Jury nullification is one of those gray areas of the law that few people know about. It is technically legal and, at one point, was even encouraged by none other than the first Supreme Court Chief Justice John Jay. The practice has since fallen out of favor with most judges in the United States. In fact, if you even mention that you are aware of it, it will very likely end your eligibility to serve on a jury. But what exactly is it?
Simply put, it is the practice of a jury refusing to find a defendant guilty, even if they believe he or she is or, conversely, finding a defendant guilty even if they believe he or she is not. There are a variety of reasons for a jury to do so, which we will get into momentarily. But first, we must explore how and why this is an option.
Jury nullification appears nowhere in the Constitution and is rarely known to potential jurors in a pool. It exists thanks to a loophole in our justice system regarding the way jury trials are held. Under United States jurisprudence (and other countries as well, but we will focus stateside for the purposes of this article), the jury is the final arbiter of whether or not someone should be punished for a crime. Additionally, nobody may be tried for the same crime twice and juries may not be held to account for incorrect decisions.
In practice, this means that a juror may find somebody not guilty of breaking the law even if they clearly did. The most obvious examples come from the days of legal slavery in the United States when juries would routinely nullify in cases of escaped slaves. Escaping from slavery was clearly against the law, and many, if not most, of the defendants in those cases were clearly guilty of breaking said law. However, the law was also unjust, and many jurors felt that breaking an unjust law deserved no punishment. The practice also extended to many who broke prohibition laws during the 1920s and 1930s.
Of course, the flip side is that it can be open to abuse. If, for example, somebody is a sympathetic or famous person, mock trial studies have found that jurors who are aware of jury nullification may be more likely to acquit, whether or not it is the right course of action.
In the modern era, jury nullification is more likely to be applied in cases where somebody breaks a law that is controversial, if not outright wrong. Possession of marijuana and other non-violent offenses may draw not guilty verdicts due to the onerous nature of the failed War on Drugs and the increase in general acceptance of softer drugs. Many also believe that some euthanasia cases, such as that of Dr. Jack Kevorkian, may have been instances of jury nullification.
According to Chief Justice John Jay, the jury's duty was not only to judge the defendant, but also the law in question. But nowadays, more judges are apt to push a legalistic approach; indeed, Supreme Court Justice Oliver Wendell Holmes famously told one lawyer that his was a "court of law...not a court of justice."
One of the questions lawyers ask potential jurors is whether or not they have any beliefs that prevent them from making a decision based solely on the application of the law. If the juror is aware of jury nullification and fully intends to use it, they run the risk of committing perjury if they answer "no." However, it is nearly impossible to prove whether or not somebody did so if they do not explicitly say so, leaving the option wide open to savvy potential jurors.
In some areas, even discussing jury nullification can lead to trouble. Many activists have been penalized for simply handing out literature for doing so in front of courthouses on the grounds that it may influence the outcome of cases. It is, however, a perfectly legal practice, and simply being informed or informing somebody of it is perfectly legal, so long as the informing party is not referring to a specific case.