Jury Nullification

Jury nullification is not new; in fact, proponents wanting to justify its contemporary application do so by referring to early U.S. history when American colonists struggled to fashion a legal system that would be applicable to them. Prior to U.S. independence, the ENGLISH LAW of seditious libel carried grave consequences for colonists who spoke out against British rule of the colonies. In 1735, defense counsel for JOHN PETER ZENGER, at Zenger's trial for seditious LIBEL, contended that:

[Juries] have the right beyond all dispute to determine both the law and the facts, and where they do not doubt of the law, they ought to do so. This of leaving it to the judgment of the Court whether the words are libelous or not in effect renders juries useless (to say no worse) in many cases.

The jury acquitted Zenger, and every subsequent colonial jurisdiction that confronted the issue of the jury's right to decide both the law and the facts also came to the conclusion that jurors could decide matters of law. However, this conclusion must be put into historical perspective. First, in pre-revolutionary days, colonists lived under what they deemed an undemocratic, tyrannical government. The jury became a shield, where colonists could be judged by members of their own communities, and it was considered their only means for democratic expression. Second, the entire premise of democracy, in both pre- and post-independence days, demanded popular control of all facets of government. There was also a practical side to granting juries such unyielding control of trials: early colonial judges were essentially laymen selected from among their peers, and they often knew no more law than did the jurors.

However, once the United States established itself and a new republican form of government was developed, the will of the people became expressed through popular election of representatives and the enactment of their own laws. As nullification of the law would constitute a frustration of the popular will, the issue became essentially moot. Jury nullification was no longer considered necessary or desirable in a democratic society. Concomitantly, the role of judges as those who decided issues of law became enmeshed with traditional trial procedure. Not until more than 100 years later did the U.S. Supreme Court have to address the issue. In the case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), it unequivocally determined that, in the federal system at least, there was no right to jury nullification. The opinion noted,

[Juries] have the physical power to disregard the law, as laid down to them by the court. But I deny that … they have the moral right to decide the law according to their own notions or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court as to the law … This is the right of every citizen, and it is his only protection.

In subsequent years, jurors tended to invoke nullification to address either unpopular laws or overzealous application of them. Historic examples include the Alien and Seditions Acts, the Fugitive Slave Acts, and PROHIBITION. During the era of the VIETNAM WAR, the issue resurfaced in United States v. Dougherty, 473 F.2d 113 (D.C. Cir. 1972). In that case, defendant members of the Catholic clergy had ransacked the offices of the Dow Chemical Company to protest the manufacturing of napalm. At trial, defense counsel requested that members of the jury be instructed on their power to nullify the law. The trial court refused, and the court of appeals upheld the decision. Sporadic subsequent cases, presenting variations on the theme, have similarly underscored the high court's historic ruling.

Notwithstanding a judiciary that denied jurors the right to nullify, over the years, jurors have continued to use their power to do so. The power is most often wielded when jurors believe that an acquittal is justified for reasons that the law does not officially recognize. Examples include controversial social issues such as motorcycle helmet laws, ABORTION and right-to-life issues, medicinal use of marijuana, and EUTHANASIA.

In 1997, the U.S. Court of Appeals for the Second Circuit held that a juror's intent to nullify the law was JUST CAUSE for dismissal from the jury.

The case of United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) involved an African-American juror's dismissal from the criminal jury trial of five African–Americans on drug charges. However, the narrow opinion also reversed the convictions of the five defendants and remanded the matter for a new trial. Although the court ruled that a juror's refusal to apply the relevant law was just cause for dismissal, only unambiguous evidence of the juror's deliberate disregard of the law (not apparent in this case) would justify such a dismissal. In so holding, the appellate court acknowledged the necessity for secrecy in jury deliberations.

Similarly, in 1999, the Colorado Court of Appeals reversed a lower court's CONTEMPT conviction of juror Laura Kriho. People v. Kriho, 996 P.2d. 158 (Colo. App. [1999]). Several of Kriho's fellow jurors testified that during deliberations, she suggested to them that drug cases should be handled in the community rather than by a criminal justice system, and then advised them of their right to nullify. Although the trial court cited Kriho's alleged misleading of the court about her attitudes toward drug use during voir dire examination, the appellate court found that the Kriho case was, in fact, about jury nullification. It reversed her conviction on grounds that the court should not have considered evidence from jury-room deliberations. The end result of these cases reaffirms that juries have the power to render unreviewable general verdicts of acquittal, making it nearly impossible to definitely prove that nullification occurred.