Jury Nullification: The Hidden Power

Jury Nullification: The Hidden Power

Police exercise discretion, such as occurs daily at the most basic level, in traffic enforcement situations. Should the offending vehicle be stopped and should a warning or citation be issued? Police may create investigative priorities with some matters being reduced to, at most, a written report. U.S. grand juries, at least in theory, have the prerogative to refuse to send a case for prosecution by returning a “no bill.” This discretion may screen out malicious or unwarranted prosecutions. Prosecutors exercise discretion in deciding what cases to pursue, what crime to charge, and how to conduct plea bargaining. This discretion is virtually unreviewable and makes the prosecutor a central figure in the U.S. criminal justice system. Judges may admit or exclude evidence, grant dismissals, or direct a verdict of acquittal.

However, if a petit juror or jury (trial jury) thinks that a law is unjust or a prosecution is inappropriate and refuses to apply the law, as instructed by the judge, the following is likely heard:

“Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecutor’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law.” [People v. Williams, California Supreme Court, 2001]

Jury nullification is a hidden power that advocates dare not argue for and juries should not openly assert. This comment provides a brief and incomplete educational introduction to jury nullification in the U.S. Always consult an experienced attorney in specific situations.

A number of famous historical cases, beyond addressing in this brief comment, involved jury nullifications in situations involving religious dissenters, journalists, taxation, fugitive slaves, protestors, and a variety of criminal cases. Some commentators argue that jury nullification is a counterweight to government oppression and also inserts mercy and compassion into the legal system. Others assert, with equal strength, that jury nullification invites racism and bigotry to prevail, ultimately resulting in anarchy.

History indicates that, depending upon the context and the social and political forces involved, jury nullification is either popular or unpopular.

In 1794 the U.S. Supreme Court considered the role of the jury in the context of debts due to citizens and British subjects [Georgia v. Brailsford]. Justice Jay reportedly stated, somewhat in passing, that juries may decide both questions of fact and law. This case involved the only jury trial conducted by the Supreme Court. Scholars have concluded that the jury in question consisted of merchant experts apparently functioning in an advisory role to the Court. Subsequent decisions questioned if an accurate recording of Justice Jay’s remarks occurred.

Thus, in 1895 Justice Harlan (the elder), in a case involving a jury’s question to the trial judge concerning a possible manslaughter verdict rather than murder, as instructed, questioned the accuracy of the reporting of Justice Jay’s remarks [Sparf and Hansen v. U.S.]. After considerable analysis, Justice Harlan concluded that the consistent legal rule has been that juries only determine the facts and judges announce the law. To separate the functions provides “safety” to the jury system and “the stability of public justice, as well as the security of private and personal rights.” His opinion has been widely cited for the proposition that a jury need not, and in fact may not, be told by a judge that they may disregard the law in reaching a verdict.

In this same 1895 decision, Justice Gray in dissent, with Justice Shiras concurring, wrote a lengthy analysis stating:

“It is our deep and settled conviction … that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of law or of fact, involved in that issue.”

The 1895 decision is the last word from the U.S. Supreme Court on the subject of jury nullification. Of course, numerous lower courts and state courts have addressed jury nullification.

The basic contemporary conventional role of the jury is to determine the facts (what happened). If a jury in a criminal case ignores the evidence presented or refuses to apply the law, for reasons of broader social concerns, to dispense mercy, or out of a sense of fairness and justice, this is typically contrary to the judge’s instructions to determine guilt when proven beyond a reasonable doubt.

Numerous cases admonish attorneys not to argue for jury nullification or for judges to mention or imply this possibility. Very rarely, it does occur either in court with judicial approval, or outside of the courtroom by advocacy groups. Still, if a jury returns a not guilty verdict, the prohibition against double jeopardy in the Fifth Amendment, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb,” prevents a retrial. Potential or actual jurors who state that they cannot or will not follow the law or a judge’s instructions are typically removed from considering the case. This is much less harsh than being imprisoned, as occurred in England in the 1600s.

In U.S. criminal trials the typical verdict is a “general verdict” of guilty or not guilty without a detailed explanation and with no answers to specific questions concerning the elements of the offense. This makes it easier for jury nullification to occur and, while suspected, remain hidden. This is especially true if there is contradictory witness testimony or other evidence, however slight, that would support a verdict of not guilty.

An unstated fear of juries exists. Juries lack appropriate legal expertise and are swayed by emotion. Juries embody numerous prejudices including those against minorities, the police, businesses, and especially insurance companies. All of these concerns, and more, float about, unspoken, when a spokesperson for a losing party makes the standard press conference comment: “we respect the verdict of the jury.”

Still, juries can be the conscience of the community. Virtually without exception, historically conviction of a crime required a finding of “mens rea” (guilty mind) in addition to the commission of a wrongful act (“actus reus”). Because this was so confusingly subjective, modern criminal codes frequently substitute words such as purposely, knowingly, recklessly, or negligently. All of these words still allow a jury a measure of flexibility.

Jury nullification may send a message to legislatures to change the existing law. Juries generally comment that they feel that they are treated as less than a full participant in the judicial process. They are removed from the courtroom or whispered conferences occur out of their hearing. This sense of exclusion especially occurs when after rendering a verdict, jurors learn from the media information that might have changed their views or provided a broader explanation for the conduct in question. Numerous examples might be provided.

There is a somewhat vague line between zealously representing a client and engaging in wrongful jury tampering and obstruction of justice. The famous O.J. Simpson murder trial, lasting some eleven months in 1995, is often cited as one in which the defense subtly invited jury nullification with the so-called “race card.”

Sometimes an allowable defense closing argument suggests to the jury that they need not find the defendant guilty, carefully phrased in the context of discussing the burden of proof. These forms of argument have to be creatively conducted to avoid a mistrial based upon “highly prejudicial” or “gross” misconduct. A prosecutor might make a Motion in Limine (“at the beginning”) in advance of the trial requesting the judge to find defense counsel in contempt of court for arguing for jury nullification.

Jury nullification may occur in civil (non-criminal) cases. This may be more difficult to recognize but might be associated with the determination of negligence and the dollar amount of damages awarded.

Jury nullification is a hidden power because no one is allowed discuss it in the courtroom before the jury. Additionally, when a jury deliberates, it is within their discretion to agree not to reveal what occurred in the jury room and jurors may refuse to grant interviews. Jury deliberation secrecy is considered foundational. Once a statement of misconduct is made by a juror, it is fair game for investigation.

There may be an increasingly reduced opportunity for jury nullification as the number of jury trials declines with plea bargains and specialized diversionary courts, such as, for example, Veterans Court, that provide mental health evaluation, substance abuse treatment, and other forms of specialized supervision. In the civil lawsuit arena there is widespread reliance on arbitration and other forms of alternative dispute resolution resulting in out-of-court settlements without a jury trial. A 2017 U.S. Supreme Court decision (7:1) affirmed the supremacy of the Federal Arbitration Act over a Kentucky state law that restricted the contractual waiver (giving up) of jury trials [Kindred Nursing Centers v. Clark].

Every individual in the judicial process brings her or his life experiences and moral sense to each situation. This is part of what it means to have a “jury of peers,” a representative group of fellow citizens, a right dating back to the Magna Carta of 1215, originally only available for members of the nobility. We can be thankful that this right exists for us commoners today. The human experience is more than the on or off switch of an electronic circuit. An unrelenting tyranny would exist if an unthinking electronic guilty or not guilty box controlled our lives.

Activists and community organizers have a repertoire of tactics to bring to bear the weight of public opinion when challenging injustices. Consider the well-known use of the sit-in demonstration. This is sometimes described as one example of community nullification. Hence, a little jury nullification, as history demonstrates, is a good thing.

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.

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