Jury Nullification occurs when a jury returns a verdict of “not guilty” despite its belief that the defendant is or may be guilty of the violation charged. By these actions, the jury nullifies a law that it feels is either unjust or applied inappropriately to the defendant whose life and liberty they hold in their grasp. This fundamental freedom concept is nestled in the idea that we live in a free nation set forth in the Bill of Rights by our Founding Fathers to protect the people from abuse of power. The Sixth of those Amendments to the Constitution affirms that in all criminal prosecutions, the defendant will have a fair and speedy public trial by an impartial jury of his peers. Thomas Jefferson was quoted to have said, “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” Our freedom is built on this very principle.
John Adams, in 1771 said “. . . it is not only [the juror’s] right, but his duty, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”
In the US this concept dates back to pre-civil war era, when juries refused to apply the Fugitive Slave Act in cases where defendants were charged for assisting to free slaves. Later, during the prohibition of alcohol, juries nullified repeatedly likely contributing to the 21st amendment repealing alcohol prohibition. Several court cases have affirmed the juror’s right to nullify. In 1969 US vs Moylan, courts recognized “the jury has the power to acquit, and the courts must abide by that decision.” However, they also ruled that the court was not required to instruct or inform the jurors.
With roots as a legal concept in Common Law Courts of 17th century England, Jury Nullification is a doctrine developed in response to a juror serving on a case against William Penn and William Mead in 1670. The pair had been arrested for illegally preaching a Quaker sermon and disturbing the peace. Four jurors refused to find him guilty despite the judge’s repeated orders for further deliberation. After pressure from the judge, the jury found Penn guilty of a single charge and dropped all others. The Judge imprisoned those jurors for three days without “meat, drink, fire and tobacco” to force them to return a guilty verdict, but again they refused. They were then imprisoned for months before invoking their Writ of Habeas Corpus to Chief Justice Vaughan who released them, calling the power to punish a jury “absurd.” He further forbade other judges from punishing a juror who did not agree with them.
Different from Jury Nullification in many ways, a Hung Jury is one that cannot agree on a verdict despite extended deliberation, typically resulting in a mistrial. For decades, a 5% hung jury rate was considered normal according to a study of the American Jury, by Harry Kalven, Jr. and Hans Zeisel in the mid-1950’s. Many statistics show those rates have been increasing, some even quadrupling.
Jury Nullification or Jury Veto has been applied to the costly war on drugs. The most notable early was the case of US vs. Edward Rosenthal. During a 2002 trial a juror came to believe that she was not privy to all of the evidence available and sought advice from an attorney friend on whether or not she was forced to convict. During Jury Selection, this juror noted that questions about medical use were asked yet no relevant evidence was presented at any time during trial. The friend’s advice that ‘she could be punished’ lead to juror’s compliance, and Rosenthal was convicted. The jury was never allowed to see evidence that Rosenthal had been deputized by the City of Oakland, to cultivate marijuana for medical purposes as permitted by California’s Compassionate Use Act of 1996. After the trial, many jurors were shocked to find out and publicly shared their frustrations. Rosenthal’s legal team submitted this juror’s testimony as evidence in the appeal and the verdict was overturned. Rosenthal was re-indicted after appeal and sentenced to just one day time served, three years probation and a fine.
Jury Nullification is an important albeit small part in the overall legal structure by which country is governed. Notice of Jury Service often disappoints many of us, as we have lost confidence in our legal system. What remains is that the Juror is the most powerful part of a criminal trial. Restore justice through civil service. A Juror with conscience is a defender of the people; a freedom fighter. This juror is one who educates themselves and others about Jury Nullification in order to protect American citizens from unjust convictions.
For more information visit Fully Informed Jury Association for more information at fija.org.