The Constitution's Jury Nullification Clause Explained

Jury nullification is a discretionary act that is not legally sanctioned. It occurs when a jury in a criminal case reaches a not guilty verdict that contradicts the evidence, often due to disagreement with the relevant law. While the Supreme Court has stated that juries have no right to ignore the law, nullification persists due to the secrecy of jury deliberations. Jury nullification is not explicitly mentioned in the US Constitution, but it is implicitly guaranteed by the Constitution's protection of free speech and trial by jury. The Fifth Amendment's Double Jeopardy Clause, which prohibits appealing an acquittal, also implicitly supports jury nullification. The practice has a long history in the US, with colonial-era juries using it to protest British rule and later to oppose laws like the Fugitive Slave Act and alcohol prohibition. Today, it often occurs in cases involving drug laws and mandatory sentences. While some see jury nullification as a right, others view it as an aberration, and there are differing legal interpretations and state-level provisions regarding its role and legality.

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Jury nullification's historical basis

Jury nullification refers to a jury's deliberate rejection of evidence or refusal to apply the law. This can occur because a jury disagrees with the relevant law or because the result dictated by law contradicts the jury's sense of justice, morality, or fairness. Jury nullification results in a "not guilty" verdict, even if jurors believe beyond a reasonable doubt that the defendant broke the law.

The historical basis of jury nullification can be traced back to colonial America, where juries used this power to protest against British rule. In 1670, English courts first recognised the jury's power to acquit a criminal defendant, even when evidence suggested guilt. This precedent was set when Quakers were acquitted by a jury of violating a law that permitted religious assemblies only under the Church of England. In colonial America, juries nullified the Navigation Acts, which would have forced all trade with the colonies to pass through England for taxation.

In 1735, journalist John Peter Zenger was acquitted by a jury that nullified a law making it a crime to criticise public officials. In the 1800s, Congress passed the Fugitive Slave Clause, which compelled citizens to assist in the capture of runaway slaves. However, some abolitionists used jury nullification to protest these laws, refusing to convict people under them. Jury nullification was also used in cases involving Vietnam War protesters charged with destroying draft files and in Fugitive Slave Act prosecutions against escaped slaves and their aides.

Jury nullification has been a topic of debate since before the founding of the American republic. Notable figures such as Alexander Hamilton, John Adams, and early prominent judges believed that jurors had a duty to vote their conscience, regardless of the evidence. In modern times, jury nullification has been observed in cases involving environmental activists and drug possession trials.

Jury nullification in state constitutions

Jury nullification is a discretionary act and is not a legally sanctioned function of the jury. It occurs when a jury in a criminal case reaches a verdict contrary to the weight of evidence, sometimes because of a disagreement with the relevant law. Jury nullification has its roots in British legal history, specifically in a 1670 English case where Quakers were acquitted by a jury of violating a law that permitted religious assemblies only under the Church of England.

In the United States, jury nullification has been used in various historical contexts, including by juries in colonial America to protest British rule and by abolitionists who refused to convict people under the Fugitive Slave Act. During the Vietnam War era, jury nullification was sought by protestors who were charged with draft-related offenses.

While jury nullification is not explicitly mentioned in the US Constitution, it is considered one of the "rights retained by the people" in the Ninth Amendment and one of the "powers reserved to the people" in the Tenth Amendment. Additionally, the Fifth Amendment's Double Jeopardy Clause prohibits the appeal of an acquittal, and jurors cannot be punished for their verdicts.

At the state level, the constitutions of 24 states, including Maryland, Indiana, Oregon, and Georgia, currently have provisions explicitly guaranteeing the right of jurors to "judge" or "determine" the law in "all criminal cases." For example, Article 23 of the Declaration of Rights in the Constitution of Maryland states: "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction." Similarly, Article 1, Section 1, Paragraph XI of the Constitution of the State of Georgia affirms the right to a trial by jury and specifies that "the jury shall be the judges of the law and the facts" in criminal cases.

While some view jury nullification as a right, it has also been criticized for enabling the acquittal of individuals who committed crimes against minorities, particularly in the Deep South during the civil rights movement era.

Jury nullification and free speech

Jury nullification refers to a jury's deliberate rejection of evidence or refusal to apply the law. This is often because the jury disagrees with the law or wants to send a message about a social issue that is larger than the case itself. Jury nullification has been used to protest laws that jurors believe are unjust, such as drug laws, alcohol control laws, and laws against protesting the Vietnam War.

The right to jury nullification is not explicitly mentioned in the US Constitution, but it is implied by the Fifth Amendment's Double Jeopardy Clause, which prohibits the appeal of an acquittal, and the fact that jurors cannot be punished for their verdicts. Jury nullification has a long history in English and American law, dating back to the 12th century when common law courts in England began using juries for more than just administrative duties.

Free speech is a fundamental right in democratic societies, and it is protected by the First Amendment in the US. The most essential function of free speech is to protect discussion and debate over government affairs and public issues. This includes discussions about jury nullification, which have been ongoing since before the founding of the American republic.

Some people have been arrested and charged with jury tampering for attempting to inform jurors about their right to nullification. However, courts have ruled that advocating for jury nullification is protected by the First Amendment as long as it is not targeted at jurors in a specific case. The government is prohibited from banning speech that it disagrees with, and the public benefits when ideas are aired out and debated.

Jury nullification can be seen as a form of free speech for jurors, allowing them to vote their conscience and refuse to enforce laws that they believe are unjust. However, jury nullification is also controversial and has been criticised for being misused in the past, such as by all-white juries that refused to convict whites who committed crimes against blacks. Ultimately, jury nullification is a complex and nuanced issue that raises important questions about the role of juries, the justice system, and the right to free speech.

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Jury nullification in colonial America

Jury nullification, also known as jury equity or a perverse verdict, is a decision by the jury in a criminal trial that results in a "not guilty" verdict even though the defendant has broken the law. The jury's reasons may include the belief that the law itself is unjust, that the prosecutor has misapplied the law in the defendant's case, or that the punishment for breaking the law is too harsh. Jury nullification is not an official part of criminal procedure but is a logical consequence of two rules governing the systems in which it exists: jurors cannot be punished for passing an incorrect verdict, and in many jurisdictions, a defendant who is acquitted cannot be tried a second time for the same offence.

In colonial America, jury nullification was used to protest British rule. Juries often acquitted defendants accused of violating unpopular laws, such as the Stamp Act or customs regulations. These actions contributed to the colonies' push for independence and established jury nullification as a foundational principle of American jurisprudence. Jury nullification was also used to resist British authority in maritime cases and cases implicating free speech. For example, in 1735, journalist John Peter Zenger was acquitted in New York by a jury that nullified a law making it a crime to criticize public officials. Later, colonial juries nullified the Navigation Acts, which would have forced all trade with the colonies to pass through England for taxation.

In the 19th and 20th centuries, jury nullification continued to play a role in American society. During the civil rights movement, some all-white juries acquitted white defendants accused of murdering blacks, though some scholars argue that the issue was not jury nullification but rather jury selection, as the jury was not representative of the community. Jury nullification also occurred during Prohibition, with juries often nullifying alcohol control laws, contributing to the eventual repeal of Prohibition. In more recent times, jury nullification has been seen in cases involving drug laws, with jurors refusing to convict defendants facing harsh mandatory minimum sentences for nonviolent drug offenses.

Jury nullification and the right to a fair trial

Jury nullification is a discretionary act by a jury in a criminal trial that results in a "not guilty" verdict, even though the defendant has broken the law. The jury's reasons for jury nullification may include the belief that the law itself is unjust, that the prosecutor has misapplied the law in the defendant's case, or that the punishment for breaking the law is too harsh. Jury nullification has its roots in the British legal system, specifically in a 1670 English case where Quakers were acquitted by a jury of violating a law that permitted religious assemblies only under the Church of England.

In the United States, jury nullification occurs when a jury in a criminal case reaches a verdict contrary to the weight of evidence, sometimes because of a disagreement with the relevant law. The American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict, and the Fifth Amendment's Double Jeopardy Clause, which prohibits the appeal of an acquittal. The Supreme Court of the United States has held that a trial judge has no responsibility to inform the jury of the right to nullify laws, and US judges often penalize those who attempt to present a nullification argument to jurors.

Jury nullification is considered by some as an important safeguard against wrongful imprisonment and government tyranny. On the other hand, others view it as a violation of the right to a fair trial by a jury, which undermines the law. There are examples of people being punished for disseminating information about jury nullification, such as two people who were arrested and charged with jury tampering for handing out pamphlets about it in Colorado. However, the Colorado Supreme Court ruled in 2020 that this was not jury tampering because it was not targeted at jurors for any specific case.

The right to a fair trial is a fundamental principle of criminal justice systems around the world. It is enshrined in international human rights law, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The right to a fair trial includes the right to a public hearing by an independent and impartial tribunal, the presumption of innocence, the right to counsel, and the right to examine witnesses. Jury nullification can be seen as a violation of the right to a fair trial, as it allows jurors to disregard the evidence and the law in reaching a verdict. However, it can also be seen as a safeguard against unfair prosecutions and a way for jurors to exercise their conscience and send a message about social issues.

In conclusion, jury nullification is a complex and controversial issue that raises questions about the role of juries, the right to a fair trial, and the balance of powers between the judiciary and the legislature. While some view it as an important check on governmental power, others see it as a threat to the rule of law and the integrity of the criminal justice system. The ongoing debate about jury nullification highlights the importance of an informed and engaged citizenry in upholding the principles of a fair and just society.

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