In essence, ‘‘jury nullification’’ implies the power to disregard the law and acquit a presumably guilty defendant. However, the term is something of a misnomer in the sense that juries do not actually ‘‘nullify’’ anything—especially not the law itself; what juries actually do, when what we refer to as ‘‘jury nullification’’ takes place, is exercise the discretion granted to them and refuse to apply the law to the defendant. The power to deliberately not extend the law to cover a situation where it technically applies is both highly controversial (in that it appears to flout our abiding legal principles) and enormously consequential (in that acquittals are final—because of the double jeopardy clause, the state may not bring charges a second time for the same offense).
The roots supporting the power to nullify run deep into the colonial era in this country and back to the early 1600s in England. At this time, juries were asked to both determine the facts of the case and to define the law as they deemed fit. Such role expectations were predicated on deeply populist assumptions, placing considerable power in the hands of citizens and thus allowing the people to maintain a check on the power of the government by perhaps acquitting even those who had technically violated the law. And, significantly—then and now—jurors could not themselves be prosecuted for acquitting ‘‘guilty’’ defendants, a doctrine that can be traced back to the trial in England against William Penn for preaching a Quaker sermon.
Perhaps the most noted historical example of jury nullification was the trial of John Peter Zenger in colonial New York. The essence of the story is that Governor William Cosby of New York had suspended the chief justice for political reasons and then replaced him with an ally whose strings he could pull from the executive mansion. This event, among many others, drew the attention of the people and those journalists willing to risk prosecution for seditious libel for criticizing an elected official. Zenger, the editor of the New York Weekly Journal, lambasted Cosby in his newspaper, and Cosby’s appointment to the court tried twice to convince a grand jury to indict Zenger for libel, but failed both times. Eventually, Cosby simply had Zenger arrested and the trial began. Zenger’s counsel, the noted Philadelphia attorney, Andrew Hamilton, conceded that the facts were not in question; Zenger admitted to publishing the material and was, therefore, technically ‘‘guilty’’ of libel in that the criticism did bring disrepute on Cosby. But Hamilton desired to demonstrate to the jury that the published claims were, in fact, true and should not thus be considered ‘‘libelous.’’ However, he was not allowed by the judge to introduce such evidence and so in the end he openly appealed to the jury to scrutinize the nature and implications of such a libel standard and, more importantly, the gross abuse of power exhibited by the governor and to then provide redress for Zenger. In finding Zenger not guilty, the jury set an important precedent for the power of the jury to send a message in such circumstances.
From the discussion of the theoretical basis and historical origins of jury nullification, it is important to also contemplate more modern examples—especially as issues of race have affected nullification tendencies. The Civil Rights Movement, for example, was fueled in large part by the consistent acquittals (by all white juries) in state criminal courts in the American South in the early 1960s. In examples ranging from rape to assault to murder, juries seemed reluctant to apply the law to defendants they knew to be guilty—as an effort, it seems, to maintain a particular social order and resist the unwanted federal presence and intervention by outsiders. Race also figured prominently in the trial of O. J. Simpson in 1995, in which a majority black jury found the defendant ‘‘not guilty,’’ leading to allegations of nullification by experts and members (primarily white members) of the general public. Perhaps the jury was sending a message to the Los Angeles Police Department with its verdict; or perhaps the prosecutors simply failed to prove their case ‘‘beyond a reasonable doubt’’—and thus the jury was faithfully doing its job.
Indeed, the Simpson verdict portrays the mystery that still attaches to the practice of jury nullification, because other than postverdict interviews, books, or perhaps documentaries or studies conducted during the deliberative process, the public does not necessarily know why a jury returns the verdict it does. And thus, particularly in hot-button cases that receive extensive pretrial attention—where, for example, it seems that the verdict has already been rendered in (and perhaps by) the media—it is often difficult to understand why or how a jury came to its announced conclusion, whether it understood and accepted various facts, or whether it respected or dismissed the law as stated by the judge. The jury might have arrived at a result that strikes most people as egregiously wrong, but this does not necessarily imply that the jury engaged in ‘‘nullification.’’ The jury might simply have gotten it ‘‘wrong’’; for ‘‘nullification’’ to have occurred, there would have to be a deliberate intent to disregard the law in the case at hand—and that is quite difficult to demonstrate.
For this reason it is difficult to gather data as to the prevalence of jury nullification. Evidence does suggest that certain urban areas (for example, the Bronx, Detroit, Washington, D.C.) have higher acquittal rates—especially for certain offenders—but the multitude of variables and the key missing information (justification from the jury itself) make it difficult to infer that some communities are more or less inclined to ‘‘nullify’’ than others. Questions regarding the frequency of this practice are at the heart of the active debate in the criminal justice community as to whether or not jurors should be made aware of their discretion in this regard. Members of the jury might know this from crime novels or TV shows, but should the system itself apprise them of this power? On this question, the jury is still out.
BRIAN K. PINAIRE
References and Further Reading
Cases and Statutes Cited
See also Jury Nullification and Capital Punishment; Jury Trial; Jury Trial Right; Jury Trials and Race; Zenger Trial (1735)