Jury nullification: a perversion of justice?

• Author: Leipold, Andrew D.

Consider the following two cases. In the first, a man helps his terminally ill wife commit suicide. The prosecutor brings criminal charges against him, and the case looks strong. The defendant freely admits he prepared the toxic mix of drugs for his wife, knowing it would kill her. He argues, however, that he acted out of mercy, because his wife was suffering from a terminal illness and no longer wanted to live in pain. The defendant takes the stand in his own defense at trial and, during his testimony, breaks into tears, saying he loved his wife, but saw no way to help her except by hastening her death. The jurors believe the defendant is sincere and, although they agree that he has violated the criminal law, return a verdict of not guilty.

Case two: A group of men are charged with vandalizing a grocery store. It was owned by immigrants, and there is strong suspicion that the crime was motivated by the ethnic unrest that has been infecting the community. Although there is compelling evidence linking the defendants to the vandalism, they have the good fortune of being tried by a jury that shares their dislike of immigrants. Jury deliberations are brief, and the defendants walk away free.

These two cases are examples of jury nullification, which occurs when the jurors in a criminal case acquit the defendant, despite their belief that he or she was guilty of the crime charged. In every state and Federal court, a jury has the power to decide that, no matter what the law provides and no matter what the evidence proves, a defendant should not be convicted. As the above examples show, sometimes the nullification decision is based on mercy for the defendant, sometimes on dislike for the victim. Juries also have been known to nullify when the defendant engaged in civil disobedience and the jurors agreed with the actions (an environmentalist interfering with logging efforts, for instance) or wanted to send a wake-up call to the police or prosecutor who used questionable methods to gather evidence.

There has been a lot of discussion about jury nullification lately. When juries acquitted O.J. Simpson (in his criminal trial) and the Los Angeles police officers who beat Rodney King, there were loud and sharp claims in newspapers and coffee shops that these verdicts were based on racial prejudice, class bias, an irrational desire to punish the police, or naivete about police practices, not on the evidence presented. A Yale Law Journal article, "Racially Based Jury Nullification: Black Power in the Criminal Justice System," by Paul Butler of George Washington University Law School, has helped fuel the debate. He not only recognizes that juries sometimes do make decisions that are not based on the evidence, but argues that African-American juries at times should use the nullification power when a black defendant is accused of a non-violent crime. These events and discussions have led some people to the brink of despair about juries: "It seems like guilt or innocence doesn't matter anymore," they think. "Today, trials are about politics and about power; the only thing that matters is who is on the jury."

It would be easy to draw this conclusion from watching the nightly news -- easy, but wrong. The truth is that juries rarely acquit against the evidence, at least in serious cases. Most jurors are quite sensible and recognize that, if they acquit a factually guilty defendant, they may be turning a dangerous person loose, perhaps into their own neighborhoods. Juries may be merciful, but they are not stupid. More to the point, most garden-variety street crimes don't raise any issues that might lead a jury to nullify. Most crime is intra-racial, so any ethnic kinship a jury might feel for the defendant is blunted by the greater sympathy for the victim. Most crimes also have no political overtones or present obvious examples of police misconduct or prosecutorial overreaching. Perhaps most importantly, the majority of criminal cases never go before a jury. Most criminal charges end in a guilty plea prior to trial, often as a result of an agreement between the prosecutor and defendant. While it is true that prosecutors sometimes offer an attractive plea bargain because they are worried about what a jury will do (what lawyers euphemistically refer to as the "risks of litigation"), instances of nullification are rare enough that most plea agreements probably don't change much.

While the instances of jury nullification are small, the problems created by the existence of the nullification doctrine are very large. In an effort to protect the jury's right to acquit for any...