Jury nullification is a legal concept which occurs when a jury decides that a law is not humane, constitutional, or the punishment involved goes against their moral code. It can occur in criminal or civil trials.
When jury nullification happens, the defendant in the case is found to be “not guilty” of the charges against them. The verdict is handed down, even if the jury believes that the defendant is actually guilty.
It is the right of any jury to nullify a verdict. In the United States, jury members may not be required to be advised of their right to nullify during the instructional portion of their service.
Here are the most important pros and cons of jury nullification to consider.
List of the Pros of Jury Nullification
1. Nullification can be used as its own form of moral justice.
In July 2017, Jayson Newlun was allegedly discovered molesting a 1-year-old girl that was left in his care. The father of the girl discovered this action and brutally attacked Newlun, tackling him, hitting him with a dresser, and punching him in the face several times. This left Newlun with several facial injuries. Jury nullification provides a process that can protect the father from punishment, even though his attack after the abuse is technically a crime as well.
2. It prevents personal bias from entering into the conviction process.
When a jury is exposed to expert testimony from law enforcement officials and prosecutors, their inclination is to trust the state authorities over the defendant. Jury nullification permits jurors to be skeptical of the entire justice process, from start to finish. It leaves the idea of authoritarianism at the door and allows the will of the people, as represented by the chosen jurors, to be established within the confines of a courtroom.
3. The process provides needed checks and balances in the justice system.
The right to a trial by jury was put into the law as a way to balance the authority of the state, the government, or whomever else may be active as a plaintiff in the case. Whether it is “political” or “constitutional,” it doesn’t matter. When a jury is allowed within a justice system, then the jurors have the right to establish justice as a group. Even if one person is unconvinced of guilt or wishes to nullify, then at minimum, a mistrial can occur that forces another look at the case.
4. It allows juries to have the final say.
In the United States, a judge is permitted to overturn a jury verdict, but only if the judge disagrees with a “guilty” verdict. Judges are not permitted to overturn a verdict of “not guilty” and then summarily declare that the defendant is “guilty.” Laws regarding what a judge is permitted to do vary throughout the United States. Prosecutors are not permitted to appeal the “not guilty” verdict from a jury either, which means the jurors have the final say when it comes to justice. Even in pre-trial questioning, a juror may decide not to be honest about their knowledge or pursuit of jury nullification.
5. Jury nullification can be difficult to detect.
Jurors who may feel that a law is unjust do not need to be publicly vocal about their concerns. The same applies to an entire jury which may choose to nullify. They can simply decide to advocate for the defendant’s innocence in the case or refuse to vote for a “guilty” verdict. Because of the structure of a jury, nullification can be impossible to detect if a juror decides to keep their desire to nullify to themselves.
6. It is a process that can cause laws to change.
Juries are essentially acting as the moral voices of their community. If they believe that a law is unjust, then they have an arguable right to do something about it. There are several unpopular laws that are on the books and nullification is a way to either change those laws or change how they are enforced. In the 19th century, juries nullified slave laws in the north because they felt that slavery was not a moral practice. The same argument could be applied to the concept of “three strikes laws” or other forms of standardized sentencing today.
List of the Cons of Jury Nullification
1. Juries that are instructed that they can nullify are more likely to do so.
Telling someone that they are permitted to do something increases the chances that they are going to take such an action. Jury nullification has been authorized in the United States since 1895. It gives individuals the right to judge the law, just as they are judging the defendant. For this reason, judges often instruct jurors not to research the case on their own, including whatever punishment may apply.
2. It can take away the will of the population.
Jury nullification is really a double-edged sword. On one hand, the jury is able to uphold a true level of justice when a criminal or civil case may be inappropriate from a moral standpoint. On the other hand, the will of the general population may be to have certain laws in place to protect society and allowing a jury to have the power of nullification thwarts that will.
3. It stops prosecutors from pursuing defendants that are likely guilty.
In the United States, if an individual is found to be not guilty of charges brought against them, then prosecutors are prevented from pursuing those charges in the future without definitive new evidence. That means a jury which wishes to nullify can effectively set a guilty person free simply because they have objections about the law or what the sentencing guidelines are should a guilty verdict be found. Judges are not permitted to overturn a jury verdict of “not guilty.”
4. It can stop guilty people from going to prison.
During the Civil Rights Movement, southern juries were sometimes hesitant to convict individuals of a violent crime if their victim was an African American or a minority. Jury nullification has occurred in cases of assisted suicide, drug possession, and standardized sentencing as well.
5. Nullification permits one person to change the outcome of a trial.
It only takes one juror to alter the course of a trial. The rest of the jury may not wish to nullify, but they cannot do anything about an individual who refuses to vote for a “guilty” verdict. That means the preconceived notions or personal bias of a single juror can affect the outcome of a case. Instead of relying on legal standards, nullification may rely on personal opinion. In such a situation, the jury wouldn’t be acting as a moral voice.
6. Not every juror can make an informed decision about how just certain laws may be.
The legal standard for certain charges can be very complex. In June 2002, a jury convicted a woman in San Francisco of second-degree murder because her dogs mauled a neighbor to death. The judge threw out the verdict because the woman could not have reasonably known that her dogs would have killed someone. That meant she did not meet the legal definition of a mental state required for murder under local laws. Having a juror attempt to make such a decision can misapply justice, even if the intentions of nullification are good.
7. It allows culture to influence guilt or innocence.
There are times when a moral voice is important, such as when a burglar sues the family of the home he is attempting to rob because he is injured during the attempt. Awarding the burglar with a monetary award when he was breaking the law, though possible, is not culturally thought of as true justice. The moral voice can also be dependent upon local culture to determine guilt or innocence. Maybe the burglar broke into the home of someone wealthy and the public believes that wealth was gained through questionable or illegal methods. They might award the burglar with more money than he could have obtained on his own because of the injury.
8. Nullification allows the press to influence a conviction.
The 24/7 news cycle has created more opinions than facts in reporting. The goal may be to provide both sides of an issue, though the average person typically listens to only one side or the other. The opinions offered in the news, even before pre-trial interviews occur, can cause jurors to decide the merits of the case on their own before they even hear any evidence. That means the media has an influence on the modern nullification process.
These jury nullification pros and cons often inspire a passionate debate. Nullification has long been part of the justice system whenever a jury is in place. Recognizing this, changes to the jury system have occurred in some countries, such as a requirement to not need a unanimous verdict for sentencing. In the U.S., the proud tradition of nullification continues. In doing so, the voice of the people is heard, whether it is right or wrong.