Jury Nullification: Definition and Examples

A lawyer in a courtroom talking to the jury.
A lawyer in a courtroom talking to the jury.

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Jury nullification, in its most commonly seen form, occurs when a jury in a criminal trial finds a defendant not guilty even though the jurors believe beyond a reasonable doubt that the defendant has broken the law. For example, during Prohibition, juries who disagreed with alcohol control laws often acquitted defendants who had been caught red-handed trafficking beer or liquor. Because a not guilty verdict cannot be overturned in appeal, the law in question is said to have been nullified in that particular case.

Key Takeaways: Jury Nullification

  • Jury nullification happens when a jury in a criminal trial finds a defendant not guilty even though the evidence proved the defendant’s guilt beyond a reasonable doubt.
  • Jury nullification is based on the theory that the average citizen, when serving on a jury, should be able to override the laws passed by the government.
  • Juries have the absolute and unqualified legal right to reach any verdict they choose.
  • In the United States, it is illegal for a judge to direct a jury that it must deliver a guilty verdict.
  • Jurors cannot be punished for their verdict, even if they arrived at it improperly.
  • Not guilty verdicts resulting from jury nullification may not be overturned or appealed.

Definition

Juries perform two important functions in criminal trials. As the finders of fact, they are empowered to evaluate the evidence and credibility of witnesses. Potential jurors are then called upon to apply the law to those facts. The applicable law is explained to them by the trial judge in the form of jury instructions. Jurors swear an oath to follow those instructions and fulfill their duty impartially. Jury nullification is what happens when juries disregard that oath because they do not agree with the law.

The concept of jury nullification is based on the theory that the average citizen, when serving on a jury, should be able to override or nullify the laws passed by the legislative body. The jury's reasons may include the belief that the law itself is unjust, that the prosecution has misapplied the law in the defendant's case, that the punishment for breaking the law is unjustly harsh, or out of general frustrations with the government or the criminal justice system. Juries may also refuse to convict due to their personal beliefs or prejudices in favor of the defendant.

 Not Guilty vs. Innocent 

While the verdicts of “not guilty” and “innocent” in criminal trials are often thought to be synonymous, there is a major and important distinction between the two. 

In criminal courts, a verdict of not guilty means that a defendant has been found not to have committed a crime as charged by the prosecution or judge beyond a reasonable doubt. A verdict of not guilty doesn’t mean that the accused is innocent. It means that the government did not meet its legal burden of proof.

On the other hand, a verdict of “innocent” means that the defendant is completely absolved of guilt and found to possess no criminal liability. This is different from a not guilty verdict because it implies actual innocence, not just a lack of evidence against the accused.

The distinction between not guilty and innocent is important because it helps to protect the rights of defendants. It ensures that people are not wrongly convicted of crimes they did not commit and it reinforces the protective doctrine that people are considered innocent until proven guilty in a court of law.

Convictions Through Jury Nullification

Jury nullification may also occur when a jury convicts a defendant because it condemns the defendant or their actions, even though the evidence and testimony presented at trial clearly showed that the defendant technically broke no law. For example, all-white juries in the post-Civil War Reconstruction Era South routinely convicted Black defendants accused of sex crimes against white women despite minimal evidence of their guilt. Local personal prejudice for or against a defendant is one of the main reasons prosecutors sometimes seek a 6th Amendment “change of venue,” or the relocation of the trial.

Nullification verdicts are possible because juries in the United States have the absolute and unqualified right to reach any verdict they choose, although they are rarely informed of this right at any point during the trial process.

Jury nullification has occurred since the beginning of the U.S. trial system and persists because of three long-accepted loopholes in the legal system that are designed to protect the integrity of the jury process:

  • The law limits the ability of trial judges or attorneys to inquire into jurors’ motivations in reaching their verdict.
  • Jurors cannot be punished for their verdict, even if they arrived at it improperly.
  • A defendant acquitted because of jury nullification cannot be tried again for the same crime because of the constitutional prohibition against double jeopardy. However, a guilty verdict reached as a result of jury nullification can be overturned through the appeal process or voided by a judge in some jurisdictions.

Nullification can also occur in civil trials involving lawsuits. Unlike in criminal trials, however, if the jury delivers a verdict that is clearly at odds with the evidence, the judge can issue a judgment contrary to the verdict, or order a new trial.

When jurors in capital cases, such as murder trials, convict the defendant and find in the sentencing phase of the trial that the necessary conditions have been met to impose the death penalty, but choose instead to sentence them to life without parole, this may also be referred to as jury nullification.

In the modern era, jury nullification is most common in drug cases, where some jurors refuse to convict on drug possession charges either because they believe in legalization or they feel that the drug laws discriminate against certain protected groups or classes.

Other terms that may be used in place of jury nullification include conscientious acquittal, juror veto, or jury pardon.

Effects of Jury Nullification

A jury’s verdict that is clearly contrary to the evidence and the letter of the law—jury nullification—pertains only to the case before the court in that particular trial. It in no way affects similar future cases, nor does it serve as grounds for appeals in future cases. However, a consistent pattern of acquittals for prosecutions of a certain offense can have the “de facto” or practical effect of invalidating a law. For example, the pattern of jury nullification in alcohol prosecutions contributed to the adoption of the 21st Amendment, which repealed Prohibition in 1933.

Hung Juries

In a somewhat more subtle form of jury nullification, a few jurors, or in most cases only one juror, can hang the jury by continuing to vote for a not guilty verdict even though they believe the defendant broke the law. In most criminal cases, jurors are required to reach a unanimous verdict. 

When a jury cannot unanimously agree on a verdict of either guilty or not guilty, the result is a hung jury. When it becomes clear that further jury deliberation will be unproductive, the judge will declare a mistrial. While the prosecution may or may not choose to retry the case in the future, the law has at least been nullified in the trial at hand. When these kinds of rejections of enforcement of laws stack up over time, those laws become unenforceable.

Jury Nullification in Theory and Practice

A trial by jury is guaranteed to all persons accused of a crime by the United States Constitution. The jury is to be made up of citizens from all walks of life, and there are no special skills or training required. Typically, all that is needed to qualify for jury service is U.S. citizenship, age of majority (18 or older), residence in the particular judicial district for a certain period, proficiency in the English language, and a lack of disqualifying mental or physical conditions. In addition, judges and lawyers attempt to exclude potential jurors who profess to have knowledge of the case at hand or prejudices that might make it difficult to agree to a verdict. For example, prosecutors in a murder trial often move to excuse potential jurors who express a moral objection to the death penalty.

Scales of Justice
Scales of Justice.

Witthaya Prasongsin / Getty Images

Serving on a jury is a hallmark of the American justice system and a cornerstone of American democracy and a true expression of patriotism. The importance of juries in the American legal system arises from the colonial-era distrust of English judges. The authors of the Constitution believed that the common man could more fairly apply the law than a judge appointed by the Crown.

Jury nullification is inherently undemocratic, even if it is morally justified in a particular case. Sometimes, nullification is a tool that juries use as an extreme form of direct democracy to set aside a law they believe is immoral or wrongly applied to the accused.

For example, the pre-Civil War Fugitive Slave Act of 1850 compelled citizens of all states to assist law enforcement with the apprehension of suspected runaway enslaved persons. The law imposed large fines on anyone who aided an enslaved person in an escape, even by simply giving the person food or shelter. Abolitionists used the jury system to voice their protest by refusing to convict defendants in these cases and thereby nullifying the law on moral grounds. While the law continued to exist on the books, it became increasingly difficult to enforce.

Another variation of jury nullification identified by former prosecutor Paul Butler as “jury nullification 2.0,” refers to the case of Touray Cornell, a Missoula, Montana man charged with possession of 1/16th of an ounce of marijuana in a county that had passed a citizen ballot initiative instructing law enforcement to make marijuana enforcement their lowest priority. Of 27 potential jurors questioned during the jury selection process, only five said they would vote to convict a person of possession of such a small amount of marijuana. Doubtful that it would be possible to seat a jury, the judge and the lawyers in the case worked out an “Alford plea”—a guilty plea whereby a defendant does not admit to the criminal act and asserts innocence, but admits that the evidence presented by the prosecution would be likely to persuade a jury to find the defendant guilty beyond a reasonable doubt.

In some cases, a jury might refuse to convict a defendant out of concern for the consequences or an unwillingness to see a minimum sentence imposed. While some argue that allowing jury nullification is a weakness in the criminal justice system, others say the human element shows the system is working as intended—that it is more likely to acquit the guilty than to convict the innocent.

The first and perhaps most famous jury nullification case in America is the trial of John Peter Zenger. In 1735, during the early years of colonial dissatisfaction with British rule, Zenger was charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Although Zenger had admitted printing the alleged libels, the jury nonetheless returned a “not guilty” verdict. 

During the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. More recent examples of jury nullification might include acquittals of so-called "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.

The Legality of Jury Nullification

Jury nullification is legal in the United States and many other countries. In the United States, it is illegal for a judge to direct a jury that it must deliver a guilty verdict, jurors cannot be punished for their verdicts whatever their reasons may be, and a jury’s verdict of not guilty may not be overturned or appealed by the prosecution.

In the 5-4 majority decision in the 1895 case of Sparf and Hansen v. United States, written by Justice John Marshall Harlan, the U.S. Supreme Court held that a trial judge has no responsibility to inform the jury of its right to nullify laws. Often cited, Sparf has led United States judges to commonly penalize anyone who attempts to present legal arguments regarding nullification to jurors and to declare a mistrial if such argument has been presented to them. . In some states, however, jurors are likely to be struck from the panel if they refuse to accept as correct the rulings and instructions of the law as provided by the judge.

In the 1969 case of U.S. v. Moylan, the U.S. Fourth Circuit Court of Appeals 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.

“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge,” wrote the panel. “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.”

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

“…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.”

In 1988 the 1988 case of U.S. v. Krzyske, the jury asked the judge of the Sixth Circuit United States Court of Appeals 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 both inappropriate and untrue.

Sources

  • Duane, James. “Jury Nullification: The Top Secret Constitutional Right.” Litigation, 1969, https://constitution.org/1-Constitution/2ll/2ndschol/131jur.pdf.
  • Conrad, Clay S. “Jury Nullification: The Evolution of a Doctrine.” Cato Institute, November 7, 2013, ISBN-10: ‎1939709008.
  • von Trapp, Luke. “The People Vs. The State: Using Jury Nullification To Defeat Unjust Laws.” Independently published, May 22, 2018, ISBN-10: 1982954302.
  • Rubenstein, Arie M. “Verdicts of Conscience: Nullification and the Modern Jury Trial.” Columbia Law Review, 2006, https://ia601404.us.archive.org/28/items/verdicts-of-conscience-nullification-and-the-modern-jury-trial/Verdicts%20of%20Conscience%20-%20Nullification%20and%20the%20Modern%20Jury%20Trial.pdf.
  • Jonakait, Randolph N. “The American Jury System.” Yale University Press, 2006, ISBN 0-300-12463-5.
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Longley, Robert. "Jury Nullification: Definition and Examples." ThoughtCo, Sep. 28, 2022, thoughtco.com/jury-nullification-definition-and-examples-6504038. Longley, Robert. (2022, September 28). Jury Nullification: Definition and Examples. Retrieved from https://www.thoughtco.com/jury-nullification-definition-and-examples-6504038 Longley, Robert. "Jury Nullification: Definition and Examples." ThoughtCo. https://www.thoughtco.com/jury-nullification-definition-and-examples-6504038 (accessed November 29, 2022).