What’s the story on jury nullification?

Bricker replies:

Yes, sometimes, no, and no. But perhaps a bit more detail would help.

Jury nullification generally refers to a jury’s decision to acquit a defendant even though the jurors believe the accused to be factually guilty of the crime. This decision can arise from a desire for leniency or sympathy with the accused or from distaste for the particular law being enforced. Theoretically, the term could be applied to the reverse process, wherein jurors convict an unsympathetic defendant even though they are (or should be) convinced of his innocence.

A brief primer: In the modern judicial system, the jury’s role is to be a finder of fact. The jury weighs the credibility of witnesses and of stories told, bringing their experience and understanding to the jury box. Every trial has contested issues of fact: the prosecution says something happened and the accused says something else happened. It’s the job of the jury to sort out who is telling the truth about what, and agree upon a set of facts. In contrast, the judge’s job is to rule on questions of law. For example, the law may criminalize the use of a stolen credit card. So if Jim is accused of stealing and using a prepaid gift card with a Visa logo on it, the jury must decide if it believes Jim, who denies everything, or the store clerk, who’s sure Jim was the culprit. Those are questions of fact. The judge must determine if a gift card qualifies as a credit card within the meaning of the law.

The legitimacy of laws governing gift cards hasn’t provoked much debate, but other areas of the law are more controversial, and that’s where jury nullification comes in. Fans of jury nullification often make John Peter Zenger their poster child. Zenger, a colonial-era newspaper publisher, had printed several articles highly critical of New York colonial governor William Cosby. Cosby retaliated by having Zenger arrested for seditious libel and throwing him in jail. Zenger was defended at trial by one Andrew Hamilton, who appealed directly to the jury to consider both the law and the facts. The jury acquitted, “nullifying” the law against seditious libel by refusing to convict even though the facts clearly established guilt.

During the Civil War, the Fugitive Slave Act mandated the return of runaway slaves to their owners and prescribed penalties for those who didn’t comply, but juries often refused to convict those accused of this crime; in the decades that followed, all-white juries in the south routinely refused to convict white defendants accused of acts of violence against blacks. Today, some people opposed to drug laws urge that jurors refuse to convict anyone of marijuana-related offenses, no matter what the evidence may show, as a way of nullifying the laws criminalizing marijuana.

With this background established, let us endeavor to answer your questions. Is it legal for juries to ignore the law and substitute their own judgment? Yes, in the sense that there can be no criminal penalty for doing so and no reversal of a jury’s decision to acquit. Once a verdict is delivered, the double jeopardy clause protects the accused from reprosecution even if the jury’s verdict was a result of nullification. And a juror who steadfastly maintains that he simply wasn’t convinced by the evidence cannot be accused of any wrongdoing, no matter how thin his story may be. So while ignoring the law is not what the jury is supposed to do, the practical fact is that jurors cannot be stopped from doing it. In that sense, it’s legal.

Parenthetically, we should note that potential jurors are typically subject to questioning before being chosen for a jury, in a process called voir dire. A juror who can be shown to have lied during this process, perhaps by concealing his views about the laws at issue, can be subsequently charged with a crime, although it won’t affect the verdict rendered in the original case. Even then, it can be an uphill climb for the prosecution, as we learn from the case of Laura Kriho, selected to sit on a Colorado jury in 1996. The defendant was accused of drug possession, and in voir dire Kriho did not mention her own previous conviction on possession charges; she also failed to disclose her membership in something called the Boulder Hemp Initiative Project, a group supporting the legalization of marijuana in Colorado. During jury deliberations, Kriho was the lone holdout for acquittal. She tried to persuade her fellow jurors that drug cases should be handled by the family and community, not by the courts, and that the jury had the right to create new law and to refuse to convict. Ultimately the judge declared a mistrial. After other jurors reported Kriho’s conduct to the judge, she was charged with contempt of court and found guilty. A court of appeals overturned this verdict, finding that the questions posed to Kriho were not specific enough to support a charge of contempt. The appellate judges did opine, however, that “… in certain narrow circumstances, a juror can be found in contempt for the failure to disclose during voir dire information asked for with sufficient specificity.…”

Can the judge override the jury’s decision? Sometimes. If the jury’s decision is to convict in spite of insufficient evidence, the judge may direct a verdict of acquittal and override the jury. But the reverse is not: if the jury acquits, the judge cannot reverse the acquittal.

Would mentioning that you know about jury nullification immediately disqualify you as a juror? Not technically, no. But it probably wouldn’t help you get seated. The court is entitled to know if you can follow its instructions with respect to the law, and either side can ask that you be dismissed for cause if you cannot. Indeed, if you cannot, the judge can dismiss you sua sponte – on his own motion – even if neither side asks. Nonetheless, the mere mention of it is not grounds for per se disqualification.

Finally, you ask, “If it’s legal, aren’t judges required to let a potential juror know about it?” A resounding no. Remember, the practice is legal only in the sense that the jury’s verdict is untouchable, and a juror who simply claims he is unconvinced by the evidence cannot be punished for refusing to convict. There is no shortage of case law, however, that upholds the power of judges to refuse to let lawyers argue nullification or emphasize to the jury that they have this power. The Supreme Court said as much in the 1895 case of Sparf and Hansen v. U.S., 156 U.S. 51:

The ultimate problem with jury nullification is that it’s a great idea when the law is unjust and a terrible idea when the law is just. You may regard the drug laws as unjust, for example, but those Mississippi juries that gave a pass to KKK lynchers had the same ideas about the laws they were nullifying. If our system of self-governance is to mean anything, it should be that similarly situated defendants are judged similarly. If you want to change the law, do it at the ballot box, not in the jury room.

Bricker

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