What is Jury Nullification?

Jury nullification is the power of juries to acquit a defendant despite evidence that the defendant is guilty. In effect, this gives juries the power to judge not only the defendant, but also the law. A jury can decide that, even though the defendant may be guilty, the law (or, more often, the method by which the defendant was arrested and brought to trial) is unjust.

The concept of jury nullification was inherent in the judicial system the Founders developed. In his “Notes on the State of Virginia,” Jefferson stated, “It is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.” Writing to Thomas Paine in 1789, Jefferson also stated, “I consider…[trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” In 1804, Alexander Hamilton said, “Jurors should acquit, even against the judge’s instruction…if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong.” This spirit is reflected in the ruling of 4th Circuit Court of Appeals in the 1969 case of United States vs. Moylan: “If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence…If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. It is further reinforced in the ruling of the 1972 District of Columbia Circuit Court of Appeals in United States vs. Dougherty, “[The jury has an] unreviewable and irreversible power . . . to acquit in disregard of the instructions on the law given by the trial judge . . . The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.”

While nullification is largely a good thing in that it gives people power to affect the laws of a country, there are problems. First, it presupposes an intelligent and informed jury dedicated to rendering the best possible decision. Whether such a jury exists is left to the reader to determine. As far as an informed jury, the Supreme Court ruled on this in 1895. In Sparf vs. United States, the Court upheld the principle of jury nullification, but also stated that the judge is in no way required to inform the jury of this right.

A potentially greater problem is that it can be supposed that such a power can be abused. For example, suppose a popular movie star and sports hero was accused of the brutal murder of two people or a mayor is caught on tape buying and using a controlled substance. All the evidence points to the guilt of the accused. Regardless of this, the jury acquits the accused. What law is the jury nullifying? How have these individuals been “railroaded?” The answer is that people are people and don’t always make decisions for the best reasons. This is the price for this check. What is curious is that the only examples of jury nullification that appear in the media are the ones where the right is used poorly. The truth is quite different. For every celebrity acquitted because of his popularity, there is an example of a person acquitted because the government overstepped its limits. These are cases where the arrest was based on an improper search or as the result of an improperly gained “confession.”

While we may rightly abhor a case where a clearly guilty child abuser is acquitted, the fact that his confession was gained only after being repeatedly beaten by the police or denied food or sleep for an extended period of time should concern us more. The loss of freedom does not occur in one fell swoop, it is the result of a series of small concessions.

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