In the United States, jury nullification occurs when a jury in a criminal case reaches a verdict contrary to the weight of evidence, sometimes because of a disagreement with the relevant law."Jury nullification". Encarta dictionary. Microsoft Corporation. Archived from the original on 2009-11-01. Retrieved 2009-05-21. It has its origins in colonial America under British law. The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment's Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors cannot be punished for the verdict they return.
In practice The tradition of jury nullification in the United States has its roots in the British legal system, specifically in a 1670 English case where Quakers were acquitted by a jury of violating a law that permitted religious assemblies only under the Church of England. In 1735, journalist John Peter Zenger was acquitted in New York by a jury that nullified a law making it a crime to criticize public officials. Later, colonial juries nullified the Navigation Acts, which would have forced all trade with the colonies to pass through England for taxation.
Just before the American Civil War, Northern juries, increasingly abolitionist, sometimes refused to convict for violations of the 1850 Fugitive Slave Law because jurors hated the law, as it protected slaveowners. In 1851, 24 people were indicted for helping a fugitive escape from a jail in Syracuse, New York. The first four trials of the group resulted in three acquittals and one conviction, and the government dropped the remaining charges. Another case is the jury behavior after the Christiana Riot in Pennsylvania. Likewise, after a crowd broke into a Boston courtroom and rescued Anthony Burns, a slave, the grand jury indicted three of those involved, but after an acquittal and several hung juries, the government dropped the charges.
In the 1794 case Georgia v. Brailsford, the U.S. Supreme Court directed a jury that although they would ordinarily be expected to follow the judge's directions, they could not be compelled to do so. By the middle of the 19th century, some judges sought to distance themselves from this position, increasingly holding that it was for judges to decide what the law said or meant, and that it was the jurors' duty to follow these judicial interpretations. In 1895, in Sparf and Hansen v United States, the Supreme Court held that its own earlier decision had been wrong, and that a jury had a duty to apply the law as set out by the trial judge.
During the 19th and 20th centuries, especially in the 1950s and '60s civil rights movement era, some all-white juries acquitted white defendants accused of murdering blacks, but the problem, according to some scholars, was "not in jury nullification, but in jury selection. The jury was not representative of the community". During Prohibition, juries often nullified alcohol control laws, possibly as often as 60% of the time, because of disagreements with the justice of the law. This resistance is considered to have contributed to the adoption of the Twenty-first Amendment repealing the Eighteenth Amendment which established Prohibition.
Kalven's and Zeisel's study of the American jury found that juries acquitted when judges would have convicted in only 19% of cases, and of these, only 21% of the acquittals were attributable to jury nullification. Jury nullification sometimes takes the form of a jury convicting the defendant of lesser charges than the prosecutor sought.
In the 21st century, many discussions of jury nullification center around drug laws that many consider unjust either in principle or because they disproportionately affect members of certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification, and a recent rise in hung juries (from an average of 5% to nearly 20% in some locales) is seen by some as indirect evidence that juries have begun to consider the validity or fairness of the laws themselves (though other reasons such as the CSI effect may also be involved).
During the Vietnam War era, many protestors, including Benjamin Spock, sought jury nullification. Spock was convicted of conspiracy to counsel, aid, and abet registrants to avoid the draft, after the judge instructed the jury to apply the law as he laid it down, but the United States Court of Appeals for the First Circuit overturned the conviction because the judge had committed prejudicial error in putting to the jury ten special yes-or-no questions. Eight defendants from Oakland, California, were tried in 1969 for conspiracy to disrupt a draft induction center, and the jury acquitted after being told by the judge that it could acquit if it felt the defendants' actions were protected by First Amendment guarantees of freedom of speech and assembly. Likewise, in a case involving ten Seattle protestors accused of blocking a munitions train carrying bombs destined for Vietnam, the jury acquitted after the judge allowed the defendants to talk about their motives and permitted the defense to ask the jurors to invoke their consciences and object to the war by acquitting.
The Camden 28 were acquitted despite overwhelming evidence of their guilt. In at least one case, the judge allowed the jury to hear testimony about the Pentagon Papers and the nature of the Vietnam War. In one Vietnam-era case, the defense compared the defendants' actions in breaking into a government office to the Boston Tea Party, saying that no one "would say that breaking into a ship shouldn't be criminal, shouldn't be a crime", but that it was justified under the circumstances. There was also a case in which a jury voted 9–3 to acquit peace activists despite their admission that they poured blood in a military recruiting center.
Several recent cases have prompted speculation that the verdicts were products of jury nullification. These include the prosecution of Washington, D.C.'s former mayor Marion Barry, the trial of Lorena Bobbitt, the prosecution of the police officers accused of beating Rodney King, the prosecution of two men charged with beating Reginald Denny in the resulting Rodney King riots, the trial of the Menéndez brothers for their parents' murder, and the O. J. Simpson murder case. In the days preceding Jack Kevorkian's trial for assisted suicide in Michigan, Kevorkian's lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger's statements had already been extensively reported in the media.
In a 1998 article, Vanderbilt University Law School Professor Nancy J. King wrote, "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes or other mandatory sentence, and in assisted suicide, drug possession, and firearms cases."
Court opinions In the 1794 case Georgia v. Brailsford, the Supreme Court directly tried a common law case before a jury. The facts in the case were not in dispute, and the legal opinion of the court was unanimous, but the Court was nonetheless obligated under the Seventh Amendment to refer the matter to the jury for a general verdict. Chief Justice John Jay's nuanced instructions to the jury have been cited frequently in discussions of jury nullification:
Although no precedent revokes the power of nullification, since the 19th century courts have tended to restrain juries from considering it, and to insist on their deference to court-given law. The first major decision in this direction was Games v. Stiles ex dem Dunn, which held that the bench could override the jury's verdict on a point of law.
The 1895 decision Sparf v. United States,Sparf v. U.S. written by Justice John Marshall Harlan, held that a trial judge has no responsibility to inform the jury of its right to nullify laws. It was a 5–4 decision. Often cited, it has led United States judges to commonly penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge."...the court can also attempt to prevent such an occurrence of juror nullification by (1) informing prospective jurors at the outset that jurors have no authority to disregard the law and (2) obtaining their assurance that they will not do so if chosen to serve on the jury." People v. Estrada, 141 Cal.App.4th 408 (July 14, 2006. No. C047785).
A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.
Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:
In 1972, in United States v. Dougherty, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed a jury's de facto power to nullify the law but upheld the denial of the defense's chance to inform the jury of that power. Then-chief judge David L. Bazelon wrote an opinion dissenting in part, arguing that the jury should be informed of its power to render a verdict according to its conscience if the law is unjust. He wrote that refusal to allow the jury to be so informed constitutes a "deliberate lack of candor". It has been argued that the denial of jury nullification requests negates much of the point of self-representation.
In 1988, in U.S. v. Krzyske, the jury asked the judge about jury nullification. The judge responded, "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error.
In 1997, in U.S. v. Thomas, the U.S. Court of Appeals for the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b). But the Second Circuit also held that the court must not remove a juror for an alleged refusal to follow the law as instructed unless the record leaves no doubt that the juror was engaged in deliberate misconduct—that he was not simply unpersuaded by the Government's case against the defendants.
In 2001, a California Supreme Court ruling on a case involving statutory rape led to a new rule requiring jurors to inform the judge whenever a fellow juror appears to be deciding a case based on his or her dislike of a law. But the ruling cannot overturn the practice of jury nullification itself because of double jeopardy: a defendant who has been acquitted of a charge cannot be charged with it a second time, even if the court later learns jury nullification played a role in the verdict.
The Supreme Court of the United States has not recently confronted the issue directly.