Jury Nullification Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

Jury nullification is the term used to describe a jury’s acquittal of a criminal defendant in a case in which the evidence and law strongly support a conviction. Jury nullification has sometimes been called “a verdict according to conscience” and defined expansively as any verdict that better satisfies the jurors’ collective sense of justice than one that comports with the weight of the evidence and the applicable law. This broader definition of jury nullification can encompass verdicts in civil cases (for either the plaintiff or the defendant) and in criminal cases in which the jury convicts in spite of substantial evidence supporting an acquittal. However, most commentators define nullification more narrowly as the jury’s intentional disregard of the law to render an acquittal in favor of an otherwise guilty criminal defendant. At various points in U.S. history including contemporary times, jury nullification has been characterized as (1) a right that jurors may exercise to fulfill their proper role as a bulwark against tyranny in the justice system, (2) a power that jurors possess, but should seldom if ever use, or (3) a violation of the jurors’ oath to render a verdict that comports with the weight of the evidence and the applicable law. Issues and trends concerning jury nullification include efforts by state legislatures and public referenda to statutorily recognize jury nullification as a right.

History of Jury Nullification

Jury nullification existed as a phenomenon in English law as early as the Middle Ages. In his seminal treatise on the topic, Thomas A. Green provides substantial evidence that juries in the 15th and 16th centuries would routinely acquit criminal defendants in cases involving charges other than homicide, ostensibly because they viewed the penalty (death) as too harsh for crimes less serious than murder. Perhaps the best known case of jury nullification from early English history is Bushel’s Case. In 1670, William Penn and William Mead were arrested in London and charged with unlawful assembly for preaching Quakerism in public. After the evidentiary phase of the trial, the judge instructed the jury to deliberate and to return a guilty verdict. When the jury refused to do so, and returned an acquittal instead, the judge ordered all of the jurors into prison for their refusal to comply with his instructions. Edward Bushel, one of the jurors in the Penn trial, submitted a writ of habeas corpus to the Court of Common Pleas demanding to be released. In granting the writ and ordering Bushel released from prison, the chief judge of the Court of Common Pleas noted that jurors are the ultimate judges of the facts; trial judges have no authority to command jurors to adopt the judges’ interpretation of trial evidence or to punish jurors for delivering a verdict contrary to the instructions of the trial court.

That precedent—that jurors are independent of the trial judge and may not be punished for their verdict—was transferred to the American colonies as part of the English common law and played a significant role in events leading to the American Revolution. The charge levied against King George III in the Declaration of Independence that he deprived the colonists “in many cases, of the benefits of Trial by Jury” referenced the British practice of trying individuals charged with smuggling (to avoid paying the much-despised Stamp Tax) in bench trials before the Admiralty Court, and transporting debtors back to England for trial because juries all too frequently returned verdicts favoring the debtors rather than their British creditors.

Jury nullification was also credited for the jury’s verdict of not liable in the trial of John Peter Zenger, a New York printer who was sued for seditious libel for printing criticism of William Cosby, the royal governor of New York. Zenger was defended by Andrew Hamilton who argued that the jury should ignore the judge’s demand that it return a verdict of liability and acquit his client as an expression of support for the freedom of the press and the right of Englishmen to challenge tyrannical governments. After the colonies had won independence, jury nullification continued to play a role in many of the great social and political controversies of American history. For example, northern juries often refused to convict defendants charged with violating the Fugitive Slave Act, and during Prohibition, juries throughout the country refused to convict defendants charged with the manufacture, possession, transport, or sale of alcohol.

Based on the historical record, jurors appear to have been quite willing to engage in nullification in the interest of justice when, in their perspective, the merits of cases warranted it. Early in the nation’s history, the trial bench largely recognized and even approved of the jury’s use of nullification. Many trial judges explicitly told jurors that they were the judges of both the facts and the law and were free to disregard the judge’s synopsis of the applicable law for that case. This practice may have been implicit recognition that the individuals serving as trial jurors often had as much or more knowledge about and experience in law as the trial judges themselves.

This deference to juries began to change by the middle of the 18th century as the professionalism of the trial bench increased and the franchise of jury service expanded to include a broader and less elite swath of the local community. More and more frequently, final instructions to the jury informed jurors that although they were judges of the facts and the law, they should “pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are best judges of facts, it is, on the other hand, presumable that the courts are the best judges of the law.” In 1895, the U.S. Supreme Court ultimately adopted this view in its opinion in Sparf and Hanson v. United States. Although Sparf still characterized the ability of jurors to decide the law as a right, it held that federal judges were not obligated to inform jurors about this right. For the next several decades, state supreme courts followed the federal court’s lead in redefining jury nullification as a power rather than a right and omitting any reference to this power in jury instructions lest jurors so informed take it upon themselves to exercise that power.

This shift in the definition of jury nullification also led to changes in trial procedures to ensure that jurors would follow the judge’s interpretation of the law. During jury selection (voir dire), for example, trial judges and attorneys began to question jurors about their willingness to follow the judge’s instructions about the law as a qualification for selection as a trial juror. Jurors who unequivocally expressed their refusal to follow the law could be removed for cause, and even those who merely expressed ambivalence about the law could be struck by peremptory challenge. Immediately after jury selection, jurors were required to swear an oath to “render a true verdict according to the evidence, without fear, favor, or affection, and that I will be governed by the instructions of the Court.” In the final jury instructions, judges increasingly reminded jurors of this oath and even expanded its significance. Pattern jury instructions for the federal district courts in the Tenth Circuit now inform jurors that:

it is your sworn duty to follow all of the rules of law as I explain them to you. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences.

Not surprisingly, the net result of these changes in jury trial procedures was a jury composed of individuals who are considerably more likely to follow the law than not.

Jury Nullification in the Contemporary Criminal Justice System

Most contemporary reports of jury nullification are anecdotal, and are often cited as the underlying reason for a verdict with which the judge, the prosecutor, or public observers disagree. But jurors themselves rarely state unequivocally that they deliberately disregarded the law when deciding the case. In some cases, jurors may have misunderstood the law, which would not actually be jury nullification as the acquittal would not reflect a deliberate intent to disregard the law. In most cases, the acquittal likely reflects an honest assessment by the jurors about the weight of the prosecution’s case or the inferences that should be drawn from the evidence. The frequency of a jury’s acquittal in cases in which the judge would have convicted if the case had been tried by the bench is considerably greater than a jury’s conviction in cases in which the judge would have acquitted. This “leniency effect” was first identified by Harry Kalven and Hans Zeisel in The American Jury and has since been replicated in a number of subsequent studies.

Darrel Brown developed a useful taxonomy of jury nullification consisting of four situations in which jurors are most likely to disregard the law and return an acquittal for an otherwise guilty defendant: when jurors (1) view the law itself as unjust; (2) view the law as just, but its application in the context of the specific facts of the case as unjust; (3) view the law and its application as just, but view the police or prosecution’s conduct as so egregiously unfair to the defendant that they refuse to reward them with a conviction; and (4) acquit out of bias in favor of the defendant or against the prosecution. According to Brown, only the fourth situation is inconsistent with the rule of law; in the first three situations, the jury fulfills its legitimate role as a bulwark against tyranny.

The National Center for State Courts conducted a field study of hung juries in four high-volume, urban courts, which used Brown’s taxonomy to indirectly investigate whether individual jurors’ disagreement with the law contributed to hung jury rates. Out of 372 criminal jury trials, the study found that juries that acquitted (101) and juries that deadlocked (27) rated the fairness of the law and the fairness of the legally appropriate outcome significantly lower than juries that convicted on all or most of the charges. The significance of legal fairness continued to play a role in jury verdicts to acquit, even when other factors such as the weight of the evidence, police and defendant credibility, and jurors’ perceptions that they had heard all of the relevant evidence were taken into account. Nevertheless, close scrutiny of 53 cases in which the jurors rated the evidence as strongly favoring the prosecution but the jury hung or acquitted on most or all of the charges, revealed only two cases in which the jurors reported significantly lower ratings of legal fairness, suggesting that overt nullification is a relatively rare occurrence in most jury trials.

Judges, prosecutors, and other criminal justice professionals take some comfort in the fact that jury nullification is rarely a contributing factor, much less the only factor, in jury verdicts for acquittal. Once the jury is sworn and the trial begun, it is extremely difficult to remove a “nullifying juror.” In United States v. Thomas, for example, the trial judge dismissed a juror in a drug conspiracy case for failure to follow the jury instructions after the other jurors accused him of refusing to deliberate. After noting the impropriety of the judge’s investigation of individual jurors’ opinions after the jury deliberations had begun, the appellate court overturned the conviction on grounds that the juror had expressed reservations about the sufficiency of the trial evidence supporting a conviction, making it impossible to determine whether the juror intended to disregard the law or simply had doubts about the evidentiary value of trial evidence. It is similarly difficult to hold nullifying jurors accountable for their verdicts. In 1999, for example, a Colorado prosecutor charged Laura Kriho with obstruction of justice for failure to disclose her involvement in a marijuana legalization organization during jury selection for a drug possession trial; Kriho was the lone holdout juror in the case that ultimately was declared a mistrial. The Colorado Court of Appeals reversed the contempt of court charges, ruling that the trial court’s decision was based on the testimony of other jurors about Kriho’s alleged intent to nullify the law, rather than any testimony by Kriho herself.

Current Issues and Trends Related to Jury Nullification

Although the incidence of jury nullification in contemporary criminal trials appears negligible, a vigorous debate currently rages in academic, legal, judicial, government, and even public activist circles about its legitimacy within the criminal justice system. The issue has received more attention and a greater level of urgency within the criminal justice system due to the emergence of the Fully Informed Jury Association (FIJA), an organization that promotes public education and outreach about jury nullification. In addition to online activism, FIJA members have also distributed leaflets and brochures to members of the public (and presumably prospective jurors) as they enter courthouses and on cars parked in courthouse parking lots. The effectiveness of legal responses has been mixed because freedom of speech protections on public property often restrict any punitive measures that police or courts can undertake unless the speech is aimed exclusively at jurors who have already been selected for a specific trial (e.g., jury tampering).

In addition to public activism, state legislators in at least seven states (Alaska, Georgia, Iowa, Montana, New Hampshire, South Dakota, and Tennessee) introduced bills that expressly recognize the right of jurors to judge the law as well as the facts. In some instances, these bills require the trial judge to inform jurors about jury nullification; others permit the defendant to argue nullification. As of early 2013, only New Hampshire had enacted such a law. In most jurisdictions, trial judges are prohibited from informing jurors about jury nullification and most would not offer such an instruction, if it were permitted and are extremely reluctant to permit defense counsel to argue for nullification.

Bibliography:

Brown, Darrel K. “Jury Nullification Within the Rule of Law.” Minnesota Law Review, v.81 (1997).
Conrad, Clay S. Jury Nullification: The Evolution of a Doctrine. Durham, NC: Carolina Academic Press, 1999.
Green, Thomas A. Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800. Chicago: University of Chicago Press,
Hannaford-Agor, Paula L. and Valerie P. Hans. “Nullification at Work? A Glimpse From the National Center for State Courts Study of Hung Juries.” Chicago-Kent Law Review, v.78 (2003).
Marder, Nancy S. “The Myth of the Nullifying Juror.” Northwestern University Law Review, v.93 (1999).
Rogers, Frederic B. “The Jury in Revolt? A ‘Heads Up’ on the Fully Informed Jury Association Coming Soon to a Courthouse in Your Area.” Judges’ Journal, v.35/3 (Summer 1996).

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