Void Where Prohibited: The Hidden Power of the American Jury

Hannah Ramos

Edited by Jordan Perlman, Mihir Gokhale, Judge Baskin, and Sahith Mocharla

In February 2003, Ed Rosenthal walked into a federal courtroom in San Francisco facing years in prison for cultivating what were deemed to be illegal marijuana plants. The evidence was overwhelming, and the jury swiftly convicted him since he had violated federal law by growing hundreds of plants beyond a reasonable doubt. Soon after the verdict, jurors would discover that Rosenthal had been growing the marijuana for medical use, which was protected under the 1996 California Compassionate Use Act. Adding insult to injury, the jurors discovered that, rather than Rosenthal’s defense team failing to disclose this information––a mistake––the judge had intentionally excluded it from the trial. What followed was an onslaught of outrage, regret, and public apologies formally addressed to Rosenthal by the jurors who decided his fate, despite being misled. The jurors felt betrayed and blindsided by a legal system that had concealed their ability to exercise one of their fundamental implied rights: jury nullification [1].

Jury nullification occurs when a jury acquits a defendant despite clear evidence of guilt, for a multitude of reasons, but most frequently if they believe the law itself is unjust or that applying it in the context of the case would create injustice. The jury’s verdict of “not guilty” is final, and prosecutors are unable to appeal an acquittal due to the Double Jeopardy Clause of the Fifth Amendment––which says that “nor shall any person be subject for the same offense to be twice put in jeopardy” [2]. Jury nullification remains a rare occurrence in practice, with advocacy organizations estimating it arises in approximately 3-4 percent of trials [3]. This makes jury nullification a form of unreviewable popular sovereignty within the criminal justice system.

  When the Founding Fathers designed the jury system, they envisioned it as the ultimate check against tyrannical laws, an understandable pursuit given their own (recent) experience with unjust tyranny. Alexander Hamilton coined jury trials as “the very palladium of free government,” while John Adams, or as Thomas Jefferson refers to him, the ‘Colossus of Independence,’ insisted that it is a juror’s “duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court” [4] [5]. In the colonial era, juries regularly exercised the right of jury nullification, most notably in the 1735 trial of John Peter Zenger. Zenger became a symbol for press freedom after jurors acquitted him of seditious libel, despite clear evidence he had violated the law because jurors believed the law itself was unjust [6]. The Founders’ deliberate choice to vest conviction power in a jury of peers reflected the belief that justice should never solely be reduced to compliance with the law. Instead, the more meaningful question was whether a person’s own community would recognize the prosecution as just, for moral legitimacy outweighs legal correctness.

Yet, today, if a defense attorney even so much as mentions the seemingly harmless phrase “jury nullification” in a courtroom, they risk being held in contempt of the court [7]. The Supreme Court has essentially created a system in which juries have the power to nullify unjust laws but no right to be told this power exists [8]. The Supreme Court’s distinction between “power” and “right” in jury nullification cases creates a fundamental contradiction in American criminal justice that threatens to undermine the democratic principles our Founding Fathers worked to institute. Namely, while we credit juries as the “conscience of the community,” we also systematically prevent them from exercising their conscience by barring attorneys from mentioning nullification and removing dissenting jurors mid-deliberation [9]. Our current system produces inconsistent outcomes, weakens public trust in democracy, and determines a person’s fate based on a distinction that does not hold up under scrutiny. Jury nullification serves as an essential constitutional function and should be explicitly acknowledged through limited jury instructions that provide guidance about its proper exercise.

Historically, juries have used nullification as a tool to both safeguard liberty and weaponize oppression. For example, prior to the Civil War, many Northern juries deemed the Fugitive Slave Act of 1850 an immoral law and refused to convict individuals charged with violating it [10]. At the same time, however, during Reconstruction and throughout the Jim Crow era, juries consisting of all-White Southerners utilized nullification to uphold White supremacy. These juries would regularly acquit White defendants who murdered Black victims, even in cases where there existed unreasonable doubt [11]. A double-edged sword, jury nullification demonstrates that “community conscience” can reflect community bias as readily as community wisdom.

One can understand the legal paradox of jury nullification by first understanding the 1895 Supreme Court case Sparf v. United States. Sailors Herman Sparf and Hans Hansen, charged with the murder of Maurice Fitzgerald, argued on appeal that juries possess the right to consider a lesser charge of manslaughter in the context of their case even if the judge believed the law required a murder conviction [12]. Nonetheless, the Supreme Court rejected this argument in a 5-4 decision. Justice John Marshall Harlan declared that while juries possess the power to disregard judicial instructions and acquit the defendant(s) despite the evidence presented, they have no right to be instructed about this ability to question the law [13].

The Court’s reasoning relied on two tenets. First, it argued that allowing juries to judge law would tamper with consistency. In a similar case United States v. Battiste (1835), Justice Joseph Story argued that  “the effect would be not only that the law itself would be most uncertain, from the different views which different juries might take of it, but in case of error there would be no remedy or redress by the injured party…” [14]. Second, the Court feared that explicitly informing juries of their nullification power would inevitably lead to arbitrary verdicts based on sympathy or bias, rather than on sheer facts [15].Yet, the Court’s perspective contains a striking contradiction. Justice Harlan explicitly acknowledged that “A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict” [16]. This admission reveals the Court’s understanding and even support of juries nullifying tyrannical laws in self-determined necessary circumstances, yet simultaneously insists they have no right to be told about this substantial power. The Sparf decision thus created a conflicting framework in which juries had a “meaningful power” that was arguably void since its existence was not allowed to be explained. This framework created a paradoxical system where nullification existed in theory but operated entirely by accident in practice, promoting precisely the kind of inconsistent, arbitrary justice that the majority claimed to prevent.

The Second Circuit’s decision in United States v. Thomas (1997) represents an even more aggressive federal approach to prevent nullification. This case involved a drug conspiracy with all of the defendants being Black. On the jury, “Juror No. 5,” who was the only Black person on the jury, consistently voted “not guilty” during deliberations. Through interviews with the judge, some jurors reported that they suspected Juror No. 5 favored acquittal because of racial kinship, while others stated that he justified his position based on insufficient evidence by saying he would only establish guilt “beyond a reasonable doubt” [17]. Ultimately, the court removed Juror No. 5 mid-deliberation, citing that he had based his refusal to convict on impermissible preconceived beliefs about the case. As a result, the Second Circuit challenged the conviction, arguing that the removal was improper because of the possibility that Juror No. 5 was simply unpersuaded by the presented evidence.The court’s reasoning, however, affirmed broad judicial authority over nullification. Judge Cabranes declared, “We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent” [18]. Thomas established that courts may remove jurors suspected of nullification only if the evidence is unambiguous, which results in jurors having to nullify silently to avoid removal when voicing concerns about unjust laws.

In United States v. Kleinman (2018), the Ninth Circuit addressed how far courts can go in suppressing the right to nullify. The defendant, Noah Kleinman, operated marjiuana dispensaries in California that he believed complied with state law. Protesters outside the courthouse carried signs urging jurors to nullify the case. The district court responded with an aggressive instruction to the jury stating, “...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” [19]. Although the court justified its anti-nullification instruction with the potential influence of the protestors, the Ninth Circuit found the instruction erroneous. The Circuit asserted that the lower court improperly implied jurors could face punishment and suggested that attempts to nullify would automatically be void. Despite the court’s admission to finding error, it affirmed the conviction as harmless, reinforcing the belief that under no circumstances was jury nullification a constitutional right [20]. Once again, the decision exposes contradictions laced with hypocrisy in the court's viewpoints. While criticizing the instruction as too coercive, the court, nonetheless, reaffirmed that judges have “the duty to forestall or prevent [nullification], whether by firm instruction or admonition” [21]. Based on this logic, it is difficult to decipher the fine line between ‘firm instruction’ and impermissible coercion, a complication that is further compounded by the fact that this same line shifts depending on judicial discretion.

United States v. Manzano (2019) demonstrated how prosecutors relentlessly fought to subdue nullifications. Yehudi Manzano faced child pornography charges carrying mandatory minimum sentences of fifteen and five years. His attorney sought to persuade jurors that applying these penalties to Manzano’s single, never-distributed video would be too “harsh” and constitute a “miscarriage of justice” [22]. The district court ruled conditionally that Manzano’s counsel could only make such arguments if evidence of mandatory minimums was properly admitted. In other words, they issued a very rare, tentative agreement that the defense attorney could argue for jury nullification. Soon after, however, prosecutors immediately sought mandamus, which refers to an extraordinary remedy, and demanded prohibition of any nullification-related arguments before the trial began. The Second Circuit granted relief, declaring that district courts must “forestall or prevent” jury nullification and possess no discretion to permit such arguments [23]. The defense objected, reasoning that no existing precedent was similar enough to Manzano’s case to conclusively determine whether limited nullification arguments should be permitted or prohibited. Furthermore, because the defense argued that the punishment was disproportionate to the extent of his crimes, they believed the question remained genuinely open. [24]. While this should not be interpreted as a defense of  Manzano’s actions, it is critical to acknowledge that the defense attorney’s ability to fully argue on behalf of their client is a fundamental component of a fair trial. By prohibiting nullification-related arguments before the trial even began, the higher court exercised an extraordinary degree of control over the proceedings, as the defense was silenced from making its case to the jurors.

Jury nullification is clearly a controversial matter with varied stances. At face value, jury nullification is a means in which governmental overreach and unjust laws are democratically checked. Evidently, in many cases when jurors refuse to convict a defendant despite overwhelming evidence, they are protecting citizens from laws that violate fundamental principles of justice by acting as “the consciences of the democratic community” [25]. Beyond this power lie three additional, fundamental protections.

I. Nullification is a defensive tool against unfair prosecution. As explained by the late United States district judge, Jack Bertrand Weinstein, jurors “help keep us insensitive to wrong, immoral, and unjust laws” [26]. The power becomes nothing short of a necessity when prosecutors abuse their discretion to the point that mandatory sentences produce unjustifiable outcomes. There are foundational systems of checks and balances in the United States. But without this check of nullification, individuals face punishment under laws the community may recognize as fundamentally unjust.

II. Secondly, nullification addresses what legislation simply cannot: the gap between technical legality and true justice. This sentiment is supported heavily by philosopher Michael Huemer, who argues that jurors face a moral obligation to acquit under the basis that “to knowingly convict a defendant under an unjust law is to knowingly cause the defendant to be punished under the law” [27]. This ultimately makes jurors complicit in causing seriously unjustifiable harm and ultimately no different than someone who knowingly delivers an innocent person to their prosecutors [28]. Huemer emphasizes the main point here––the juror’s role goes beyond the mechanical application of laws and more importantly requires critical judgement about whether punishment serves justice in each particular given case.

III. Finally, the democratic legitimacy of a jury is protected by the doctrine of nullification. A fine line exists that separates citizens from criminals, and this represents one of democracy’s most critical functions [29]. The very act of judges instructing juries that they must convict if elements are proven essentially strips away the power that makes juries meaningful in democratic institutions by enacting a restrictive barrier on free will. In its place creates a jury that is a mere rubber stamp for state prosecution, which is in direct contradiction to everything this nation is founded upon.

Despite the appeal of jury nullification as a check on unjust laws, scholars have raised serious objections that merit careful consideration. Cornell Law School Professor, Gary Simson, contends that nullification is fundamentally anti-democratic, reasoning that Congress is elected by the people, while a jury is “a collection of a dozen randomly selected individuals with no constituency but themselves” [30]. Juries are presumably more random and less representative of a community than an elected official, for example. Similarly, Illinois College of Law Professor Andrew D. Leipold raises structural concerns, arguing that nullification systems undermine the consistency and predictability that a functioning legal order requires and that unguided nullification creates more issues than it resolves [31].

However, both critiques rest on a particular interpretation of democratic legitimacy that specifically places institutional representation above popular conscience. While this may be a defensible position, it is crucial to recognize that it is not the only one. To elaborate, the jury system was created quite literally to interject human judgement and moral subjectivity into a legal process that can otherwise become indifferent to the people it governs. Many understandably view Congress as the authentic voice of the people, but they fail to recognize that Congress has historically been captured by special interests and has permitted many injustices to persist, such as the legality of slavery and the entrenchment of Jim Crow laws. Proponents of nullification argue that the Framers’ decision to include a jury trial for conviction of any federal crime in Article III reflected the understanding of a jury’s fundamental right to decide legal questions through its general verdict, which is an important feature of the constitutional balance of power [32]. To place a blind level of faith in a legislative system with a less than perfect historical record, while simultaneously questioning the judgement of twelve randomly selected citizens with diverse backgrounds, reflects a bias toward institutional authority over popular conscience and not necessarily an objective assessment of democratic validity.

On the matter of equal protection, Simson raises a unique argument regarding the fact that jury nullification has been weaponized to shield White defendants from accountability for crimes against Black victims. This is absolutely an undeniable harm, and it is important to acknowledge it to appropriately defend nullification hereafter.

Nonetheless, the argument is less about nullification itself and more about unguided nullification. The concern revolves around the absence of any framework for exercising it responsibly. By formally recognizing nullification and instructing juries on its appropriate use, this would demystify the system, allow jurors to accept responsibility for their verdicts, and clarify the function of juries to communities, all without dramatically increasing acquittals [33]. Explicitly instructing juries to reserve nullification for cases where enforcement of the law would produce a clear injustice preserves this essential power without inviting misuse, and to further raise the threshold, requiring unanimity for nullification is highly suggested––essentially proving beyond reasonable doubt that a conviction would miscarry justice.

The controversy surrounding jury nullification is attributed to its tension between democratic legitimacy and human conscience. Inequality and parochialism deserve genuine consideration when weighing the obvious pitfalls of the doctrine. The optimal route cannot be the elimination of the necessary check on power, but instead a reformation of its structure. A system in which nullification’s existence and appropriate boundaries—including demands of unanimity before it can be exercised—are explicitly acknowledged, would preserve its protective function without compromising the consistency of the rule of law. Emerging legal scholarship suggests that nullification shouldn’t be viewed as incompatible with the rule of law but as a mechanism that ensures an active role for the citizen in the ongoing construction of justice itself, which points to a future in which nullification is not suppressed, but accountable and transparent [34]. At its core, jury nullification reflects the same democratic logic that underlies judicial review and the principle that no institution should possess unchecked authority over justice. The jury is uniquely positioned to register when that law has drifted from the values it purports to serve; thus, to suppress this mechanism is to hollow democracy out. For law to be just, human judgement is an absolute necessity, but in the same way, human judgement without legal constraint becomes arbitrary and dangerous. The solution does not prioritize one over the other, but rather allows for both to hold true at once.

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[1] Bob Egelko, Jurors say they were duped / 4 of 12 wish they had heard pot defendant's medical defense, SFGATE, Feb. 5, 2003, https://www.sfgate.com/news/article/Jurors-say-they-were-duped-4-of-12-wish-they-2672700.php (last visited Feb. 17, 2026).

[2] U.S. Const. amend. V. 

[3] Examining Jury Nullification in Texas Criminal Cases, POBLENZ LAW, Nov. 14, 2024, https://www.poblenzlaw.com/blog/examining-jury-nullification-in-texas-criminal-cases (last visited Mar. 24, 2026).

[4] THE FEDERALIST No. 83 (Alexander Hamilton).

[5] Adams’ Diary Notes on the Right of Juries, FOUNDERS ONLINE, Feb. 12, 1771, https://founders.archives.gov/documents/Adams/05-01-02-0005-0005-0004 (last visited Feb. 17, 2026).

[6] Trial of John Peter Zenger, JACK MILLER CENTER, https://www.jackmillercenter.org/our-work/resources/trial-of-john-peter-zenger (last visited Feb. 17, 2026).

[7]  Examining Jury Nullification in Texas Criminal Cases, POBLENZ LAW, Nov. 14, 2024, https://www.poblenzlaw.com/blog/examining-jury-nullification-in-texas-criminal-cases (last visited Feb. 17, 2026).

[8] See [7]

[9] A Historical Look at the Power of Jury Independence, CATO INSTITUTE, Jan./Feb. 2014, https://www.cato.org/policy-report/january/february-2014/historical-look-power-jury-independence (last visited Mar. 24, 2026).

[10]  Lawson Wright, Originalism and Jury Nullification in America: A Legal Basis for the Restoration of a Lost Right, 3 The Princeton Legal Journal 1 (Spring 2024), https://legaljournal.princeton.edu/originalism-and-jury-nullification-in-america-a-legal-basis-for-the-restoration-of-a-lost-right/ (last visited Feb. 17, 2026).

[11] James Forman, Jr., Juries and Race in the Nineteenth Century, YALE LAW JOURNAL (Dec. 10, 2003), https://yalelawjournal.org/pdf/317_tz25aguk.pdf.

[12] Sparf and Hansen v. United States, 156 U.S. 51 (1895). 

[13] Jordan Paul, How Courts Robbed Juries of a Powerful Tool for Doing Justice, BALLS AND STRIKES, Oct. 7, 2021, https://ballsandstrikes.org/legal-culture/how-courts-robbed-juries-of-a-powerful-tool-for-doing-justice/ (last visited Feb. 17, 2026).

[14] See [12]

[15] See [12]

[16] See [12]

[17] United States v. Thomas, 362 U.S. 58 (1960). 

[18] United States v. Thomas, 116 F.3d 606 (2d Cir. 1997).

[19] United States v. Kleinman, No. 14-50585 (9th Cir. 2018). 

[20] See [19]

[21] See [19]

[22]  United States v. Manzano, No. 18-3430 (2d Cir. 2019). 

[23] Brian Spears, Jury Nullification: What’s Left After United States v. Manzano, SPEARS MANNING MARTINI, Jan. 3, 2020, https://www.spearsmanning.com/jury-nullification-whats-left-united-states-v-manzano/ (last visited Feb. 17, 2026).

[24] See [22]

[25] Jack B. Weinstein, Considering Jury “Nullification”: When May And Should A Jury Reject the Law to do Justice, HEIN ONLINE (1993), https://www.ojp.gov/ncjrs/virtual-library/abstracts/considering-jury-nullification-when-may-and-should-jury-reject-law.

[26] See [25]

[27] A Defense of Jury Nullification, SPRINGER NATURE, Oct. 9, 2018, https://link.springer.com/chapter/10.1007/978-3-319-93907-0_4 (last visited Mar. 24, 2026).

[28] See [27]

[29] Sonali Chakravarti, The Necessity to Nullify: On the Jury and Entrapment, LAW, CULTURE, AND THE HUMANITIES, https://schakravarti.faculty.wesleyan.edu/files/2018/11/Necessity-to-Nullify.pdf (last visited Mar. 24, 2026).

[30] Alan Scheflin, Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW AND CONTEMPORARY PROBLEMS (Autumn, 1980), https://www.jstor.org/stable/1191378?seq=1. 

[31] Andrew D. Leipold, Against Jury Nullification, OXFORD ACADEMIC (Nov. 17, 2011), https://academic.oup.com/book/1762/chapter/141418578. 

[32] Nancy J. King, Jury Nullification in the United States, OXFORD ACADEMIC (Feb. 3, 2015), https://academic.oup.com/edited-volume/41333/chapter/352356034?login=true.

[33] Alan Scheflin and Jon Van Dyke, Jury Nullification: The Contours of a Controversy, LAW AND CONTEMPORARY PROBLEMS (Autumn, 1980), https://www.ojp.gov/ncjrs/virtual-library/abstracts/jury-nullification-contours-controversy. 

[34] Jenny E. Carroll, Nullification as Law, GEORGETOWN LAW JOURNAL (Feb. 2014), https://scholarship.law.tamu.edu/facscholar/2063/.