Jury Nullification

Jury nullification, or, as it is sometimes known, "jury nullification of the law," is defined in Black's Law Dictionary as the de facto power a jury in a criminal case possesses to acquit a defendant regardless of the strength of the evidence against him or her.

The practice has been going on since the early days of the republic, with nullifying jurors being regarded alternately as heroes and anarchists. Type in "jury nullification" on your computer, and your Internet search results will be virtually infinite, with law professors and organizations like "Fully Informed Jury Association" providing their respective views.

This series of articles will begin with an historical look at the jury in operation over the past 200-some years; the second part will examine pertinent case law and various courts' opinions on the issue; finally, the third section will present some of the techniques groups are using to encourage jury nullification and Ohio judges' response to these methods.

Part One

"If the dope peddlers of America think the acquittal of John DeLorean in August 1984 means the legal system has taken a kindly attitude toward drug trafficking, they just don't understand the tradition of American and English juries. ...

Some point to the DeLorean verdict as an abuse of jury power. . . . Legalists argue that it is not the jury's job to reprimand the government. Fortunately, however, juries have been doing exactly that for centuries."[1]

More recently, jury nullification has played a role in the highly-visible O.J. Simpson murder trial, in drug cases against Washington, D. C. Mayor Marion Barry, and in the assisted suicide cases against Dr. Jack Kevorkian. In each of these examples, jurors acquitted the defendant in disregard of what many viewed as obviously incriminating evidence.[2]

What one Ohio judge has called "the most courageous story of jury independence"[3] was the 1670 case against William Mead and William Penn for preaching Quakerism on the streets of London. The court ordered the jury to find Penn guilty. The jury, however, found that the meeting had taken placer, but refused to find that the meeting was unlawful.[4] The jury were ordered four times to return with a different verdict. They refused and were locked up without food and water for days, as well as being badgered by bailiffs and threatened with torture by the judge. When they finally returned with yet another "not guilty" vote, they were fined and jailed alongside the defendants. Eventually, a higher court freed the jurors.[5]

"Following the verdict the judge expressed regret that the jurors had followed their own judgment and opinion rather than the good advice given by the court. But, thank God, both American and English jurors have maintained that independence and continued to follow their own sense of justice."[6]

Legal scholars have pointed to the Salem witch trials in the Colonial period as an example of the problem of unchecked judicial power. Neither party had attorneys, and the judge controlled the production and presentation of evidence with no challenge from counsel. The judges' goal was to produce evidence that would support a guilty verdict.[7]

Distrust of judges was due in part to the fact that the judiciary was appointed by the British monarchy.  The loss of the right to trial by jury was, in fact, one of the grievances that led to the Revolution.  Juries were viewed as an important check to state power, and, in the early days of this country, juries were given the power to decide both issues of fact and of law. Legal disputes were seen as within the basic understanding of the normal people who served on juries. Thus, fear of judicial tyranny as well as faith in the ability of lay jurors placed juries in an unprecedented level of power during the period of the New Republic.[8]

As the country developed, citizens, particularly those with business interests, expected the law to be more predictable and certain. Leaving both matters of law and fact to the jury compromised this certainty, and the balance of power between judge and jury began to shift.  By the 19th century, judges were using more "gatekeeping" powers to control fact-finding and production of evidence. Moreover, judges were willing to override jury verdicts when they considered them contrary to law.[9]

Still, jury nullification was defended in some instances. In the mid-1800s, some Northern juries refused to convict abolitionists who had violated the 1850 Fugitive Slave Law. Massachusetts lawyer Lysander Spooner wrote in praise of these jurors:

For more than six hundred years—that is, since Magna Carta, in 1215—there has been no clearer principle of English or American constitutional law, than that:  in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of such laws. . . . There is no more absurdity in giving a jury veto upon the laws than there is in giving a veto to  . . . the representatives, the senate, the executive, or the judges.[10]


Abolitionists praised these jury nullification verdicts for helping the anti-slavery cause.

In sum, then, the practice of jurors' interpreting the law as well as fact and acting according to their individual consciences rather than necessarily adhering to the law is a practice older than our nation itself.  Are these jurors courageous defenders of our liberty, or are they anarchists whose methods need to be subject to tighter regulation?

   Footnotes:

[1] Hayes, Jerry L., "The How and Why of the Jury System," The Benchbook: Anecdotes from the Lighter Side of the Law (Kent State University Press, 1987), 9.

[2] Marke, Julius J., Distinguished Research Professor of Law, St. John's University, "The Intriguing Doctrine of Jury Nullification."

[3] Hayes, supra, at 10.

[4] Marke, supra.

[5] Jhaveri, Ketan, "Judicial Gatekeeping in the United States: A Historical Perspective," The Judge's Role as Gatekeeper: Responsibilities and Power, produced by the Daubert Project, Berkman Center for Internet and Society, Harvard Law School, 1998.

[6] Hayes, supra, at 10.

[7] Jhaveri, supra.

[8] Id.

[9] Id.

[10] Spooner, Lysander, "An Essay on Trial by Jury," 1852.


     Jury Nullification, Part 2

     email: clr@clr.org



Posted October 26, 2000