X. Jury Nullification

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

X. Jury Nullification

Jury nullification is "the de facto ability of the jury to refuse to apply the law as instructed by the court, choosing instead 'to acquit out of compassion or compromise or because of the jury's assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'"²¹² The jury's inherent power to nullify has been acknowledged for hundreds of years, dating back—in the United States—to the prosecution of John Peter Zenger in 1735. Zenger wrote articles criticizing the royal governor and was charged by the government with seditious libel. Though the facts showed that Zenger was guilty as charged, the jurors opted to acquit him as a show of political protest.²¹³

Jury nullification has always been widely accepted in the United States. In terms of practice, however, three issues have emerged regarding the application of this power: the need to instruct the jury on nullification, the right of defense counsel to argue the doctrine, and the ability of the lawyers to inform jurors of the potential sentence in order to persuade them to use nullification. On all three issues, the overwhelming judicial response has been more favorable to the prosecution than the defense.

The Supreme Court first addressed the jury instruction issue late in the nineteenth century in Sparf v. United States.²¹⁴ In Sparf, the Court rejected the suggestion that it is proper to instruct the jury regarding nullification: "Congress did not intend to invest juries in criminal cases with power arbitrarily to disregard the evidence and the principles of law applicable to the case on trial."²¹⁵ Over the years, this view has been consistently followed. One of the strongest statements on point comes from a California court:

Jurors have a duty to follow the law as stated to them by the trial court. Nevertheless, although it is "a power which they ha[ve] no right to exercise" jurors have "the ability to disregard, or nullify, the law." "But the circumstance that the prosecution may be powerless to challenge a jury verdict or finding that is prompted by the jury's refusal to apply a particular law does not lessen the obligation of each juror to obey the court's instructions."

Accordingly, "it is important not to encourage or glorify the jury's power to disregard the law. While that power has, on some occasions, achieved just results, it also has led to verdicts based upon bigotry and racism. A jury that disregards the law and, instead, reaches a verdict based upon the personal views and beliefs...