defendants from Oakland, California
Oakland, California
Oakland is a major West Coast port city on San Francisco Bay in the U.S. state of California. It is the eighth-largest city in the state with a 2010 population of 390,724...
were tried in 1969 for conspiracy to disrupt a draft induction center, and the jury acquitted after being told by the judge that it could acquit if it felt the defendants' actions were protected by the First Amendment guarantees of freedom of speech and assembly. Likewise, in a case involving ten Seattle protestors accused of blocking a munitions train carrying bombs destined for Vietnam, the jury acquitted after the judge allowed the defendants to talk about their motives and permitted the defense to ask the jurors to invoke their consciences and object to the war by acquitting.
The Camden 28
The Camden 28
The Camden 28 were a group of "Catholic left" anti-Vietnam War activists who in 1971 planned and executed a raid on a Camden, New Jersey draft board...
were able to gain an acquittal despite the overwhelming evidence of their guilt. In at least one case, the judge allowed the jury to hear testimony about the Pentagon Papers
Pentagon Papers
The Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is a United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967...
and the nature of the Vietnam War. In one Vietnam-era case, the defense compared the defendants' actions in breaking into a government office to the Boston Tea Party
Boston Tea Party
The Boston Tea Party was a direct action by colonists in Boston, a town in the British colony of Massachusetts, against the British government and the monopolistic East India Company that controlled all the tea imported into the colonies...
, saying that no one "would say that breaking into a ship shouldn't be criminal, shouldn't be a crime," but that it was justified under the circumstances. There was also a case in which a jury voted 9-3 to acquit peace activists despite their admission that they poured blood in a military recruiting center.
Several cases that were speculated to be instances of jury nullification included the prosecution of Washington D.C.’s former mayor, Marion Barry
Marion Barry
Marion Shepilov Barry, Jr. is an American Democratic politician who is currently serving as a member of the Council of the District of Columbia, representing DC's Ward 8. Barry served as the second elected mayor of the District of Columbia from 1979 to 1991, and again as the fourth mayor from 1995...
; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King
Rodney King
Rodney Glen King is an American best known for his involvement in a police brutality case involving the Los Angeles Police Department on March 3, 1991...
; the prosecution of two men charged with beating Reginald Denny
Reginald Denny
Reginald Denny may refer to:*Reginald Denny *Reginald Oliver Denny, survivor of attack during 1992 Los Angeles riots...
in the resulting riots; the trial of the surviving Branch Davidian
Branch Davidian
The Branch Davidians are a Protestant sect that originated in 1955 from a schism in the Davidian Seventh Day Adventists , a reform movement that began within the Seventh-day Adventist Church around 1930...
members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O.J. Simpson trial. In the days preceding Jack Kevorkian
Jack Kevorkian
Jacob "Jack" Kevorkian , commonly known as "Dr. Death", was an American pathologist, euthanasia activist, painter, composer and instrumentalist. He is best known for publicly championing a terminal patient's right to die via physician-assisted suicide; he said he assisted at least 130 patients to...
's trial for assisted suicide
Assisted suicide
Assisted suicide is the common term for actions by which an individual helps another person voluntarily bring about his or her own death. "Assistance" may mean providing one with the means to end one's own life, but may extend to other actions. It differs to euthanasia where another person ends...
in Michigan, Kevorkian's lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger's statements had already been extensively reported in the media.
In a 1998 article, Vanderbilt University
Vanderbilt University Law School
Vanderbilt University Law School is a graduate school of Vanderbilt University. Established in 1874, it is one of the oldest law schools in the southern United States. Vanderbilt Law has consistently ranked among the top 20 law schools in the nation, and is currently ranked 16th in the 2012...
Law Professor Nancy J. King wrote that "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
or other mandatory sentence, and in assisted suicide
Assisted suicide
Assisted suicide is the common term for actions by which an individual helps another person voluntarily bring about his or her own death. "Assistance" may mean providing one with the means to end one's own life, but may extend to other actions. It differs to euthanasia where another person ends...
, drug possession, and firearms cases."
Court rulings
In recent years, judges seem to be less likely to favor jury nullification. While unable to take away the power of nullification, they have done much to prevent its use.Many of the first landmark decisions since the adoption of the U.S. Constitution confirmed several rights of the defense in a criminal case: a requirement that the bench not make a decision on motions until all legal arguments had been made by both sides; the right to be free of making those arguments before the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
had been seated; and the right to make those legal arguments to the jury.
William Cranch
William Cranch was an American judge and the second reporter of decisions of the Supreme Court of the United States.-Early life:Born in Weymouth, Massachusetts, he was a nephew of Abigail Adams...
, rendered the opinions, creating precedents that have never been overturned.
The first major decision that departed from this line was Games v. Stiles ex dem Dunn which held that the bench could override the verdict of the jury on a point of law.
The 1895 decision in Sparf v. U.S., written by Justice John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...
held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire
Voir dire
Voir dire is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth , i.e., to say what is true, what is objectively accurate or subjectively honest, or both....
if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.
A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.
We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.
Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:
…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.
In 1972, in United States v. Dougherty
United States v. Dougherty
United States v. Dougherty was a 1972 decision by the United States Court of Appeals for the District of Columbia in which the court ruled that members of the D.C...
,, the United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify. However, in Dougherty the then-chief judge David L. Bazelon
David L. Bazelon
David Lionel Bazelon was a judge on the United States Court of Appeals for the District of Columbia Circuit.-Early life, education, and career:...
authored a dissenting in part opinion, arguing that the jury should be instructed about their power to render the verdict according to their conscience if the law was unjust. He wrote that refusal to allow the jury to be instructed constitutes a "deliberate lack of candor". It has been argued that the denial of jury nullification requests negates much of the point of self-representation.
In 1988, in U.S. v. Krzyske,, the jury asked the judge about jury nullification. The judge responded "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error.
In 1997, in U.S. v. Thomas, the U.S. Court of Appeals for the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b). The Second Circuit also stated, however, that the court must not remove a juror for an alleged refusal to follow the law as instructed unless the record leaves no doubt that the juror was in fact engaged in deliberate misconduct--that he was not simply unpersuaded by the Government's case against the defendants.
We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.
In 2001, a California Supreme Court ruling on a case involving statutory rape
Statutory rape
The phrase statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior...
led to a new jury instruction that requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law. People v. Williams, 25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209. However, the ruling could not overturn the practice of jury nullification itself because of double jeopardy: a defendant who has been acquitted of a charge cannot be charged a second time with it, even if the court later learns jury nullification played a role in the verdict.
The Supreme Court of the United States has not recently confronted the issue directly.
Circa 1996, Laura Kriho was the sole juror holdout in a drug possession trial, one eventually declared a mistrial. She had violated the rules by learning from the Internet that the defendant could face a four- to twelve-year prison term if convicted. The trial court found "that Kriho had intended to obstruct the judicial process and that her actions had prevented the seating of a fair and impartial jury." It has been argued that improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to a fair trial.
Advocacy groups and notable proponents
Ron PaulRon Paul
Ronald Ernest "Ron" Paul is an American physician, author and United States Congressman who is seeking to be the Republican Party candidate in the 2012 presidential election. Paul represents Texas's 14th congressional district, which covers an area south and southwest of Houston that includes...
, a U.S. Representative and 2008 Presidential candidate
Ron Paul presidential campaign, 2008
Ron Paul was a Republican Party primary candidate in the 2008 United States presidential election.Initial opinion polls during the first three quarters of 2007 showed Ron Paul consistently receiving support from 3% or less of those polled...
is a notable supporter of jury nullification and has written extensively on the historic importance of juries as finders of fact and law.
Some advocacy groups and websites argue that private parties in cases where the government is the opponent have the right to have juries be instructed that they have the right and duty to render a verdict contrary to legal positions they believe to be unjust or unconstitutional. These and other organizations contact citizens directly and lobby for legal reforms regarding instructions given to jurors.
Clay Conrad, a jury scholar and attorney, argues that there is nothing "wrong" with jury nullification; nullification is part and parcel of what a jury is all about. Conrad argues that the nullification power has sometimes been abused, as has all power. However, the abuses have been exaggerated to discredit the nullification idea itself.
The late Chief Justice of the Washington State Supreme Court William C. Goodloe was an advocate of jury nullification and suggested that the following instruction be given by judges to all juries in criminal cases:
The United States Libertarian Party's platform states, "We assert the common-law right of juries to judge not only the facts but also the justice of the law."
Criminal prosecution
In the fall of 2010 Julian P. Heicklen of Teaneck, New JerseyTeaneck, New Jersey
Teaneck is a township in Bergen County, New Jersey, and a suburb in the New York metropolitan area. As of the 2010 United States Census, the township population was 39,776, making it the second-most populous among the 70 municipalities in Bergen County....
, a jury nullification activist who had made a regular practice of handing out information about jury nullification outside courthouses, was charged in federal court in Manhattan with jury tampering
Jury tampering
Jury tampering is the crime of unduly attempting to influence the composition and/or decisions of a jury during the course of a trial.The means by which this crime could be perpetrated can include attempting to discredit potential jurors to ensure they will not be selected for duty. Once selected,...
, a misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
. He has previously been cited several times for distributing fliers without a permit outside the Federal Courthouse in Manhattan. Heicklen, a retired chemistry professor, was arraigned February 25, 2011 before a magistrate judge
United States magistrate judge
In the United States federal courts, magistrate judges are appointed to assist United States district court judges in the performance of their duties...
. The maximum penalty is 6 months incarceration. The defendant is not entitled to a jury trial. The statute Heickeln is charged under, USC Title 18 Section 1504, in pertinent part:
Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.
Opponents
James WilsonJames Wilson
James Wilson was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was elected twice to the Continental Congress, and was a major force in drafting the United States Constitution...
, founding father and one of the leading legal theorists of the day, was one of the only sources from the era that addressed jury nullification. He defended the jury's right to render a general verdict (to determine the law as well as the fact). However, in rendering that verdict, he asserted that juries must “determine those questions, as judges must determine them, according to law.” He noted that the law was “governed by precedents, and customs, and authorities, and maxims,” that are “alike obligatory upon jurors as upon judges, in deciding questions of law.” In essence, Wilson was arguing that juries must not disregard the law because laws are the result of due process by legal representatives of the people.
A notable opponent of jury nullification is former judge and unsuccessful Supreme Court nominee Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
. In an essay he wrote jury nullification is a "pernicious practice".
Some have argued that it is not sufficient to instruct jurors that they may judge the law if legal arguments are not made to them, that such incomplete information may indeed do more harm than good, and that we must return to the standard of due process represented by the Stettinius and Fenwick cases. Some alleged costs of jury nullification include inconsistent verdicts and discouraging of guilty pleas.
There is some question as to whether jury nullification should be disallowed in cases where there is an identifiable crime victim. While jury nullification has more support among legal academics than judges, most legal scholars strongly oppose the jury's exercise of its nullification power.
Jury nullification has also been criticized for having resulted in the acquittal of whites who victimized blacks in the Deep South
Deep South
The Deep South is a descriptive category of the cultural and geographic subregions in the American South. Historically, it is differentiated from the "Upper South" as being the states which were most dependent on plantation type agriculture during the pre-Civil War period...
. David L. Bazelon
David L. Bazelon
David Lionel Bazelon was a judge on the United States Court of Appeals for the District of Columbia Circuit.-Early life, education, and career:...
argued, "One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. That repellent practice cannot be directly arrested without jeopardizing important constitutional protections-the double jeopardy bar and the jury's power of nullification. But the revulsion and sense of shame fostered by that practice fueled the civil rights movement, which in turn made possible the enactment of major civil rights legislation. That same movement spurred on the revitalization of the equal protection clause and, in particular, the recognition of the right to be tried before a jury selected without bias. The lessons we learned from these abuses helped to create a climate in which such abuses could not so easily thrive." However, Julian Heicklen disputed this: "The problem with the all-white juries that refused to convict whites that committed crimes against blacks was not in jury nullification, but in jury selection. The jury was not representative of the community and would not provide a fair and impartial trial."
Leipold points out that to argue that nullification prevents unfair prosecutions is to argue that it is unfair to convict a defendant when a representative legislature has passed a statute making a certain behavior a crime, the evidence shows beyond a reasonable doubt that the defendant engaged in that behavior, and the accused has no defense to the charge.