Jury nullification
Jury nullification, also known as jury equity or as a perverse verdict, is a decision by the jury in a criminal trial resulting in a verdict of not guilty even though they think a defendant has broken the law. The jury's reasons may include the belief that the law itself is unjust, that the prosecutor has misapplied the law in the defendant's case, that the punishment for breaking the law is too harsh, or general frustrations with the criminal justice system. It has been commonly used to oppose what jurors perceive as unjust laws, such as those that once penalized runaway slaves under the Fugitive Slave Act, prohibited alcohol during Prohibition, or criminalized draft evasion during the Vietnam War. Some juries have also refused to convict due to their own prejudices in favor of the defendant. Such verdicts are possible because a jury has an absolute right to return any verdict it chooses.
Nullification is not an official part of criminal procedure, but is the logical consequence of two rules governing the systems in which it exists:
- Jurors cannot be punished for the verdict they make.
- In many jurisdictions, a defendant who is acquitted cannot be tried a second time for the same offense.
Background
In the past, it was feared that a single judge or panel of government officials might be unduly influenced to follow established legal practice, even when that practice had drifted from its origins. In most modern Western legal systems, judges often instruct juries to act only as "finders of fact", whose role it is to determine the veracity of the evidence presented, the weight accorded to the evidence, to apply that evidence to the law as explained by the judge, and to reach a verdict; but not to question the law itself. Similarly, juries are routinely cautioned by courts and some attorneys not to allow sympathy for a party or other affected persons to compromise the fair and dispassionate evaluation of evidence. These instructions are criticized by advocates of jury nullification. Some commonly cited historical examples of jury nullification involve jurors refusing to convict persons accused of violating the American Fugitive Slave Act by assisting runaway slaves or being fugitive slaves themselves, and refusal of American colonial juries to convict a defendant under English law.Jury nullification is the source of much debate. Some maintain that it is an important safeguard of last resort against wrongful imprisonment and government tyranny. Some view it as a violation of the right to a jury trial, which undermines the law; whereas others, such as those members of Congress who voted to impeach Supreme Court Justice Samuel Chase for instructing a jury against nullification, view a jury as a body charged with judging both law and fact. Some view it as a violation of the oath sworn by jurors. In the United States, some view the requirement that jurors take an oath to be unlawful in itself, while still others view the oath's reference to "deliverance" to require nullification of unjust law: "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help God".
Some fear that nullification could be used to permit violence against socially unpopular factions. They point to the danger that a jury may choose to convict a defendant who has not broken the letter of the law. However, judges retain the rights both to decide sentences and to disregard juries' guilty verdicts, acting as a check against malicious juries. Jury nullification may also occur in civil suits, in which the verdict is generally a finding of liability or lack of liability.
The main ethical issue involved in jury nullification is the tension between democratic self-government and integrity. The argument has been raised that prosecutors are not allowed to seek jury nullification, and therefore defendants should not be allowed to seek it either; however, for a prosecutor to nullify a law in this context would require negating the presumption of innocence. For this reason, prosecutorial nullification is typically defined as declining to prosecute. Nevertheless, there is little doubt as to the ability of a jury to nullify the law. Today, there are several issues raised by jury nullification, such as:
- Whether juries can or should be instructed or informed of their power to nullify.
- Whether a judge may remove jurors "for cause" when they refuse to apply the law as instructed.
- Whether a judge may punish a juror for practicing jury nullification.
- Whether all legal arguments, except perhaps on motions in limine to exclude evidence, should be made in the presence of the jury.
Common law precedent
The early history of juries supports the recognition of the de facto power of nullification. By the 12th century, common law courts in England began using juries for more than administrative duties. Juries were composed primarily of "laymen" from the local community and provided a somewhat efficient means of dispute resolution with the benefit of supplying legitimacy. The general power of juries to decide on verdicts was recognised in the English Magna Carta of 1215, which put into words existing practices:Largely, the earliest juries returned verdicts in accordance with the wishes of the judge or the Crown. This was achieved either by "packing the jury" or by "writs of attaint". Juries were packed by hand-selecting or by bribing the jury so as to return the desired verdict. That was a common tactic in cases involving treason or sedition. In addition, the writ of attaint allowed a judge to retry the case in front of a second jury when the judge believed the first jury returned a "false verdict". If the second jury returned a different verdict, that verdict was imposed, and the first jury was imprisoned or fined.
That history is marked by a number of notable exceptions, several of which claim rights commonly recognized as fundamental in modern democratic societies, such as freedom of speech and of the press, and freedom of religious practice. In 1554, a jury acquitted Sir Nicholas Throckmorton but was severely punished by the court. Almost a century later, in 1649, in the first known attempt to argue for jury nullification, a jury likewise acquitted John Lilburne for his part in inciting a rebellion against Oliver Cromwell's regime. Lilburne had been charged with seditious libel for the publication of articles critical of the government; the jury were instructed to give a verdict only on whether the text was published, and to leave the issue of libel to the judge, while Lilburne argued the jury should give a general verdict and should judge whether the law's restraint on speech against the government was just. The theoretician and politician Eduard Bernstein wrote of Lilburne's trial:
In 1653, Lilburne was on trial again and asked the jury to acquit him if it found the death penalty "unconscionably severe" in proportion to the crime he had committed. The jury found Lilburne "not guilty of any crime worthy of death". In 1670, a petit jury refused to convict William Penn of unlawful assembly for religious practice not associated with the Church of England. The judge held the jury in contempt of court, which was ruled inappropriate by the Court of Common Pleas in Bushel's Case. In 1681, a grand jury refused to indict the Earl of Shaftesbury. In 1688, a jury acquitted the Seven Bishops of the Church of England of seditious libel. Juries continued, even in non-criminal cases, to act in defiance of the Crown. In 1763 and 1765, juries awarded £4,000 to John Wilkes and £300 to John Entick in separate suits for trespass against the Crown's messengers. In both cases, messengers had been sent by Lord Halifax to seize allegedly-libellous papers.
In Scotland, jury nullification had the profound effect of introducing the three-verdict system including the option of "not proven", which remained in Scotland until 2026. In 1728, Carnegie of Finhaven accidentally killed the Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law, as it then stood, required the jury merely to look at the facts and to pass a verdict of "proven" or "not proven", depending on whether it believed that the facts proved the defendant had killed the Earl. If the jury brought in a "proven" verdict, that would lead to Carnegie's hanging though he had not intended any harm to the Earl. To avert that injustice, the jury decided to assert what it believed to be its "ancient right" to judge the whole case, not just the facts, and rendered the verdict of "not proven". Over time, juries have tended to favour the "not guilty" verdict over "not proven" and so the interpretation has changed. The "not guilty" verdict has become the normal verdict when a jury is convinced of innocence, and the "not proven" verdict is used only if the jury is not certain of innocence or guilt.. The not proven verdict was abolished on 1 January 2026 as part of justice reforms introduced by the Scottish Parliament to "create a clearer, fairer and more transparent decision-making process".
The standard jury trial practice in the United States during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury so that it heard the same arguments as the bench in reaching its rulings on motions. That is evidenced by such decisions as the 1839 case Stettinius, which held, "The defense can argue law to the jury before the court gives instructions." Later, judges began to demand the parties submit motions in writing, often before the jury was empaneled, to be argued and decided without the jury being present. The transition began with motions in limine to exclude evidence on which it was felt the jury should not hear the argument because it would be informed of the evidence to be excluded. Later, that was expanded to include all legal argument and so that today, the earlier practice of arguing law before the jury has been largely forgotten, and judges even declare mistrials or overturn verdicts if legal arguments are made to the jury.