Jury Nullification Appeals
What it is
Argument, explicit or veiled, that asks jurors to acquit because the law or its application is unjust rather than because the evidence fails, drawing on the jury's unreviewable power to return a general verdict of not guilty.
How it works
Real-world examples
- •Bushel's Case (1670): after jurors acquitted William Penn of unlawful assembly and were jailed for it, the Court of Common Pleas held that jurors may not be punished for their verdict, the foundation of the jury's independence.
- •The 1735 acquittal of John Peter Zenger for seditious libel, against the court's position that truth was no defense, is the celebrated American example; juries in the 1850s likewise refused to convict under the Fugitive Slave Act.
- •In 1955 an all-white Mississippi jury acquitted Roy Bryant and J. W. Milam of murdering Emmett Till after about an hour of deliberation; the two confessed to the killing in a magazine interview the following year, protected by double jeopardy.
- •Jack Kevorkian was acquitted three times in the mid-1990s in assisted-suicide prosecutions by juries that plainly disagreed with the law; he was convicted of second-degree murder in 1999 after administering a lethal injection himself on videotape.
- •Sparf v. United States (1895) and United States v. Dougherty (1972) fix the American rule: jurors have the power but no right to be told of it, and lawyers may not argue for it.
Ethical guidelines
Arguing that the prosecution has not proved its case, and appealing to the jury's duty to require proof beyond a reasonable doubt, is legitimate however forcefully it is put; asking jurors to disregard the law or the instructions, to acquit because the penalty is harsh, or to send a message about the statute converts the fact-finder into a political actor and is prohibited in nearly every US court.
- ●Arguing that the evidence does not prove the elements, and arguing reasonable doubt with full force, is always permitted; that is not nullification.
- ●Explicitly asking jurors to disregard the law or the instructions, or telling them they have a "right" to nullify, is prohibited in nearly every US jurisdiction and exposes counsel to contempt and discipline; the ethical rules require candor about the law (Model Rule 3.3).
- ●The power belongs to the jury, not to the advocate; a lawyer who manipulates it is using the fact-finder's conscience as a tactic, and the history shows the same power that protected Zenger shielded Till's killers.
- ●Educational; rules vary by jurisdiction; not legal advice.
How to defend against it
- ►Jurors: the oath binds you to the law as instructed; if you find yourself persuaded that the law is unjust rather than that the evidence is insufficient, recognize the distinction, and understand that announcing an intent to disregard the instructions can lead to your removal from the jury.
- ►Jurors: separate the harshness of a penalty from the sufficiency of the proof; in most courts you will not be told the sentence, precisely so that it cannot drive the verdict.
- ►Opposing advocates: object to arguments that invite decision on the justice of the law or the severity of punishment, and ask for the standard instruction that the jury must apply the law whether or not it agrees with it.
- ►Citizens: the debate over nullification is a legitimate political one, conducted outside the jury room through legislation and public argument; organizations on both left and right have championed it, and the courtroom is the one place the rules keep it out.
From the Defense Playbook
Learn the short list of things a lawyer is not supposed to say to a jury (put yourself in the victim's place, take my word for it, send a message, the other side has to prove its innocence) so that, as a juror or an observer, you can notice them and set them aside. (Educational; the rules vary by jurisdiction.)
When you have to apply a rule to a person whose story moves you, give yourself the instruction judges give juries: acknowledge the feeling, then decide each required element on the evidence, in writing, and check the result by imagining the same facts with a different person. (Educational; not legal advice.)
Every playbook entry states how strong its evidence is and when not to use it. Browse the full playbook.
References
- Supreme Court of the United States (1895). Sparf v. United States, 156 U.S. 51. United States ReportsJurors in federal criminal trials have no right to be instructed that they may disregard the law.
- United States Court of Appeals for the District of Columbia Circuit (1972). United States v. Dougherty, 473 F.2d 1113. Federal Reporter, Second SeriesNo entitlement to a nullification instruction, with acknowledgment that the jury's power to acquit against the evidence exists.
- Vidmar, N., & Hans, V. P. (2007). American Juries: The Verdict. Prometheus BooksHistorical and empirical treatment of jury independence and nullification, including the Zenger and civil-rights-era cases.