Jury Nullification: Can Jurors Refuse to Apply the Law?

A criminal jury that believes the defendant committed the acts charged can still return a verdict of not guilty. No judge can overturn that verdict, and the defendant cannot be tried again. To some, this is the jury's most important function: the community's final check on unjust laws and unjust prosecutions. To others, it is a flaw that allows jurors to substitute their preferences for the law.

Both views are partly right, which is why the topic generates so much confusion. The law has long distinguished between what a jury can do and what it is entitled to do, and it treats those two questions very differently from the question of what a jury may be told.

The power: an acquittal cannot be undone

The jury's ability to acquit against the evidence rests on two features of the criminal trial: the general verdict, which states only "guilty" or "not guilty" without reasons, and the Double Jeopardy Clause, which bars retrial after acquittal.

The finality of acquittal is very strong. In Fong Foo v. United States, 369 U.S. 141 (1962), a federal judge directed the jury to acquit partway through trial on grounds the Court of Appeals thought, "not without reason," were "egregiously erroneous." The Supreme Court held that the acquittal was nonetheless final, quoting an earlier decision that it "could not be reviewed ... without putting [the defendants] twice in jeopardy." If an acquittal resting on a judge's serious legal error cannot be reviewed, neither can one resting on a jury's reasons, whatever they were.

The law also tolerates verdicts that appear inconsistent. In Dunn v. United States, 284 U.S. 390 (1932), Justice Holmes wrote for the Court that "consistency in the verdict is not necessary," treating each count as if it were a separate indictment. A jury that convicts on one count and acquits on a closely related one may be exercising leniency, and the acquittal stands.

Power is not right

American courts have consistently described this capacity as a power rather than a right. The leading statement comes from Justice Story, sitting as a circuit judge in United States v. Battiste (1835), quoted at length by the Supreme Court in Sparf v. United States, 156 U.S. 51 (1895): juries "have the physical power to disregard the law, as laid down to them by the court. But I deny that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions or pleasure."

Sparf itself held, in an opinion by Justice Harlan, that "in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence." Justice Gray, joined by Justice Shiras, wrote a long dissent arguing that juries in criminal cases had historically been entitled to decide the law as well as the facts. The dissent is a serious historical argument and is often cited by nullification advocates; it remains a dissent.

History

The historical record is genuinely mixed, which is why Sparf divided the Court. Federal appellate courts have acknowledged that the early American view was different. The Fourth Circuit observed in United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), that American juries "remained the judges of both law and fact for approximately fifty years after the Revolution," before judges increasingly asserted control through instructions. Moylan also invoked the 1735 acquittal of John Peter Zenger for seditious libel as an example of nullification strengthening freedom of the press. The D.C. Circuit, in United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972), traced how "by the end of the century, even the most prominent state landmarks had been toppled," with Sparf settling the matter for federal courts, and described the old rule as surviving "only as a singular relic."

The same courts have also noted that nullification has a darker history. The Second Circuit in United States v. Thomas, 116 F.3d 606 (2d Cir. 1997), referred to "shameful examples of how nullification has been used to sanction murder and lynching," a reference to all-white juries acquitting defendants charged with racial violence.

What jurors may be told

The sharpest disputes concern instructions. In Moylan, defendants who had burned draft records argued that the judge should have told the jury of its power to acquit, or allowed counsel to argue it. The Fourth Circuit recognized "the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence," and stated that "the courts must abide by that decision." But it refused to require an instruction, reasoning that "by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences ... we would indeed be negating the rule of law in favor of the rule of lawlessness."

Dougherty reached the same result with a more sympathetic account of the power. Judge Leventhal's majority opinion accepted that the jury's prerogative is a "necessary counter to case-hardened judges and arbitrary prosecutors," but held that this "does not establish as an imperative that the jury must be informed by the judge of that power." The jury, he wrote, "knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court," and "what makes for health as an occasional medicine would be disastrous as a daily diet." Chief Judge Bazelon dissented on this point, objecting to the "deliberate lack of candor" in refusing both the instruction and defense argument on the subject.

What happens to a juror who announces it

Thomas addressed the other end of the problem: a juror who appears, during deliberations, to be refusing to apply the law. The Second Circuit stated that "no juror has a right to engage in nullification," that doing so is "a violation of a juror's sworn duty," and that trial courts "have the duty to forestall or prevent such conduct," including by dismissing a juror in appropriate cases. But it also held that the trial court had erred in dismissing a juror in that case, because the record "raised the possibility that the juror's view on the merits of the case was motivated by doubts about the defendants' guilt, rather than by an intent to nullify the law." Because inquiry into deliberations threatens jury secrecy, a juror may be removed only on a clear record.

What the record supports

A criminal jury has the power to acquit for any reason, and that acquittal is final under the Double Jeopardy Clause. Federal courts have held since Sparf that jurors do not have a legal right to disregard the court's instructions, that judges need not tell them of the power, and that courts may generally prevent counsel from urging it. Courts may act against a juror who openly refuses to follow the law, but only cautiously. Practice in state courts varies, and a small number retain constitutional provisions on the jury's role that differ from the federal rule; those provisions are beyond this entry. The archive's entries on jury duty and on who decides what in a trial place the question in its wider setting.