Jury nullification

Jury nullification

Jury nullification means making a law void by jury decision; in other words, "the process whereby a jury in a criminal case effectively nullifies a law by acquitting a defendant regardless of the weight of evidence against him or her." [ [http://encarta.msn.com/encnet/features/dictionary/DictionaryResults.aspx?refid=1861695062] ]

Jury nullification is more specifically any rendering of a verdict by a trial jury, acquitting a criminal defendant despite the defendant's violation of the letter of the law. This verdict need not disagree with the instructions by the judge concerning what the law is, but may disagree with an instruction, if given by the judge, that the jury is required to apply the law to the defendant if certain facts are found.

Although a jury's refusal relates only to the particular case before it, if a pattern of such verdicts develops in response to repeated attempts to prosecute a statutory offense, it can have the practical effect of disabling the enforcement of the statute. "Jury nullification" is thus a means for the people to express opposition to an unpopular legislative enactment.

The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the accused and the law, than officials who may be unduly influenced to follow merely the established law. Jury nullification is a reminder that the right to trial by one's peers affords the public an opportunity to take a dissenting view about the justness of a statute or official practices.

Despite perceived righteous applications of jury nullification, this verdict anomaly can also occur simply as a device to absolve a defendant of culpability. Sympathy, bias or prejudice can influence some jurors to wholly disregard evidence and instruction in favor of a sort of "jury forgiveness."

cquote|I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.
4=Thomas Jefferson|5=1789 letter to Thomas Paine

cquote|The jury has the right to judge both the law as well as the fact in controversy.
4=John Jay|5=first Chief Justice of the United States

Historical examples include American revolutionaries who refused to convict under English law, [ [http://www.gaspee.org/WhatstheImportance.html Gaspee Affair] ] juries who refuse to convict due to perceived injustice of a law in general, [ [http://tarlton.law.utexas.edu/lpop/etext/penntrial.html Trial of the Quaker William Penn (founder of Pennsylvania), 1670] and [http://www.constitution.org/trials/penn/penn-mead.htm Trial of Penn and Mead] (HTML)] the perceived injustice of the way the law is applied in particular cases, [ [http://news.bbc.co.uk/1/hi/uk/216868.stm Clive Ponting and "Troubled history of Official Secrets Act", 1985] ] and cases where the juries have refused to convict due to their own prejudices such as the race of one of the parties in the case. [Kennedy, Randall. "Racial Conduct by Jurors and Judges: The Problem of the Tainted Conviction," pp. 277-282, and "Black Power in the Jury Box?", pp. 295-310, Race, Crime and the Law (1997).]


Jury nullification is a "de facto" and traditional power of juries, not normally disclosed to jurors by the system when they are instructed as to rights and duties. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition (in some countries) on retrying defendants after an acquittal; and the constitutional prohibition on retrying criminal defendants (see related topics "res judicata" and double jeopardy).

Jury nullification is the source of much debate. Some maintain that it is an important safeguard of last resort against wrongful imprisonment and government tyranny.Fact|date=September 2008 Others view it as an abuse of the right to a jury trial that undermines the law.Fact|date=September 2008 Some view it as a violation of the oath sworn to by jurors.Fact|date=September 2008 Others view the requirement that jurors take an oath to be unlawful,Fact|date=September 2008 while still others view the oath's reference to "deliverance" to require nullification of unjust law: "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help [me] God." "United States v. Green", 556 F.2d 71 ~.1 (D.C. Cir. 1977). Some fear that nullification could be used to permit violence against socially unpopular factions.Fact|date=April 2008 The safeguards against abuse of jury nullification during conviction are the requirements for the jury, the judge and any courts of appeal to be unanimous. Nevertheless, some opponents of jury nullification maintain conviction through nullification is sufficiently threatening to minority rights to counter-act benefits to minority rights during acquittal through nullification of unjust law. Jury nullification may also occur in civil suits, in which the distinction between acquittal and conviction is irrelevant. Fact|date=April 2007

Nevertheless, there is little doubt as to the ability of a jury to nullify the law. Today, there are several issues raised by jury nullification.
*First, whether juries can or should be instructed or informed of their power to nullify.
*Second, whether a judge may remove jurors "for cause" when they refuse to apply the law as instructed.
*Third, whether a judge may punish a juror for exercising his power of jury nullification.
*Fourth, whether all legal arguments, except perhaps on motions "in limine" to exclude evidence, should be made in the hearing of the jury.

Common law precedent

The early history of juries supports the recognition of the "de facto" power of nullification. By the 12th century, common law courts began using juries for more than administrative duties. Juries were composed primarily of "laymen" from the local community. They provided a somewhat efficient means of dispute resolution with the benefit of supplying legitimacy.

Largely, the earliest juries returned verdicts in accordance with the judge or the crown. This was achieved either by "packing the jury" or by "writ of attaint". Juries were packed by hand-selecting or by bribing the jury so as to return the desired verdict. In cases of treason or sedition, this was frequently the case. In addition, the writ of attaint allowed a judge to retry the case in front of a second jury when the judge believed the first jury returned a "false verdict". If the second jury returned a different verdict, that verdict was imposed and the first jury was imprisoned or fined.

This history, however, is marked by a number of notable exceptions. In 1554, a jury acquitted Sir Nicholas Throckmorton, but was severely punished by the court. Almost a century later in 1649, in the first known attempt to argue for jury nullification, a jury likewise acquitted John Lilburne for his part in inciting a rebellion against the Cromwell regime. The theoretician and politician Eduard Bernstein wrote of John Lilburne's trial:

His contention that the constitution of the Court was contrary to the fundamental laws of the country was unheeded, and his claim that the jury was legally entitled to judge not only as to matters of fact but also as to the application of the law itself, as the Judges represented only 'Norman intruders', whom the jury might here ignore in reaching a verdict, was described by an enraged judge as 'damnable, blasphemous heresy.' This view was not shared by the jury, which, after three days’ hearing, acquitted Lilburne — who had defended himself as skilfully as any lawyer could have done — to the great horror of the Judges and the chagrin of the majority of the Council of State. The Judges were so astonished at the verdict of the jury that they had to repeat their question before they would believe their ears, but the public which crowded the judgment hall, on the announcement of the verdict, broke out into cheers so loud and long as, according to the unanimous testimony of contemporary reporters, had never before been heard in the Guildhall. The cheering and waving of caps continued for over half an hour, while the Judges sat, turning white and red in turns, and spread thence to the masses in London and the suburbs. At night bonfires were lighted, and even during the following days the event was the occasion of joyful demonstrations. [Eduard Bernstein, "Sozialismus und Demokratie in der grossen englischen Revolution" (1895); trans. H.J.Stenning (1963, NYC) as "Cromwell and Communism: Socialism and Democracy in the Great English Revolution", Library of Congress 63-18392.]
In 1653 Lilburne was on trial again and asked the jury to acquit him if it found the death penalty "unconscionably severe" in proportion to the crime he committed. The jury found Lilburne "Not guilty of any crime worthy of death".

By the late 17th century, the court's ability to punish juries was removed in Bushell's Case [http://www.constitution.org/trials/bushell/bushell.htm Bushell's Case trial report] .] involving a juror on the case against William Penn.

In 1670, William Penn and William Mead were arrested for illegally preaching a Quaker sermon and disturbing the peace. Four jurors, led by Edward Bushell refused to find them guilty but instead of dismissing the jury the judge sent them back for further deliberations. Despite the fact that the judge demanded a guilty verdict, the jury this time unanimously found Penn guilty of preaching but acquitted him on the charge of disturbing the peace and acquitted Mead of all charges. The jury was then subsequently kept for three days without "meat, drink, fire and tobacco" to force them to bring in a guilty verdict and when they failed to do so the judge ended the trial. As punishment the judge ordered the jurors imprisoned until they paid a fine to the court. Four jurors refused to pay the fine and after several months, Edward Bushell sought a writ of habeas corpus. Chief Justice Vaughn, sitting on the Court of Common Pleas, discharged the writ, released them, called the power to punish a jury "absurd" and forbade judges from punishing jurors for returning a verdict the judge disagreed with. [ [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008417 Simon Stern, "Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification after Bushell’s Case,"] Yale Law Journal 111 (2002): 1815-48. ]

In 1681, a grand jury refused to indict the Earl of Shaftesbury. Then in 1688, a jury acquitted the Archbishop of Canterbury and six other Anglican bishops of seditious libel.

Juries continued, even in non-criminal cases, to act in defiance of the crown. In 1763 and in 1765, juries awarded £4,000 and £300 to John Wilkes and John Entwick, respectively, in separate suits for trespass against the crown's messengers. In both cases, messengers were sent by Lord Halifax to seize allegedly libelous papers.

In Scotland jury nullification had a profound effect bringing in (or as others believed reviving) the verdict of "not guilty". It was in 1728 that one Carnegie of Finhaven accidentally killed the Scottish Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of "proven" or "not proven" depending on whether they believed the facts proved the defendant had killed the Earl. However if the jury brought in a "proven" verdict they would in effect cause this innocent man to die. To avert this injustice, the jury decided to assert what it believed to be their "ancient right" to judge the whole case and not just the facts, rendering the verdict of "not guilty" which remains in Scotland to this day. Over time, however, juries have tended to favour the "not guilty" verdict over "not proven" and with this the interpretation has changed Fact|date=July 2007. Now the "not guilty" verdict has become the normal verdict when a jury is convinced of innocence and the "not proven" verdict is only used when the jury is not certain of innocence or guilt.

Standard jury trial practice in the USA during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury, so that the jury heard the same arguments the bench did in reaching his rulings on motions. This is evidenced by such decisions as the 1839 case "Stettinius v. U.S.", in which it was held that "The defense can argue law to the jury before the court gives instructions." [ Stettinius v. United States, Federal Case No. 13,387 (C.Ct. D.C. 1839), 22 Federal Cases 1322, 1333 quoting United States v. Fenwick, Federal Case No. 15,086 (1836). ] Later, judges began to demand the parties submit motions in writing, often before the jury was empaneled, to be argued and decided without the jury being present. This transition began with motions in "limine", to exclude evidence, on which it was felt the jury should not hear the argument because they would be informed of the evidence to be excluded. Later that was expanded to include all legal argument, so that today, that earlier practice of arguing law before the jury has been largely forgotten, and judges even declare mistrials or overturn verdicts if legal argument is made to the jury. However, since the original understanding of "jury" at the time the U.S. Constitution was framed included the making of legal argument to them, this raises the question of whether a trial before a jury in which legal argument is kept from them is a constitutional jury trial.


Although very rare, nullification does occur in Canada, however the Crown (prosecution) has a broader power to appeal rulings than in the US. So while a jury "may" ignore a judge's direction, Canadian law allows the prosecution to appeal from an acquittal (see also Double jeopardy). The often referred to case of jury nullification being appealed all the way to the country's highest court in Canada is the 1988 Supreme Court case, "R. v. Morgentaler, 1988 SCR 30" [http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html] .In addition, the Supreme Court of Canada, in a more recent decision "R. v. Krieger 2006 SCC 47" [http://scc.lexum.umontreal.ca/en/2006/2006scc47/2006scc47.html] , confirmed that juries in Canada have the power to refuse to apply the law when their consciences require that they do so. The issue was also touched upon in "R. v. Latimer, 2001 SCC 1" [http://scc.lexum.umontreal.ca/en/2001/2001scc1/2001scc1.html] , where "The trial did not become unfair simply because the trial judge undermined the jury’s de facto power to nullify. In most if not all cases, jury nullification will not be a valid factor in analyzing trial fairness for the accused. Guarding against jury nullification is a desirable and legitimate exercise for a trial judge; in fact a judge is required to take steps to ensure that the jury will apply the law properly."


In 1982, during the Falklands War, the British Navy sank an Argentine Cruiser – the "ARA General Belgrano". A civil servant (government employee) named Clive Ponting leaked two government documents concerning the sinking of the cruiser to a Member of Parliament (Tam Dalyell), and was subsequently charged with breaching the "Official Secrets Act". The judge in the case directed the jury to convict Ponting as he had clearly broken the "Official Secrets Act" by leaking official information about the sinking of the Belgrano during the Falklands War. His main defence, that it was in the public interest that this information be made available, was rejected on the grounds that "the public interest is what the government of the day says it is", but the jury nevertheless acquitted him, much to the consternation of the Government. He had argued that he had acted out of 'his duty to the interests of the state'; the judge had argued that civil servants owed their duty to the government.

United States

Nullification has a mixed history in the United States. The first notable instance of jury nullification in the colonial United States occurred when in 1734 a jury refused to convict John Peter Zenger of seditious libel for publishing a newspaper critical of Governor William Cosby of New York. Jury nullification appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act. During the 20th century, especially in the Civil Rights Movement, all-white juries were known to refuse to convict white defendants of murdering blacks. [http://www.cato.org/pubs/policy_report/v21n1/jury.html Cato] .] During Prohibition, juries often nullified alcohol control laws, [http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html UMKC] .] possibly as often as 60% of the time. [http://www.fija.org/conrad_on_jury_duty.htm Conrad on Jury Duty] .] This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition. 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 is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves. [http://www.washingtonpost.com/wp-srv/national/jury080299.htm Washington Post] .]

In the early history of the United States, jury nullification was viewed favorably. The use of the jury to act as a protection of last resort was espoused by many influential people surrounding the framing of the U.S. Constitution. For example, John Adams said of jurors: "It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." [The Works of John Adams, The Second President of the United States, pg 255 [http://books.google.com/books?id=BGYFAAAAQAAJ&pg=PA255] ] First Chief Justice of the US John Jay wrote: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy". State Of Georgia v. Brailsford, 3 U.S. 1,4 (1794), [ [http://www.maxexchange.com/ybj/chapter8.htm A Mockery Of Justice Federal Reserve Banks IRS US Government Treason Rebellion Insurrection ] ]

It was over time that judicial and legal opinion slowly changed to consider jury nullification only a power and not a right of juries, as judges and prosecutors wanted stricter enforcement of laws that juries nullified. This shift stemmed from the 18th century conflict between two factions of English jurists, the first led by Lord Camden, which was originally prevalent in what became the United States, and the second led by Lord Mansfield. The position of the latter was called "Mansfieldism" by Jefferson [ [http://www.constitution.org/tj/ltr/1826/ltr_18260217_madison.htm Letter to James Madison, February 17, 1826] , complaining of Mansfieldism] and the shift has been called "Mansfieldization". [ [http://www.constitution.org/lrev/jdr/mansfield_recon.htm Mansfieldism Reconsidered] , by Jon Roland]

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. The first landmark decisions since the adoption of the U.S. Constitution confirmed several rights of the defense in a criminal case: a requirement on 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. ["United States v. Fenwick", 25 F. Cas. 1062; 4 Cranch C.C. 675 (1836)] ["Stettinius v. United States", 22 F. Cas. 1322; 5 Cranch C.C. 573 (1839).]

The first major decision that departed from this line was "Games v. Stiles ex dem Dunn", 39 U.S. 322 (1840), [ [http://www.constitution.org/ussc/039-322.htm 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. ["...the court can also attempt to prevent such an occurrence of juror nullification by (1) informing prospective jurors at the outset that jurors have no authority to disregard the law and (2) obtaining their assurance that they will not do so if chosen to serve on the jury." "People v. Estrada", 141 Cal.App.4th 408 (July 14, 2006. No. C047785).]

Recent court rulings have contributed to the prevention of jury nullification. 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. ["U.S. vs Moylan", 417 F 2d 1002, 1006 (1969). [http://www.askthelawguy.info/images/moylan.pdf] ] In 1972, in "United States v. Dougherty", 473 F.2d 1113, 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. [ [http://www.law.umkc.edu/faculty/projects/ftrials/juryseminar/USvDougherty1972.html U.S. v Dougherty] ] In 1988, the Sixth Circuit upheld a jury instruction that "There is no such thing as valid jury nullification." ["U.S. v. Krzyske"] In 1997, 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). [ [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=951337 U.S. v. Thomas No. 95-1337 (2nd Cir. 5-20-97).] ] The Supreme Court has not recently confronted the issue of jury nullification.

ee also

*Laura Kriho
*Ed Rosenthal
*Josephine Terranova
*Ultimate Fact
*Peter Wright
*John Peter Zenger
*"Citizens Rule Book"
*Fully Informed Jury Association
*Judgment notwithstanding verdict


[http://www.constitution.org/cmt/wf/htj.htm "History of Trial by Jury"] , William Forsyth. (1875)

External links

* [http://www.marx.org/reference/archive/bernstein/works/1895/cromwell/index.htm "Cromwell and Communism" aka "Socialism and Democracy in the Great English Revolution"]
* [http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html "Jury Nullification" by Doug Linder]
* [http://www.greenmac.com/eagle/ISSUES/ISSUE23-9/07JuryNullification.html "Jury Nullification: Why you should know what it is" by Russ Emal]
* [http://www.caught.net/juror.htm "Juror's Handbook - A Citizen's Guide to Jury Duty" by the American Jury Institute]
* [http://www.gutenberg.org/catalog/world/readfile?fk_files=38730&pageno=1 "Essay on the Trial by Jury"] by Lysander Spooner
* [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008417 "Bushell's Case"] - history of Bushell's Case and jury nullification in its aftermath

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