Most people don’t know this, but a jury is completely allowed to find a person not guilty even if the evidence overwhelmingly supports the conclusion that the person is guilty. This is called Jury Nullification. A federal judge in New York recently wrote an article on it, including a good example of when it happens.  This may be way TMI for you non-lawyers out there, but if you are curious, I give you here an excerpt:

Perhaps the textbook example of jury nullification in a gun possession case is the recent acquittal of Cpl. Melroy H. Cort. As recently reported in the Washington Post,35 the defendant, a U.S. Marine whose legs had been amputated above the knees when he was wounded by a makeshift bomb during his third tour of duty in Iraq, was traveling from his home in Ohio to Walter Reed Army Medical Center in D.C. for treatment. While traveling in Washington, he had a flat tire, forcing him to pull over at a car repair shop. A witness noticed that he had a gun in his jacket pocket and called the police, who arrested him as he was sitting in his wheelchair. He offered no resistance and readily admitted that he was traveling with the gun.

Since the defendant was not licensed to possess the gun in Washington, as required by D.C. law, his court-assigned attorney advised him that he had no defense to the charge and encouraged him to plead guilty. Cort refused, fired his lawyer, and represented himself at trial. He testified about the loss of his legs and explained that he had a permit to carry the gun in Ohio, and had brought it with him because he had moved out of his house in anticipation of an extended stay at Walter Reed. He told the jury that his commanding officer had advised him to take the gun to the armory on Walter Reed’s base as soon as he arrived. Given that the defendant admitted that he possessed the gun in violation of D.C. law, his acquittal clearly amounted to jury nullification.

The province of a jury to disregard the law and engage in nullification has spawned debate and controversy throughout the years, and has been the subject of extensive commentary. The origin of jury nullification traces back to the mother country in the 1670 decision in Bushell’s Case, which arose out of the underlying prosecution of Quakers William Penn and William Mead for unlawful assembly.36 At trial, the evidence of the defendants’ guilt under the applicable statutes was “full and manifest,” but the jury “acquitted [the defendants] against the direction of the court in matter of law, openly given and declared to them in court.”37 After juror Bushell was imprisoned for disobeying the judge’s instructions, he sought habeas relief in the Court of Common Pleas, where Chief Justice Vaughan ruled that the detentions were unlawful, stating that “how manifest soever the evidence was, if it were not manifest to [the jury], and that they believed it such, it was not a finable fault, nor deserving imprisonment. …”38 Bushell’s Case is widely cited as the first precedent for the independence of the jury.

Closer to home, the John Peter Zenger trial in 1735 is the foremost historic example of jury nullification in the United States. Zenger was charged with publishing seditious libels against the governor of New York; it was clear he had published the writings in question. Although the court instructed the jury that it could only consider whether Zenger had printed the material at issue and could not consider the truth or falsity of the writing, the jury acquitted Zenger, believing that he had printed the truth and should not be convicted.39

As exemplified by the Zenger trial, the independence of the jury emerged as a central value of liberty in the new American republic. As one commentator has noted: “The proponents of the jury’s power and right to nullify the law suggest that juries have traditionally had that power and right. The nullification power was explicit in the American courts until the 1850s.”40 Even as late as 1910, Harvard Law School’s eminent Dean Roscoe Pound wrote: “Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.”41

There subsequently arose a more formalistic, anti-nullification view, as articulated by the Supreme Court in Sparf v. United States.42 In Sparf, which arose from a murder trial, the trial court had refused to comply with the jury’s request for instructions on the “lesser” charge of manslaughter because, while the evidence supported a murder conviction, it did not support a manslaughter conviction. While the jury apparently did not believe that it could acquit entirely, its request for instructions as to manslaughter showed that it was considering exercising leniency by convicting of the lesser offense, notwithstanding its legal inapplicability to the scenario at issue. The Supreme Court held that the trial judge had not erred in refusing the jury’s request. The Sparf court read Bushell’s Case narrowly — not as explicitly permitting jurors to nullify based on their personal view of the law, but merely as holding that Bushell could not be punished because “it could never be proved” that his refusal to convict was based upon his disregard of the law (which would have been impermissible), rather than his personal view of the evidence (which would have been permissible, however questionable).43 The Sparf court’s holding followed from its fear that “[p]ublic and private safety alike would be in peril if the principle [were] established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves.”44

This anti-nullification view was expressed once again in Horning v. District of Columbia,45 where the Supreme Court gave its approbation, over the dissent of Justice Brandeis, to the trial judge’s jury instruction that “a failure by you to bring in a [guilty] verdict in this case can arise only from a willful and flagrant disregard of the evidence and the law. …”46 Hewing to its formalistic approach, the majority opinion in Horning stated: “In [a case where the facts are not in dispute,] obviously the function of the jury if they do their duty is little more than formal.”47 While the Supreme Court recognized that the trial judge had “[p]erhaps [displayed] a regrettable peremptoriness of tone” in his comments on potential jury nullification, it concluded that “[i]f the defendant suffered any wrong it was purely formal since … on the facts admitted there was no doubt of his guilt.”48 In disagreeing with this view of the role of the jury, Brandeis retorted that “[w]hether a defendant is found guilty by a jury or is declared to be so by a judge is not, under the Federal Constitution, a mere formality,” and opined that “the presiding judge [had] usurped the province of the jury. …”49

The debate over the efficacy and acceptance of jury nullification has animated the circuit courts. In United States v. Dougherty,50 Judge Leventhal, writing for the D.C. Circuit, traced the evolving attitude toward jury nullification reflected in American jurisprudence. He noted that “in colonial days and the early days of our Republic [there were a] variety of expressions … from respected sources — John Adams; Alexander Hamilton; prominent judges — that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.”51 However, he continued, “[a]s the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.”52

Sparf was the natural end point of this evolution, Leventhal wrote, establishing that “[t]he jury’s role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do whatever it willed.”53 Judge Leventhal concluded that juries ought not be advised of their power of nullification, as “its explicit avowal risks the ultimate logic of anarchy”;54 as for the occasional exceptional case where nullification was indeed appropriate, he believed that “[t]he totality of input [from literature, media, word of mouth, history and tradition] generally convey[s] adequately enough the idea of … freedom in an occasional case to depart from what the judge says,” such that instructions to that end were not necessary.55 Judge Bazelon, in dissent, criticized as “sleight-of-hand” the practice of intentionally hiding the right of nullification — the existence of which the majority had acknowledged — from the jury.

See the whole article:  Guns and Nullification or here on BadgerLawyer

2 Responses to “What is Jury Nullification?”

  1. MsW says:

    Why isn’t the concept of Jury Nullfication more well-known?

    I’ve spoken to several people on this issue. Many of these people are well-educated, and many have also served on juries.
    None of those people, however, were at all aware of the jury’s right to nullify!

    I’ve read that in some states judges and prosecuting attorneys will dismiss jurors if it’s discovered they are as much as *AWARE* of Jury Nullification. Do you find that to be true in Wisconsin?

    Do these judges and attorneys truly feel that the potential jurors aren’t capable of distinguishing whether or not laws are just or where they indeed, do not apply to a case? Why the ‘secrecy’?

    AS a defense attorney, what are your personal thoughts on Jury Nullification?

  2. BadgerLawyer says:

    Jury Nullification is perhaps the best kept secret in criminal law. Lawyers are strictly forbidden from talking about it to the jury, and the jury is instructed in a way that makes it sound like they do not have the power to nullify. I have had a couple of trials where the jury afterward told me they wanted to find differently, but did not think they were allowed to. They seemed to believe they would get into trouble if they did what they thought was right. Because of that, I have learned over the years to do everything I can to give the jury some reason to find for my client, because then if they have the instinct to nullify, they have a reason based on the facts to go ahead and reach a verdict without worrying about getting in trouble. For example, in a Marijuana possession case where I suspect the jury might feel for my client, I might say “Now you see he admitted to the police it was his pipe, and everyone agrees it was marijuana, but the charge is Possession of Tetrahydracanabinols. Did you hear one single person use that magic word?” That at least sets up a way for the jury to feel like it can find for my client on one of those famous “technicalities,” which (unlike nullification) EVERYONE knows is an okay reason to render a verdict.

    You ask for my personal thoughts on jury nullification, and that is a complicated question. Not to get too philosophical, but if you think about formal systems of judging people, like courts, then history shows us a range of perspectives, from our system, which admonishes random people from the community to make a determination on the basis of logic and reason, to completely arbitrary systems in totalitarian regimes where you can get dead because you angered the wrong person. Somewhere along that spectrum, from pure arbitrariness to complete logic, the two opposites have to meet. In our system, that point is nullification. It is the amount of arbitrariness we allow. And I do think some amount is necessary, because there has to be a way for the deserving individual to escape an overly harsh punishment of blind justice. Like the PBS documentary about the homeless ex-con who found a handgun on the street, called the police, and brought it to them like they told him to — and was then charged by them with felon in possession. A fair system has to allow a jury to acquit a technically guilty individual who just shouldn’t be convicted. Otherwise, we place the law above our humanity. But on the other hand, arbitrariness in justice is the source of innumerable cruelties throughout history. “Witches” have been burned, Christians fed to lions, Jews sent to concentration camps, all in the name of (arbitrary) justice. History is littered with the corpses of victims of the arbitrary ruler’s “because I say so.” When arbitrariness is a significant part of the legal system, the barbaric, animal nature in humanity seems to leak out. And while I do think we should place our humanity above the law, I also am glad to live in a place and time where we place the law above our darker nature.

    So, how do I feel about jury nullification? Like most lawyers, when it works for my client, I feel great about it, and I wouldn’t mind if juries had a little more knowledge about it. But I would be very concerned about a legal system that devolved into juries of individuals who were absolutely confident in their ability to completely disregard the law and do whatever the hell they wanted. Our system strongly encourages juries to respect the law and set aside prejudices. In my experience, juries try very hard to uphold that, and I thank them for that. That does not always happen, though. Sometime a jury “arbitrarily” does the right thing by nullifying, but just as often, the jury does the wrong thing because they don’t like the look of the accused, whether because he is black, brown, ugly, gay, skin headed, illegal, or any other marker that draws on a collective prejudice of the random 12. A world where juries feel empowered to act on their prejudices is not a world I want to live in, and is one I spend considerable effort struggling against.

    In the end, I am pretty satisfied with the system the way it is. For the most part jurors take their role quite seriously, and really do their best to reach the right result for the right reasons. While I could (and sometimes do) go on at length about the flaws, unfairnesses, inefficiencies and prejudices in the system, at the core I believe we have achieved a justice system that, at the core, is about as good as humanly possible.

    Thanks for your post.