by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Did you ever want to tell “the man” that his rules were bogus, and you simply were not going to play by them? Little known fact: as a juror, you can. Today’s topic is jury nullification. Chris from North Carolina wrote:
Could you explain what "Jury Nullification" is, and why judges never mention it when giving instructions to jurors?
Jury nullification refers broadly to a jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.
In jury trials, a jury of 6-12 people is sworn in to apply the facts to the law. Attorneys present their evidence, and make arguments about what the evidence shows, and what it does not show. After the attorneys present their evidence, then the judge will instruct the jury on the law. The judge will tell the jurors that, if they find certain things to be true, then the law is that they should render a certain verdict. Then, the jurors deliberate until they reach the required consensus to render a verdict. In criminal trials, verdicts typically must be unanimous, and civil verdicts usually require about three-fourths of the jurors to agree on one verdict. After the jury reaches the proper consensus, then it hands its verdict to the judge, and that verdict usually becomes the official outcome of the case.
In a jury nullification setting, the jury simply refuses to apply the facts of the case to the law as the judge has instructed it. A good modern example is marijuana. Medical marijuana is currently legal under California law in certain circumstances, but remains illegal under federal law. So, in a federal trial for possession of marijuana, the government might produce evidence that the defendant was smoking a joint. The judge would instruct the jury that, if a person smokes marijuana, the law indicates that he is guilty of the crime of possession of a controlled substance.
Then, the jury deliberates. The jurors might decide that, while possession of marijuana is technically illegal under federal law, they simply refuse to convict the defendant. So, they unanimously reach a verdict of not guilty. After the verdict is entered, then the defendant is free. The jurors basically ignored what the judge told them about the law, and decided to acquit because they simply disagree with a felony conviction for a person who was holding a single joint, and acting at the direction of his doctor. This is jury nullification. Historically, jury nullification was used to acquit people of violating statutes aimed at stopping white people from helping slaves, to acquit white defendants for killing black victims in some areas in the South, or to acquit people of alcohol offenses under prohibition. Some scholars even estimate that jury nullification occurred in 60% of prohibition cases, leading to the eventual passing of the 21st Amendment, which repealed prohibition.
There is an active debate on whether jury nullification is a good idea, a bad idea, a moral duty, or an immoral usurpation of the law. Proponents of jury nullification argue that a jury is the last check on the system, and a safeguard against government tyranny. A jury can step in and decide that a specific law is so fundamentally unfair that it simply refuses to apply it, or that applying a law to a specific situation will lead to base injustice.
Critics call it a violation of the oath that jurors take when they are sworn in, or an abuse of power that fundamentally undermines the law. If a jury can simply ignore the law, then the government lacks the power to keep order. The proper remedy for a bad law is to repeal it, but to respect it so long as it is on the books.
Regardless of whether it is right or wrong, jury nullification is perfectly legal in the United States.
Now, let’s turn to Chris’ second question of why judges never give instructions on the issue. The answer is that, in 1895, the U.S. Supreme Court held in a 5-4 decision that a trial judge has no duty to instruct on jury nullification. The main reason is that a court’s duty is to the law, and it can only fulfill this duty by instructing jurors to follow the law. This case has been broadly cited for the proposition that an attorney cannot argue to the jury that it should simply ignore the law and do what it wants. Also, many courts have held that it is proper to strike a juror during voir dire if the juror expresses that he will not follow the law. So, judges cannot generally instruct a jury that it has the right to simply ignore the law, and enter whatever verdict it wants.
Practically, jury nullification does not happen very often. Most jurors take their job seriously, and uphold their oath to apply the facts to the law. Only when all the members of the jury (or most, in civil cases) can agree to disregard the law can nullification work.
So, while the judge will not tell you, you may always elect to simply tell the man to go away, and you are making the decision you want despite what the law says. Enjoy your next jury duty!
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