After hearing evidence and closing arguments by the prosecutor and defense attorney, jurors in a criminal case listen to instructions from the judge. The instructions are explanations of the law, or the rules, that the jury should use when evaluating whether the government proved its case. For example, in a prosecution for robbery, the judge will explain to the jury that before finding the defendant guilty, it must unanimously agree, beyond a reasonable doubt, that the defendant took something from the person of the victim, using force or fear. The judge will typically expand on that rule, explaining how much force or fear is required in order to meet the standard.
In the great majority of cases, the jurors apply the rules to the evidence as instructed by the judge. Sometimes they ask for clarifications when the instructions aren’t specific enough. But suppose one or more jurors disagree with the instructions? Jurors who disagree with the law they’re supposed to apply to the facts can prevent the jury from reaching a verdict, or (when all jurors adopt this stance) can end up with a verdict that they would not have reached otherwise. These results are known as “jury nullification,” which means that one or more members of the jury has ignored, or nullified, the law as instructed by the judge.
Juries Have the Power to Ignore the Law
Despite the stern admonition of the judge to “Follow these instructions,” and the oath each juror takes to follow the law, juries have the raw power to ignore or change the legal rules they apply to the evidence. First, juries are not called upon to explain their verdict—unlike civil cases, where juries may be asked to answer specific questions about their conclusions, a criminal case usually results in only one of two verdicts: Guilty or not guilty. (The exception in many states involves a “not guilty by reason of insanity” defense. In this situation, juries return a not guilty verdict with this specification, or explanation.) So it’s quite possible that no one outside the jury room will know that nullification is going on.
Second, even if nullification has held sway in the jury room, resulting in a not guilty verdict, the prosecution can’t do anything about it. Because of the double jeopardy clause in the Fifth Amendment of the U.S. Constitution, defendants cannot be tried again following an acquittal, despite the jury’s rogue behavior.
Should Juries Exercise the Power to Nullify?
It’s one thing to have the power to do something—quite another whether it’s right to do so. In the jury nullification context, many sound arguments counsel for and against it.
Arguments in Favor of Jury Nullification
Proponents of jury nullification point out that a trial by our peers is guaranteed precisely because we want decisions to be leavened by the common sense of lay people. In a way, they argue, the jury is the conscience of society, and their job is not only to decide whether the defendant did the acts charged, but whether he should be condemned and punished for it. The jury protects us from immoral or socially undesirable results.
Arguments Against Jury Nullification
The strongest argument against nullification points to the core principle of our judicial system: We are a nation of laws, not men (individuals); that’s why we have elected officials to determine the law (if we don’t like the law, we replace the legislators with those who will legislate differently). Allowing juries to by-pass this system can result in the unfortunate examples noted above. In addition, we ask jurors to take an oath to follow the law; how is embracing nullification consistent with this promise?
Nullification: Keep the Jury in the Dark
Despite having the raw power to ignore the law, the jury isn’t likely to hear an instruction from a judge that apprises them of this power (never in federal court, and only rarely in state court). Nor may a lawyer mention it during closing arguments. And judges may go to clever lengths to try to prevent a jury from nullifying.
For example, in the 1960s Benjamin Spock, the renowned baby doctor and anti-war activist, and others were charged in federal court with conspiring to aid draft evasion. The judge refused to instruct on nullification and, fearful that the jury would apply it anyway, required them to return “special verdicts” indicating their findings on specific factual allegations, none of which were in dispute. The idea was that they could not logically find that the facts were true and then return a verdict of not guilty. It worked: They returned a verdict of guilty, later telling Dr. Spock, “’Dr. Spock, we want you to know that all of the jurors consider you to be a true American hero.’ In response, one of the lawyers asked, ‘How then could you have convicted him?’ Looking puzzled, the juror replied, “We had no choice. He did what the government said he did.”’ (Jury Nullification: What it is, and How to Do It Ethically, by Monroe H. Freedman, Hofstra Law Review Vol. 42, p. 1125, discussing United States v. Spock, 416 F.2d 165 (1st Cir. 1969).)
However, the jury did have a choice, even though they were not allowed to learn about it from the judge or lawyers. The appellate court took issue with the judge's attempt to prevent nullification by requiring special verdicts. It reversed Spock’s convictions, holding that Spock had the right to a general verdict of guilty or not guilty.
When Does the Phenomenon of Nullification Appear?
The issue of jury nullification can arise in the following situations:
- The court’s instructions. Judges routinely admonish the jury to apply the law as explained in the instructions. Specifically, they must find the defendant guilty if they conclude beyond a reasonable doubt that the defendant committed the charged crimes.These instructions are proper because even though the jury has the power to nullify, it does not explicitly have the right to do so. Defendants are not entitled to an instruction that tells the jury of their power to nullify.
- Closing arguments. Defense counsel may attempt to tell the jury that they have the power to ignore the law, but such attempts are almost always impermissible, and result in contempt of court findings.
- Juror revolt. A prosecutor might attempt to have a juror discharged whom the government thinks is engaging in nullification. Judges handle these attempts with care, because they are justifiably wary of getting too involved in the motivations behind the jury’s deliberations, which are supposed to be off-limits except in the most extreme situations. If there’s any chance that the juror may simply not be convinced that the prosecution has met its burden of proof, the court will end the inquiry.
Questions For Your Attorney
- I’m accused of using marijuana in a state that doesn’t allow for recreational use. Is there a chance that if I go to trial, the jury will use nullification and acquit me?
- How do defense attorneys get the idea of nullification into the jurors’ heads, if they can’t speak of it directly?
- Do prosecutors ever use (or hope for) jury nullification to defeat a defendant's claim of self defense?