If you are an American Citizen, you will likely serve on a jury at some point throughout your life. When you get called for jury duty, you should be educated about what your role as a juror is and how vital a part of the criminal justice system you are.
As a juror, you have the right and the obligation to judge both the case facts and the law. If the evidence presents that a defendant is guilty of the law that they are charged with but the law itself is wrong, you have a right to return a verdict of not guilty in order to nullify the law. This is jury nullification, and it is a fundamental part of our constitutional republic and its history which has been suppressed in recent times.
Because the U.S. constitution contains protection against double-jeopardy, which means that no one can be tried twice for the same crime, once a jury returns a verdict of not-guilty their decision must stand (1). Juries can return a verdict of not-guilty contrary to the evidence presented in a case where the law or punishment is unjust. However, it is unethical for juries to do the opposite and convict someone of being guilty when the evidence proves otherwise.
Although the practice of Jury Nullification has a deep-seated history in both European and American law, it has not been common since the late 1800s and in fact, is often suppressed. In 2012, Professor Julian Heicklen was charged with jury tampering because he was passing out pamphlets on Jury Nullification outside Manhattan Courthouses. The case was dismissed by judge Kimba Wood, but this represents just one of many times people have attempted to stop juries from knowing that they have a right to nullification (2).
Defense lawyers in the U.S. used to often inform juries about nullification, but that is no longer common practice and is often prevented. In United States V. Sparf (1895) the Supreme Court voted 7-2 to uphold a conviction in a case where the trial judge had refused a defense attorney’s request to tell the jury about their ability to engage in nullification (1).
In order to safeguard against the legal system’s negative outlook on nullification, the fully informed Jury Association recommends that jurors do not openly discuss jury nullification unless it is clear that a few other jurors also have an intent to nullify.
“If a judge determines that you are considering not enforcing the law (for example, if one of your fellow jurors complains about you to the judge), then even as late as deliberations you can and most likely will be removed from the jury,” says the Fully Informed Jury Association (3).
The ability of juries to guard against tyranny is one of the reasons that the colonies separated from Great Britain. In the original thirteen colonies, juries frequently refused to enforce the navigation acts which were designed by the British Government to send all colonial trade through Britain. In response to this, the British established courts of Vice-Admiralty, which were juryless courts (4). The sixth amendment in the U.S. Constitution guarantees the right to trial by Jury, along with other important legal rights (5).
Perhaps the most famous case of Jury nullification is the 1735 trial of John Peter Zenger. Zenger was accused of printing seditious libels against the governor of New York. Although the evidence clearly showed that Zenger printed the libel, the Jury returned a verdict of Not-guilty. Nullification was also commonly used to cancel out cases brought under the Alien and Sedition acts of the early 1800s, the fugitive slave laws of the mid-1800s and during the 1930s prohibition era (1).
One objection against nullification is that it can and at times has been used for negative purposes. For Instance, at one time it was difficult for a prosecutor to get a conviction of a white defendant for the murder of an African American, even when the evidence clearly supported a conviction, according to Cornell law professor Sherry F. Colb (6). Such innate racism in the judicial system is highly disturbing. However, more often than not nullification is used as a safeguard against tyranny than as a justification for injustice.
Jack B. Weinstein, United States District Judge for the Eastern District of New York, believes that nullification will be rare, and if twelve jurors come to a decision to nullify, they will have good reasoning for doing so.
“Some of the juries with which I have worked have devoted months to the most difficult scientific and criminal issues, effectively deciding the facts and assiduously following instructions on the law,” Weinstein says (7).
Juries are an important part of our judicial system and given the honor to serve you should take it seriously. And- if it should be necessary vote ‘not guilty’ in protest to unjust laws.