What is Jury Nullification?
Jury nullification is the process by which a jury acquits a criminal defendant even though they have broken the law, because the jurors believe the law to be wrong or unjust.
In the United States, juries have the sole power to convict or acquit in criminal trials. Therefore, they (technically speaking) can issue their verdict based on any factor they choose. In the vast majority of cases, juries will decide based on the facts and merits of the evidence and testimony presented to them, but they don’t have to. If a defendant is being tried under a law that the jury deems unjust, the jury can vote to acquit based on that alone.
Examples of Jury Nullification
Here are some examples of jury nullification:
- In 1733, John Peter Zenger, a German immigrant, was accused of libel because he printed a newspaper that criticized the royal governor. Under colonial law, any speech that criticized the government qualified as libel. It was very clear that John Zenger had indeed violated the law. However, after a speech by Zenger’s lawyer, Andrew Hamilton, in which he asked the jury to acquit his client for “the cause of liberty,” the jury returned a “not guilty” verdict after ten minutes of deliberation. (UShistory.org)
- In the 1800s, many juries declined to convict defendants accused of criminal conduct arising out of the Alien and Sedition Act. Similarly, northern juries refused to convict those accused of harboring escaped slaves under the Fugitive Slave Act.
- Jury nullification is increasingly used to free those accused of minor drug offenses, such as Javonnie Mondrea McCoy, who was found not guilty by a court in Georgia of manufacturing marijuana. The jury voted to acquit not because he did not violate the law, but because they believed he did not deserve a felony conviction for what he had done. (Criminal Legal News)
Is Jury Nullification Legal?
Jury nullification is legal, but juries do not necessarily have to be informed of its existence. The Supreme Court has ruled that juries have the power to nullify laws, but states and localities have the ability to prevent mention of jury nullification in courtrooms.
Because juries can technically acquit for any reason whatsoever and cannot be punished for their verdict, and since in most cases defendants cannot be tried twice for the same offense, jury nullification cannot be made illegal without a significant change in the fundamentals of the American legal system.
Is it Illegal to Talk About Jury Nullification?
In many cases, it is not allowed to talk about jury nullification inside of a courthouse. Laws vary based on jurisdiction, but even though jury nullification itself is legal, it may not be legal to talk about it.
That being said, things may change. According to the Fully Informed Jury Association, 24 states explicitly allow jury nullification in their state constitutions. Additionally, in 2019 the ACLU filed an amicus brief in the Colorado Supreme Court arguing that laws which prevent speech about jury nullification in courtrooms violates the First Amendment and the right to freedom of speech.
Can Lawyers Argue for Jury Nullification?
Lawyers must tread very carefully when considering arguments that rely on jury nullification. While jury nullification is not illegal in and of itself, many states prohibit advocating for it. Additionally, it is considered against the code of professional ethics for a lawyer to instruct the jury to nullify a law rather than prove their client did not break the law.
Lawyers who mention jury nullification could face reprimand by the judge or even further legal action. There are certain instances where it could be possible for a lawyer to argue for jury nullification, but such instances are situation-specific and rare.
Should We Change Jury Nullification?
We propose that more states and localities act to preserve the right to jury nullification. Jury nullification has a long and important history in the United States, and its existence serves as a check against the power of oppressive government. A jury of peers is the most just, most free, and most American tool to exercise justice, and juries ought to be fully aware of their duties and powers. It comes down to a state decision on whether to permit advocacy of jury nullification, but we believe juries should have the ability to acquit if they believe a law to be profoundly unjust.