In a fascinating recent episode of the podcast Radiolab, the show takes up the topic of jury nullification. It begins with the story of a woman, Laura Kriho, who, while serving as a juror, was horrified to learn of the lengthy sentence associated with the crime before the jury (possession of methamphetamine). She told the other jurors that even if they believed the prosecution had proved the defendant’s guilt beyond a reasonable doubt (a belief which she did not share), they could acquit for any reason, including the unduly harsh sentence that would follow a conviction. One of the other jurors wrote a note to the judge informing on Kriho, and the latter was subsequently charged with and convicted of contempt of court for her actions, for intentionally serving on a jury with the intent to obstruct justice. This sort of punitive response to an attempt at jury nullification is highly unusual (according to the show, it has not happened in over 300 years), but it highlights the fact that jury nullification is not exactly permissible, even though it is a power that jurors have. In this column, I will consider how we ought to think about jury nullification, a power that some view as a right and that others regard as a step toward anarchy.
What Is Jury Nullification?
Jury nullification occurs when a jury is convinced beyond a reasonable doubt of the guilt of a defendant in a criminal case but nonetheless votes to acquit him or her of the charges. A jury could also do the opposite—could vote to convict someone even though it is not convinced of his or her guilt. However, in the latter case, if the evidence does not support a conviction, the judge can direct a verdict of acquittal, notwithstanding the jury’s contrary decision. In the first case, by contrast, when the jury acquits against the evidence, there is nothing that the judge can do after the verdict is in. There is no power in judges to direct a verdict of conviction. The jury trial right means that the jury’s verdict of acquittal stands, no matter how contrary to the evidence. One purpose of this asymmetry, at least in theory, is to avoid empowering potentially biased officials to unjustly convict defendants who have correctly been deemed not guilty by a jury of their peers.
It is not obvious that the asymmetry is a good thing. If the evidence does not support an acquittal, perhaps a judge should be able to direct a verdict of conviction. I recall that after the O.J. Simpson acquittal was announced, a relative of mine asked whether the judge could direct a verdict of conviction against Simpson. I had to say no. And in fact, regardless of whether the jury is sincerely convinced of the defendant’s guilt or not, it seems somewhat troubling that a verdict that is directly controverted by overwhelming evidence in the case can nonetheless stand, just because a jury made the decision. Shouldn’t the facts matter?
This is part of the argument against nullification. The idea is that jurors have a job to do—to determine whether the facts are as one side portrays them or whether they are as the other side portrays them. When the jury has obviously not done its job—when the evidence points to only one result, and that result is not what the jury reached—it seems only fair that some official person can step in and right the wrong. Otherwise, juries become a law unto themselves, nullifying the legal rules that say that when the prosecution proves guilt beyond a reasonable doubt, the defendant must be convicted.
When Is Jury Nullification Appropriate?
There are times, however, when most people would acknowledge that jury nullification feels “right.” When a law is patently unjust, and prosecutors are nonetheless trying defendants for violating that law, nullification provides an escape hatch so that there need not be an unjust conviction.
One example of this is when juries used to nullify in prosecutions of people who were violating the fugitive slave law. Such nullifications were right and just, because they spared people who were helping slaves gain their freedom from being criminally punished for heroic actions.
Another situation in which nullification will strike many people as a positive good is when a person is prosecuted for violating a generally reasonable law that, in the particular case, would lead to unjust results. A person with AIDS might need marijuana to alleviate his nausea so that he can eat and stop wasting away, and his grandmother might grow marijuana for that purpose. One might believe that the law against possession or cultivation of marijuana is generally sound, but punishing the grandmother in this case seems unjust because she is saving her grandson’s life. If she were to be prosecuted for her actions, nullification would seem like a good thing, sparing her an unjust penalty for doing something positive.
Note that in both of these examples, the government is doing something unjust—either enforcing a bad law or enforcing an arguably reasonable law against someone whose conduct is beyond reproach. In such cases, the jury serves as the conscience of the community by nullifying and preventing an injustice from being done. One might say that the power to prosecute people for violating the fugitive slave law or for cultivating marijuana to save a grandson’s life is a wrongful power, and the jury’s ability to nullify allows “the people” to put a stop to the exercise of that wrongful power.
When Is Nullification Problematic?
In many cases, though, nullification will strike most of us as an abuse of the power of the jury to acquit a defendant in a criminal action. Such cases include those in which the law is just and the defendant is plainly guilty, but the jury happens, perhaps for reasons of racial or gender bias, to disagree with the law.
One example that came up on the Radiolab podcast is date rape. It is very difficult to get a conviction in a date rape case, despite the fact that date rape is a serious crime that devastates the lives of its victims. Juries may focus on what the victim was wearing or how attractive she is or her decision to go on a date with the defendant, and ignore the fact that her testimony is credible and proves that a rape in fact occurred. To nullify in such cases, which jurors apparently do with some regularity, is to rebel against a just law because in the jurors’ opinion, the victim “asked for it.” Along similar lines, there was a time when it was very difficult for a prosecutor to get a conviction for the murder of an African American victim by a white defendant (that continues to be true in police shooting cases). Even if the evidence plainly supported a conviction, racist juries would acquit the defendant in defiance of a just law whose application they did not like.
Less offensive but also problematic are acquittals that result from juries’ feelings about the defendant. When I served for a month as a grand juror in New York City, I remember at least one case in which the grand jury refused to indict a man (a rare thing in itself), and the man’s disarming and sweet personality clearly played a role. At one point, when the accused was about to testify, a grand juror sitting at the front of the room encouraged him to fix his shirt, as though he were her son rather than an accused criminal whose conduct she was assessing. If jurors either like the defendant very much or dislike the victim in a particular case, they could choose to bring back an acquittal notwithstanding the incontrovertible evidence of guilt. This is part of why defense attorneys often try to portray a victim in very negative and unappealing ways, so that jurors might conclude that he or she “needed killing” or at least does not deserve to have the perpetrator punished.
The Hard Cases
It is easy to defend nullification when a law or its application is unjust, and it is likewise easy to condemn nullification when it reflects misogyny or racism or a personal reaction to the parties to the case. But are there in-between situations? Paul Butler, a law professor at Georgetown University has argued that nullification should be used by African American jurors when an African American defendant stands accused of a non-violent crime, as a way of reducing the racial disparity in convictions for such offenses. As I argued in a written response to a short version of Butler’s argument (both argument and response contained in Criminal Law Conversations), such a practice—if it became widespread—would discredit African American potential jurors being considered for a case and would do little to truly address the problem of disparate treatment, because the law and prosecutorial discretion would continue to operate the same way as they did before in most cases. I suggested that we might instead seek to change the law so that nonviolent acts (particularly drug offenses) are no longer criminal, a solution that wouldn’t rely on the happenstance of whether African American jurors who had signed onto Butler’s program happened to find their way onto a particular African American defendant’s jury.
When I heard that the woman in the Radiolab story was prosecuted for proposing nullification, I must admit that I was outraged by that. I have never liked nullification, but it seems to me that the jury trial right does reasonably entail the power to nullify. We should not be punishing jurors for understanding that they have that power, even if we prefer that they not exercise it. I do not regard nullification as a right, and I oppose the idea of telling jurors that they can nullify, as I explained here. I suppose this creates some arbitrariness, because many jurors will know of their power to nullify, while others will not. Nonetheless, I think we should seek to minimize the practice of nullification, because it seems more likely to be misused, as in date rape prosecutions, than justly used, as in fugitive slave law prosecutions.
I suppose this means that I think that for the most part, our criminal laws are just and, perhaps more importantly, justly applied. My hope (and maybe my expectation) is that if a law itself or its application in a particular case were unjust, then a prosecutor would refrain from prosecuting. Unlike jurors, prosecutors have an inherent discretion to decide to “nullify” by not prosecuting someone who is doing something right or who is violating an unjust law. I prefer to rely on the rule of law, which includes prosecutorial discretion, than to invite lay people with their own prejudices and faulty intuitions to refuse to convict when the evidence supports a conviction. This reflects the fact that I (tentatively) have more faith in lawmakers and the executive branch of government than I do in my lay peers. With President Trump in office, of course, this could change.
“I think that for the most part, our criminal laws are just and, perhaps more importantly, justly applied.”
Well, “the most part” is a qualifier, I guess. Drug laws, e.g., have a lot of problems. There has been a lot of writing on the injustices of the criminal justice system. Prosecution for suggesting nullification along suggests a bit of appropriate wariness. But, I’m wary of nullification too. The grand jury and trial juries having some power in sentencing matters would seem to be a possible way to address some of these issues.
If the judge has authority to change a case outcome where he feels that the jury is guilty of nullification, that would indicate that any verdict could be considered nullified if the judge did not agree with the outcome. The outcome would only serve if the jury agreed with the judge. I would say that having a jury trial would be worthless, the judge would or could become the jury. Judges are not infallible and that is the reason for a jury of peers. There are seated judges that are corrupt just as with any other group of people not to mention ones that just make honest mistakes. Less chance of mistake with a number on the jury.
It is a long time since I had an opportunity to read such an interesting article. Pleasure.
I’m a bit disturbed at the line where you have more faith in people who are like you (lawmakers and the executive branch, a significant proportion of whom are lawyers) than in your ‘lay peers’. That represents to me something you may want to examine harder. I personally am still outraged; if nullification represents a right juries unquestionably have, then to pursue and obtain a contempt conviction seems more to be petulance at having one’s judgment questioned than a reasoned response to breaking the law, especially if the law, as you say, permits it (and so the court basically had to manufacture an offense to charge the juror with). This story, albeit with limited facts in hand, does not give me reason to respect the court, to be sure. If it’s allowed, and is done, then swallow hard, pretend you respect said peers, and implement the jury’s decision. If it oughtn’t be allowed, then the same remedy you urge on others is available to you: change the law.
Here is a good defense of jury nullification: https://philpapers.org/rec/HUETDT
There is little doubt as to how our founding fathers and early jurists felt about jury nullification. It is also established precedent: (U.S. SUPREME COURT (State of Georgia v. Brailsford): “…it is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”)
THOMAS JEFFERSON (1789): 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.
JOHN ADAMS (1771): It’s not only ….(the juror’s) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.
JOHN JAY (1794): The jury has a right to judge both the law as well as the fact in controversy.
ALEXANDER HAMILTON (1804): Jurors should acquit even against the judge’s instruction….”if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong.”
SAMUEL CHASE (1804): The jury has the right to determine both the law and the facts.
OLIVER WENDELL HOLMES (1920): The jury has the power to bring a verdict in the teeth of both the law and the facts.
U.S. vs. DOUGHERTY (1972) [D.C. Circuit Court of Appeals]: The jury has….”unreviewable and irreversible power…to acquit in disregard of the instructions on the law given by the trial judge.”
BYRON WHITE (1975): The purpose of a jury is to guard against the exercise of arbitrary power–to make available the common sense judgement of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over
conditioned or biased response of a judge.
Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 155 (1968)): “A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.”
Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 156 (1968)): “Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.”
Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 156 (1968)): “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.”
Justice BYRON WHITE (Taylor v. Louisiana, 419 US 522, 530 (1975)): “The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”
Justice THURGOOD MARSHALL (Peters v. Kiff, 407 US 493, 502 (1972)): “Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well.”
Justice ROBERT H. JACKSON (Douglas v. Jeannette, 319 US 157, 182 (1943): “Civil liberties had their origin and must find their ultimate guaranty in the faith of the people.”
JOHN LOCKE (Second Treatise of Government): “Yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them….And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject.”
THOMAS JEFFERSON: “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
THOMAS JEFFERSON (1789): “The new Constitution has secured these [individual rights] in the Executive and Legislative departments: but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury.”
JOHN JAY (1st Chief Justice, U. S. Supreme Court, 1789): “The jury has a right to judge both the law as well as the fact in controversy.”
SAMUEL CHASE (Justice, U. S. Supreme Court and signer of the Declaration of Independence; in 1804): “The jury has the right to determine both the law and the facts.”
Justice OLIVER WENDELL HOLMES (Horning v. District of Columbia, 249 U.S. 596 (1920)): “The jury has the power to bring a verdict in the teeth of both law and fact.”
U.S. v. DOUGHERTY, 473 F.2d. 1113, 1139 (1972): “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge….”
U.S. SUPREME COURT (State of Georgia v. Brailsford, 3 DALL. 1,4): “…it is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”
Lord Chief Justice MATHEW HALE (2 Hale P C 312, 1665): “…it is the conscience of the jury that must pronounce the prisoner guilty or not guilty.”
Lord Chief Justice MATHEW HALE (2 Hale P C 312) (1665): “…it was impossible any matter of law could come in question till the matter of fact were settled and stated and agreed by the jury, and of such matter of fact they [the jury] were the only competent judges.”
SIR JOHN VAUGHAN, Lord Chief Justice (“Bushell’s Case, 124 Eng Reports 1006; Vaughan Reports 135, 1670): “…without a fact agreed, it is impossible for a judge or any other to know the law relating to the fact nor to direct [a verdict] concerning it. Hence it follows that the judge can never direct what the law is in any matter controverted.”
U.S. v. GAUDIN (S.Ct. 1995): in which SC ruled that juries are empowered to determine relevance and materiality.
LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): “Our American constitution have provided five…separate tribunals, to wit, representatives, senate, executive, jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. ”
LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): “The authority to judge what are the powers of the government, and what are the liberties of the people, must necessarily be vested in one or the other of the parties themselves–the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with.”
LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): “This preposterous doctrine, that “ignorance of the law excuses no one,” is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government.”
LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): “…there can be no legal right to resist the oppressions of the government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions….”
LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): “The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these–that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government.”
HGW (“NOT GUILTY!” 4/17/93): “The conscience of the jury is the yardstick of justice.”
HGW: “The jurors have the right to leave the courtroom with a clear conscience.”
Justice OLIVER WENDELL HOLMES JR. (Frank v. Mangum, 237 US 309, 347, 1915, not verified): “It is our duty to declare lynch law [to be] as little valid when practiced by a regularly drawn jury as when administered by one elected by a mob intent on death.”
Justice OLIVER WENDELL HOLMES, JR. (Frank v. Mangum, 237 US 309, 347 (1915)): “Mob law does not become due process of law by securing the assent of a terrorized jury.”
ARIZONA SUPREME COURT ? (Marston’s, Inc. v. Strand, 560 P.2d 778, 114 Ariz. 260): “Grand jury is [an] investigative body acting independently of either prosecutor or judge whose mission is to bring to trial those who may be guilty and clear the innocent.”
JOHN ADAMS (Second President of U.S.) (1771) (Quoted in Yale Law Journal 74 (1964): 173): “It is not only his right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Chief Justice John Jay in Georgia v. Brailsford, 3 U.S. 1 (1794):
“It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”
And then there are very good reasons why we should have jury nullification:
“Juries may focus on what the victim was wearing or how attractive she is or her decision to go on a date with the defendant, and ignore the fact that her testimony is credible and proves that a rape in fact occurred.”
So there’s no need for any collaborating evidence or witnesses, the victims testimony alone is credible proof that rape occurred? If yes then how do you reconcile the cases where the victim has at some later point recounted their testimony showing that they were not raped? I understand these are the exception but they have and do happen so how do you reconcile that with your statement that a victims testimony is proof that rape occurred?
I have no trust in prosecutors being just. Some have biases and are able to destroy whom they do not like.
There is an inconsistency in the author’s claims that there can be a just use and an unjust use of jury nullification, depending on if it were used against an unjust law, or a just law being applied unjustly. How are we to decide which laws are just and which are unjust? While I agree that the fugitive slave law was unjust, at that time the many Americans did not. Each individual may hold their own personal beliefs about what is just and what is not, and we must accept that jury nullification is always just or it is never just, we cannot have it both ways. Similarly, to say that jury nullification is justified when a Just law is being applied unjustly, as in the grandmother example above is also inconsistent. While you and I may believe that the grandmother is just in growing marijuana to save the life of her grandson who has AIDS, many Americans believe that growing marijuana is never justified, which makes determining justice arbitrary. Further, why would jury nullification be anymore justified for the grandmother than say someone selling drugs to put food on their table? Jury nullification is either always just or never just, any other way would be inconsistent with justice producing arbitrary results.