JURY NULLIFICATION: EFFECTIVENESS IN THE CURRENT LEGAL FRAMEWORK

Jury

Undisputed Legal

The Constitution provides a trial by jury to all suspects. The jury is composed of ordinary citizens from all backgrounds with no specific experience or qualifications to participate other than becoming a U.S. resident who is at least eighteen years of age, remaining in the judicial district for a set amount of time (typically one year), being fluent in English, possessing no disqualifying psychiatric or physical disabilities, and not having a current or prior criminal conviction.

Jury service is an identifying feature of the US legal system and one of the pillars of democracy. It is interesting that juries traditionally have been able to disregard the rules for individual cases in particular situations where statutes are unfair and their enforcement is unjust. This phenomenon, occurring on a casewise basis, is known as jury nullification. 

[1.0] WHAT IS JURY NULLIFICATION

Jury nullification, also known as jury equity or a perverse verdict, usually happens when members of a criminal trial jury conclude that a convict is guilty but chose to acquit the defendant nevertheless. This could be because the jurors feel that the statute itself is unjust, that the prosecution has misconceived the law in the accused’s situation, or that the potential sentence for violating the law is too severe. Juries have also been known to acquit the convicted due to their own beliefs regarding the accused.

Nullification is not a component of formal law. However, it has been espoused the natural conclusion of the pre-existing legal doctrines wherein [A.] jurors cannot be prosecuted if they acquit a convict amid the prosecution proving the defendant’s guilt beyond reasonable doubt and [B.] a defendant convicted on a felony cannot be re-charged with the same suspected offense, double jeopardy being a procedural defense that prevents an accused person from being tried again on the same (or similar) charges following an acquittal in the same jurisdiction.

A jury ruling that does not abide by the statute’s spirit is only valid in the individual situation. However, if a sequence of acquittals occurs that regularly invalidates the statute, this will have the de facto consequence of invalidating the law. This trend could suggest popular approval for or opposition to an unfavorable legislative initiative. A jury can find anyone guilty even though no statute is violated. An appellate court may eventually reverse the verdict. Nullification may arise in cases of civil trials even. A consistent pattern of acquittals for prosecutions of a particular offense can ripple out into actively invalidating the statute itself.  In fact, the pattern of jury nullification in alcohol prosecutions contributed to the adoption of the 21stAmendment, which repealed Prohibition.

A jury is intended to be a first-hand authenticator of facts,  weighing the reliability of testimony and proof submitted at trial applied with the appropriate laws to render a decision. The jurors cannot replace the statute and are not empowered to make a new law. The difference of opinion with the law, concern for a suspect, sentiments towards a specific case, or distaste for the defendant does not diminish a jury’s obligation to obey the law and assess the defendant’s guilt or innocence.

Jury nullification happens when a jury reaches a verdict that is contrary to the spirit of the law because members of the jury wish to negate the law by [A.]  conflicting with the existing legal framework under which the defendant is prosecuted or [B.]  conclude that the legislation does not in itself extend to this issue. A conviction reached via nullification can be overturned on appeal or voided by a judge in some jurisdictions.

[2.0] NATURE OF JURY VILIFICATION AND INSTANCES WHERE IT OCCURS

Jury nullification occurs when jurors acquit a guilty defendant because they disagree with the statute itself. This was especially evident during Prohibition, wherein jurors who disagreed with stringent alcohol regulation regulations will sometimes acquit suspects found guilty of smuggling. 

However, nullification may also happen when a jury finds the accused guilty based on their disapproval of the defendant or their actions without actually having the force of the law behind them. Nullification proponents argue that strict interpretation of a statute that is not just per se violates the community’s moral conscience. This may be when illegal behavior appears justified, especially if the reasonable man test is applied to the same. 

Another instance wherein nullification is likely to occur in cases where the defendant was hampered by diminished or compromised capacity and was unable to comply with the law. In conjunction with these events, the intention and motivation behind the defendant’s behavior are likely to spur jury nullification, especially in the case of euthanasia or assisted suicide, where the jurors may see the behavior as justified or the penalty as unjustified.  

Jury nullification is also popular in drug trials where jurors acquit suspects in drug possession cases simply because they believe in legislation for legalizing some drugs or considering drug policies to discriminate towards some classes wrongly. The judiciary does not recognize the nullification power of the jury. Still, it is a tacit power recognized by some jurists, especially since the jury is provided some leeway in deciding cases. 

On the flip side, juror motives might not be propelled by altruism or justice alone. Favoritism is a major criticism of nullification, especially in areas that have race-driven strife. Juror vilification, wherein juries often return verdicts that turn a conviction where it is not warranted based on prejudiced community standards.  

Nullification through jury bias is also a major issue with the tacit practice of juror nullification. This is likely when the jury’s views have been influenced by information that they have been exposed to prior, which then persuades the verdict issued. It must be understood that since jury nullification takes place in so many different manners, it can occur both as a willful refusal to comply with the law or merely an unintentional failure to follow it. The bias of information goes by the latter premise, which occurs when jurors cannot dismiss evidence they have been exposed to even if it was later ruled as inadmissible. Prior media coverage can also bias the minds of the jury. Perhaps more insidiously, a prior criminal record is likely to cause an effect on the verdict of the case. 

[3.0] A FRAUGHT HISTORY OF JURY NULLIFICATION

In the landmark 1895 case of Sparf vs. the U.S., the US Supreme Court ruled in a five-four verdict that a trial judge has minimal obligation to notify the jury of the ability to nullify legislation. This ruling, frequently quoted, has contributed to a widespread procedure by United States judges to penalize an individual who seeks to make a nullification appeal to the jury and to order a mistrial whenever the argument is already submitted to them. In certain jurisdictions, jurors are liable to be struck by the jury during voir dire if they would not consent to recognize as correct the decisions and instructions of the law as issued by the judge.

Courts also proceeded to forbid the presentation of details about jury nullification. In a 1969 Fourth Circuit decision, U.S. v. Moylan, the Court reiterated the principle of jury nullification. Still, it retained the judiciary’s right in declining to authorize an instruction to the jury to this effect. In 1972, in United States v. Dougherty,  the United States Court of Appeals for the District of Columbia Circuit released a judgment identical to Moylan that affirmed the de facto power of a jury to nullify the statute but upheld the refusal of the defense’s possible to instruct the jury about the power to nullify.

In 1988, the Sixth Circuit affirmed that there is no valid jury nullification. In the U.S. v. Thomas case, the Second Circuit found that jurors should be excluded if there is proof that they plan to nullify the statute in question.

In 2017, the Ninth Circuit affirmed the jury’s first three sentences and found against the remaining one. The jury’s directions were, “You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.” Nevertheless, the Ninth Circuit deemed this guidance an ultimate innocent mistake and upheld the judgment 

[4.0] THE DISPUTED LEGALITY OF JURY NULLIFICATION

Jury nullification is entirely legal in many nations, including the United States. It is unconstitutional for a judge to compel a jury by declaring that it must render a guilty verdict.  It is unethical for a jury to be pressured to deliver a guilty verdict regardless of the motivating factors behind it. A jury’s verdict of not guilty cannot be reversed.

Misconceptions about whether or not jury nullification is legitimate often arise from misconceptions about the validity of jury trials and the laws of the United States itself. It must also be noted that outcry also emanates from nullification denouncers who wish to discontinue the practice. Often, this detraction has rendered strong statements to ensue, such as  “there is no such thing as valid jury nullification” or that to partake in jury nullification will break the juror’s oath.

These blunt and ostensibly sound comments are theoretically intended to dissuade potential jurors from using that maximum legal power in the courtroom that renders them the final arbiter in the courtroom. However, the power still lies in the hands of the jury.  Even cases with decisions adverse to jury nullification accept that jury nullification is a privilege that jurors possess, that they cannot be disciplined for using it, and that Not Guilty verdicts cannot be reversed even though arrived at by conscientious acquittal.

Advocates of jury nullification see the avoidance of unjust verdicts under the law to be a proper exercise of the juries’ authority and an example of why the juries are situated in that position of power. The Supreme Court has ruled that while the power of jury nullification exists, state courts and prosecutors must not inform jurors of this power. Consequently, while jury nullification subsists, judges often actively dissuade or forbid the mention of jury nullification. This has occurred on a large enough scale for lawmakers to actually quash the introduction of a jury nullification instruction in the state senate. The New Hampshire House Bill intended to be relative to a jury’s determination as to the applicability of law was quashed in 2016.

A question has therein arisen as to whether explicitly informing the juries about the power of nullification would cause said nullification to be used for avoidance of an unjust verdict rather than other less altruistic verdicts. Judges that have ruled against the nullification instruction postulate that the instruction’s effects could instead foster prejudice, juror bias, or stereotyping in the delivery of justice instead.  Accordingly, judges around the country have routinely forbidden any mention of jury nullification in the courtroom.

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Sources

1. Sparf v. the United States, 156 U.S. 51 (1895

Sparf v. the United States clarified several questions relating to federal criminal juries and federal courts’ duty when instructing them.

It is the duty of a jury to apply the law as given by the court to the facts of a case.

  1. A court may lay out the legal implications following from a set of facts, but it may not direct the jury to return a guilty verdict.
  2. Based on the evidence, a jury may convict a lesser offense whose elements are included in another offense.
  3. In a trial for a person accused of murder, if evidence does not support a conviction for a lesser offense, the court may instruct the jury to consider guilt only for the charged offenses. It is then the duty of the jury to do so.

2. U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969),

3. The Appeals Court ruled, by a 2–1 vote:

The fact that there is the widespread existence of the jury’s prerogative and approval of its existence as a “necessary counter to casehardened judges and arbitrary prosecutors” does not establish as an imperative that the judge must inform the jury of that power. On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception confines the lawless jury’s happening to the occasional instance that does not violate, and viewed as an exception may even enhance, the overall normative effect of the rule of law. Explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for ordered liberty that protects against anarchy as well as tyranny.

4. United States v. Dougherty, 473 F.2d 1113,

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