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Jury Nullification: Agreeing to Disagree

Sahith Mocharla

Edited by Sandi Perez, Colin Crawford, and Vedanth Ramabhadran

Every trial with a jury fundamentally asks two questions, first a verdict of guilt based on the law as written; however, every trial also asks its juries to consider the applicability and justice of the law. The jury hears the facts of the case, hears the law as interpreted by the prosecution and the defense, and offers a collective societal remark: the law is applicable and ought to be upheld. A term referencing the ability of the jury to agree that the law was violated, but the defendant be adjudged to be innocent, jury nullification is the extreme of that power to interpret. Due process assumes two options, guilty or not guilty, but a trial with jury nullification can often offer a third. Jury nullification is a jury’s deliberate rejection of evidence and a refusal to apply the law. [1]

By rejecting the premise of a law, a jury gains the power to establish legal precedents, reflect social consciousness, or even circumstantial vagaries. In one of the earliest examples of jury nullification in the United States, John Peter Zenger, a New York journalist, was charged with seditious libel for criticizing the colonial governor. Zenger’s attorney argued that the truth of Zenger’s publishings – which criticized the government – should not be punished. The jury acquitted him, despite his actions violating English common law, setting a precedent for freedom of the press.[2] The role of jury nullification in society then is a tool for the citizens, one for them to singularly check back against the established legal framework arguing not for the letter of the law, but for its spirit.

The existence of jury nullification has been split on a state-by-state level, with nearly half the country (24 states) formally permitting the practice.[3] Although seemingly sound, jury nullification allows for the law itself to be misapplied, with critics asserting its existence fundamentally undermines the rule of law and the sanctity of the court. On a federal level however, the doctrine is without codification, leaving claims of its legality to be spurious at best.

Jury nullification empowers the independence of jurors, allowing them to make decisions based on their own conscience and judgment (as enshrined in the 6th Amendment).[4] Jurors follow common law tradition, wherein juries protest and nullify law which they deem as socially unjust, such as northern juries nullifying the Fugitive Slave Acts’ application by acquitting northerners who harbored slaves. Furthermore, the Declaration of Independence validates nullification in asserting that the government’s legitimacy is derived from the “consent of the governed.”[5] A law without the consent of the people is arguably an illegitimate law. Despite these overarching principles, judges often instruct jurors to apply the law as it stands and reprimand attorneys who advocate for jury nullification. However, judges cannot overturn a jury's decision, regardless of evidence, as upheld by Sullivan v. Louisiana, wherein a jury sentenced Sullivan to death for his role in a murder. (1993).[6] Sullivan contended that an erroneous definition of reasonable doubt had been given to the jury, thereby nullifying his conviction; however, The Court agreed that the judge did not have the ability to overrule the jury's ruling despite this violation as it did not affect the result beyond reasonable doubt. This ruling reaffirmed what United States v. Spock had defined the juries power as “to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court.”[7] Jury nullification, in the broadest sense, is constitutional in that there are no laws which prohibit it (the nuances of its application and the regulation of the 6th amendment nearly prevent a ban); however, on a principle level its existence begs more questions.

The arguments for jury nullification on principle are robust, yet its greatest argument might be what it represents: an ownership of the legal system and a grasp of civic duty, something declining in the modern United States. Through the application of jury nullification, social developments and social movements – yet to be codified – can be preserved and protected; this is supremely impactful for marginalized communities and groups who would otherwise have been left to the mercy of a legal system which hadn’t yet caught up to society. The Alien and Sedition Act (1798) was nullified numerous times in the early 1800s and the Prohibition Era of the 1930s had many jurors apply this practice. Furthermore, even murderers have been acquitted on the basis of jury nullification, with Dr. Jack Kevorkian “Dr. Death” in People v. Kevorkian being acquitted multiple times through nullification. 

Kevorkian’s case is representative of the power and pitfalls of jury nullification; proponents argue his application of physician-assisted suicide was merciful and therefore ought not be persecuted, while opponents argued simply that he violated the law and was guilty of murders. Kevorkian’s use of euthanasia and subsequent acquittals sparked a wave of legitimizing the practice in the late 1990s, leading to two federal appeals courts in the state of Michigan to strike down state laws banning assisted suicide.[8] Although Kevorkian was unquestionably guilty of violating the law, his actions were seen as public services. The law itself was seen as unjust in this instance leading to further legislation being passed to uphold the social ruling as seen in Michigan House Bill 5474 and Senate Bill 200 (2-3-98). Public Act 270 called for the assisted suicide ban and criminal provisions to expire six months after the commission made its recommendations to the legislature under the relevant portion of the act.

However, despite the progress brought by the would-be murderer Kevorkian through nullification, the practice is not without fault. Jury nullification, in its worst scenario(s) can invoke the tyranny of the majority, suppressing protestors who advocate for movements which are not widely held or even allow for the power of external influences to sway decisions. For example, many feel that O.J. Simpson’s acquittal in People v. Simpson was due to juror sympathy; O.J. was a football star in college and the NFL who’s very celebrity seemed to transcend culture, therefore, despite strong evidence in his trial for the murder of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman in favor of his guilt, he was acquitted. 

Given the absence of clear legislation for jury nullification, it becomes necessary for states to provide clarity and to formalize jury nullification on the federal level. Jurors ought to be informed of their full powers and capabilities – including their right to nullify – in order to protect the principles of common law and the establishment of social precedent. Common law dictates the protection of this practice and attorneys should be allowed to advocate for jury nullification at trial, empowering juries to make decisions not solely based on legal violations, rather upon whether the law itself should be applied. Through this framework, individual civilians take responsibility for the law and its application. 

Jury nullification represents the synchronization of constitutional principles, including the independence of a jury and the establishment of a jury’s role as the final determination of guilt. Secondly, it demonstrates the importance of common law and the derivation of legal precedent, allowing people to shift the landscape of legislation. As a democratic power, nullification may be misused, yet that risk does not justify revoking its potential; America’s existence as a democratic nation is built upon its people and principles, not ‘infallible’ laws. Nullification supplies an integral role in empowering justice and allowing the voice of the people to be heard.

 

[1]Jury Nullification, Cornell Law School Legal Information Institute (Oct. 2022), https://www.law.cornell.edu/wex/jury_nullification.

 [4]U.S. Const. amend. VI. 

[5]Edwin Meese III, The Meaning Of The Constitution, The Heritage Foundation (Sept. 16, 2009), https://www.heritage.org/political-process/report/the-meaning-the-constitution.

[6]Sullivan v. Louisiana, 508 U.S. 275 (1993).

[7]United States v. Spock, 416 F.2d 165 (1st Cir. 1969).

[8]Edward Walsh, Michigan Jury Acquits Kevorkian, The Washington Post (May 15, 1996), https://www.washingtonpost.com/archive/politics/1996/05/15/michigan-jury-acquits-kevorkian/15d4455f-c836-471c-9ed3-386ef0a1e2ea/#



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