Jury Nullification

“It is not only [a 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.”

– John Adams, Founding Father and second President of the United States

Jury nullification refers to the power a jury has to find a defendant “not guilty” even where the the evidence presented would support a verdict of “guilty” under the law.  Supporters of jury nullification view the role of a juror broadly, as judge of both the law and the facts, and of the morality of prosecuting that particular crime in that community.  Accordingly, if a juror finds the law unjust, or unjust as applied to a particular case, the juror may acquit the defendant.

Jury nullification, despite its mixed reputation in modern times, has a long and noble history.  In the Colonial Era, juries frequently acquitted those accused of speaking against the king or who engaged in unlawful assembly.  In the days leading up to the Civil War, northern juries would often acquit defendants accused of helping runaway slaves, even where evidence of guilt was clear.  Juries frequently acquitted defendants facing alcohol-related charges in the prohibition era.  In more recent times, juries have nullified on cases involving trumped up charges on political protesters and drug charges, such as possession of medicinal marijuana.

At the time of the founding of the country, the principle of jury nullification was firmly rooted in the jury trial process. Toward the end of the 19th Century the courts started to reign in the rights of attorneys to argue for jury nullification.  It also became illegal for courts to instruct juries about their right to make an independent moral judgment as to the inherent justice of a conviction.  Prosecutors sought to reduce the role of the jury to simply finding facts and disregarding the morality of their decision.  In our courts now, prosecutors expressly tell jurors that there is no moral aspect to their role and encourage jurors to find defendants guilty even where the juror is morally uncomfortable with a conviction.  Jurors are also told to not consider what kind of sentence or punishment the defendant might receive, even though punishment is the core mission of our justice system.

Over the last several years, there has been growing interest in restoring the right of a jury to exercise its independent moral judgment of both the law and the facts.   Critics see the role of the jury as a crucial check on government power. The removal of this power has resulted in consolidated power in government prosecutors and has extinguished moral judgment from decision making. Constitutional scholars who have advocated an “originalist” perspective on the Constitution and Bill of Rights (that is, trying to understand and enforce those documents from the viewpoint of the men who wrote them) see the attempts by the courts and prosecution to restrict the role of the jury as an illegal and unauthorized power grab. When jurors lose the power to use independent moral judgment, it can lead to immoral and unjust results in some cases.

As the law stands now in California, the jury always retains the power to acquit, and the constitution still protects an individual against “double jeopardy” so nobody can be retried after a jury has acquitted.  However, no judge may instruct a jury as to its inherent power to acquit based on an independent moral judgment of the case.  And defense attorneys are not permitted to argue for nullification.