What is Jury Nullification?
Every person accused of a crime has the right to a trial by jury, which must determine if there is evidence beyond a reasonable doubt that the accused committed the crime; likewise, in a civil case, plaintiffs and defendants may have liability and damages determined by a jury, which must render a decision based on a preponderance of the evidence.
Most of us understand the importance of the jury system in achieving justice and the rule of law. But few people know that a jury has power that goes beyond the simple weighing of the evidence. And many in the justice system, including prosecutors and judges, want to keep it that way.
This power is known as “jury nullification.” Jury nullification is when a jury finds that the evidence meets the standard of proof required for a conviction (or a plaintiff’s verdict in a civil case), and yet votes to acquit the accused (or rules for the defendant in a civil case), because they believe the law to be unjust.
Jury Nullification in History
Jury nullification is an American legal tradition that has played an important part in our history, going back to colonial times. It resulted in the acquittal of the participants in the Boston Tea Party, who deliberately defied the laws of the British king and his representatives in the American colonies. It firmly established the principle of freedom of speech in the acquittal of New York publisher John Peter Zenger, who defied a law forbidding criticizing of colonial government officials. It was a means by which those who refused to return runaway slaves to their owners as required by the Fugitive Slave law could escape punishment for acting according to their principles, and it prevented punishment of some protesters against the Vietnam War who committed acts of civil disobedience to oppose a war they considered immoral.
Jury nullification has played a role in the development of a more just America; but today’s juries are deliberately kept in the dark about their power to oppose unjust laws by ruling against punishing a person accused of breaking them—that they have the right not only to judge the accused, but also to judge the law under which the accused was charged.
Arguably, a judge issuing instructions to a jury should be required to inform its members of this right; but the opposite is true. Judges never inform jurors of this legal option; and defense counsel in most courts may not mention it. In New York, a man who distributed flyers near the federal courthouse informing passersby of this right was charged and convicted of jury tampering—a conviction which was, later overturned on appeal.
Nevertheless, it remains forbidden in most states to inform a jury that their power goes beyond merely weighing the evidence presented in the case.
Pros and Cons
Jury nullification can be used to circumvent draconian laws in states with harsh mandatory minimum sentences for minor drug charges, or in cases like those mentioned above, when laws are so unjust that there is widespread agreement that punishment for breaking them is inappropriate. But it also has a potential downside. Juries in areas when racism is deeply entrenched, as in the Jim Crow South, could acquit white perpetrators of violence against non-whites; it creates the possibility of unequal punishments in different cases for the same crime; and some argue that it undermines the rule of law and sets the stage for anarchy.
A Jury Needs to Know
Jury nullification is a legal option in our justice system, and failure to inform the members of a jury of this power limits their ability to act in a manner that is entirely within the scope of their authority. U.S. law requires that law enforcement inform the accused of their legal rights. Doesn’t it follow that juries should be afforded the same treatment?
It is an interesting and contentious concept, and one that could have a considerable impact on a system in which too large a part of our population is subject to incarceration for minor offenses, such as marijuana sale and use, that are practiced routinely by a fairly large portion of respectable American society.