Jury Nullification: The Crazy Law You Can’t Talk About


If you ask the Court what jury nullification is, imply that you believe in jury nullification, or even mention jury nullification, then you’re almost guaranteed to get kicked out of jury duty.

What is jury nullification, you ask? Jury nullification is the act of a jury returning a Not Guilty verdict, despite believing that the Defendant is guilty beyond a reasonable doubt.

Jury nullification has a long and controversial history in the United States. While it may seem like an archaic legal concept, jury nullification is very much alive and well in today’s criminal justice system.

Even though you’re not allowed to talk about it, Appellate Courts have admitted that “jury nullification is a recognized aspect of our jury system.”

A brief history of jury nullification

Jury nullification has deep historical roots dating back to the earliest days of English common law. It played a pivotal role in the American colonies, where juries often refused to convict individuals charged with offenses they deemed unjust, such as violations of the Stamp Act. This resistance to oppressive laws ultimately contributed to the American Revolution.

The right to a trial by jury, and the potential for jury nullification, found a place in the U.S. Constitution, with the Sixth and Seventh Amendments guaranteeing the right to a jury trial in criminal and civil cases.

As a result, jury nullification became a powerful check on government authority, allowing jurors to act as a safeguard against unjust laws and prosecutions.

The role of jury nullification in modern times

While the historical context of jury nullification is well-established, its relevance in modern legal systems may be less apparent. However, jury nullification continues to play a significant role in the criminal justice process for several reasons:

  1. Moral Disagreement: Jurors may still hold strong moral or ethical objections to certain laws or prosecutions, leading them to nullify verdicts they find unjust. For example, in cases involving non-violent drug offenses, some jurors may believe that the crime doesn’t warrant prosecution to “send a message” to the Prosecution.
  2. Sympathy for Defendants: Jurors may sympathize with the defendant’s circumstances, such as cases involving desperate individuals driven to commit crimes due to economic hardship or personal struggles.
  3. Public Opinion: High-profile cases and social movements can influence jurors’ perceptions and decisions. Jurors may be more likely to nullify verdicts when they believe the broader public sentiment supports their actions.
  4. Prosecutorial Misconduct: In some cases, prosecutors may overcharge defendants or pursue charges that appear to be politically motivated. Jurors may use nullification as a means to curb prosecutorial overreach.

In fact, with the upcoming prosecution of former President Trump, there is a lot of public handwringing over the possibility that Trump may be acquitted as a result of jury nullification even if the government proves guilt beyond a reasonable doubt.

Only time will tell.

The use of jury nullification has led to legal debates and challenges. On one hand, some legal scholars argue that jury nullification is a fundamental right and an essential component of a democratic society. They contend that it allows jurors to act as a check on government power when laws are unjust or enforcement is excessive.

The legal landscape regarding jury nullification varies by jurisdiction. Some states have explicitly recognized the right of jurors to nullify verdicts, while others have taken measures to limit or discourage its use. For example:

  1. Explicit Recognition: Some states, such as New Hampshire, have passed legislation explicitly acknowledging a juror’s right to nullify and ensuring that judges inform juries of this right during trials.
  2. Limited Instruction: In contrast, other states may allow judges to provide limited instructions to jurors about their duty to apply the law as written, discouraging nullification. The Courts in these states have determined that a Defendant does not have a constitutional right to give the jury an instruction about nullification or to explicitly argue in favor of nullification.
  3. Prosecutorial Discretion: Prosecutors may use their discretion to decide whether to pursue charges when they anticipate potential nullification, which can influence the outcome of cases.

Jury nullification in American courts

Some recent and historical cases illustrate the role of jury nullification in American courts:

  1. Fugitive Slave Act Cases: In 1850, the U.S. passed the Fugitive Slave Act, which required the return of escaped slaves. Juries in Northern States would frequently engage in jury nullification to acquit those charged with harboring slaves.
  2. War on Drugs Cases: In the midst of the “War on Drugs,” there have been instances where juries acquitted defendants charged with minor drug offenses despite overwhelming evidence of guilt. Jurors in these cases may have been motivated by their belief that the laws were overly harsh or unjust.
  3. Jack Kevorkian aka “Dr. Death”: Dr. Kevorkian was a proponent of assisted “un-aliving” for people who suffered from terminal and debilitating illnesses. Juries acquitted him in three separate trials after hearing evidence related to the suffering that the victims in the case had endured and how Dr. Kevorkian sought to relieve that pain.

Because most courts have taken a very strict approach when it comes to even discussing jury nullification, it is likely that many jurors who vote to acquit are already actively engaged in nullification but refuse to admit it for fear of retribution.

Controversies and ethical dilemmas in jury nullification

The use of jury nullification raises complex ethical dilemmas. While some view it as a form of civil disobedience and a safeguard against injustice, others argue that it can undermine the rule of law and erode respect for the judicial system. Controversies surrounding jury nullification include:

  1. Inconsistent Verdicts: Critics argue that jury nullification can lead to inconsistent verdicts, making it difficult to predict case outcomes and potentially resulting in unequal justice.
  2. Potential for Abuse: There is concern that jury nullification could be abused in cases involving powerful defendants, like celebrities or politicians, allowing jurors to ignore clear evidence of guilt even in cases involving heinous crimes.
  3. Compromise of Legal System: Some argue that nullification compromises the legal system’s integrity, as jurors are sworn to apply the law and not engage in personal or moral judgments.

Opponents of jury nullification contend that juries should apply the law as written, leaving questions of legality to the courts and legislatures rather than in the hands of the citizens.

The 1st Amendment and public awareness

In recent years, jury nullification has gained renewed attention in high-profile cases, such as those involving activists and whistleblowers.

In 2010, Julian Heicklen was criminally prosecuted for jury tampering after distributing pamphlets outside of a Federal Courthouse on multiple occasions. The pamphlets informed people about jury nullification and told potential jurors that it just takes one strong-minded juror to “hang” the jury. A “hung jury” occurs when they are unable to reach a verdict and results in a mistrial.

Mr. Heicklen’s criminal charges were later dismissed on 1st Amendment grounds.

In 2015, former Pastor Keith Wood was handing out jury nullification pamphlets outside of a courthouse prior to the commencement of jury selection. The people he handed pamphlets to were summoned for jury duty, but had not yet been selected for service.

Mr. Wood was convicted of jury tampering, ironically by a jury. In 2020, the Michigan Supreme Court overturned the conviction after finding that the people summoned for jury duty, but not yet selected for service, were not “jurors” under the definition in the law who could be tampered with. The Court did not reach Mr. Wood’s constitutional arguments having overturned the conviction purely on statutory interpretation.

Personally, I wish that the Court had gone on to consider the constitutional implications rather than leaving that question open for future debate.

Where do we go from here?

Despite the controversies surrounding jury nullification, its existence and potential impact cannot be ignored.

In cases where jurors believe that the law or the prosecution’s actions are unjust, nullification can serve as a mechanism for change. In cases of power and influence, nullification can leave some people essentially untouchable.

It is essential for both legal professionals and the general public to engage in informed discussions about the role and limits of jury nullification in the modern legal landscape.

As society evolves, the role of jury nullification may continue to evolve as well. It is a concept deeply rooted in the principles of democracy and individual conscience, making it a topic of ongoing debate and scrutiny.

The challenge lies in finding a balance between respecting the rule of law and acknowledging the potential for jurors to act as a check against injustice in exceptional cases.

–Authored by Matthew L. Harris, Esq.,

 Matthew Harris Law, PLLC – Civil Litigation Division

1101 Broadway, Lubbock, Texas, 79401-3303

Tel: (806) 702-4852 | Fax: (800) 985-9479

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