Is jury nullification a sound practice for citizenry?

Jury Nullification is a doctrine protected directly by the Constitution and permits juries to acquit criminal defendants that guilty technically, but do not deserve punishment. The jury nullification decision usually occurs within a trial, when a jury gives a ruling that is not in line with the instructions of the judge regarding the provisions of the law. It is vital to note the fact that a verdict that is contrary to the provisions of the law, given by the jury, only pertains to the particular case that is before it. Jury Nullification is a doctrine that has for long elicited a hot debate within the courts, society and by the scholars. The power of the jury to either convict or acquit a criminal in circumstances where the law and the evidence adduced against the defendant demand the contrary verdict has been an issue of controversy within the corridors of justice. The opponents of this doctrine have termed it as quite extra-judicial and an affront to the requirement of justice in all judicial proceedings hence not needed by the citizenry. The argument presented in this paper is that jury nullification is a sound and very important practice for the citizenry. 

Background of the jury nullification doctrine 

Most histories of jury nullification begin with Bushell’s Case . Up until this precedent, courts in England had apparently exercised significant control over jury decision-making. As a result of Bushell’s Case , nullification came into being and would cross the ocean to the colonies. In Bushell’s Case , the English Crown prosecuted William Penn and William Mead for congregating to discuss a religion besides that of the Church of England (McKnight, 2013). The judge was convinced the verdict should be guilty, but the jury refused to convict. After the jury refused for the third time, the judge jailed the jury for contempt. However, Judge Vaughan granted the petition for writ of habeas corpus by one of the jurors, as he found that no juror could be punished for rendering a verdict contrary to the court’s opinion.

According to many scholars, the majority of Founding Fathers were in agreement with Judge Vaughan. Approval of the jury’s right to nullify is found in “the writings of some of the most eminent American lawyers of the age. They include Jefferson, Adams, Wilson, Iredell, and Kent, to mention just a few.” Thus, it was not only Anti-Federalists who sought to use the jury as a check against the government, but also well-established Federalists, including even the first Chief Justice of the Supreme Court, John Jay. Many modern cases refer to this distinguished history flowing from Bushell’s Case through the Founding period in defending the practice of nullification. Others argue, while “nullification” was alive and well at the Founding in some form, the “nullification” of this era was always tempered by the duty of juries to heed both the law and the judge; in other words, while the jury may have interpreted the law on its own, it was still under a duty to do so in a conscientious fashion. 

Whatever the exact contours of the right to nullify at the Founding, momentum would turn in the other direction as the legislature earned more trust from society, precluding the need for juries to defy statutes. In United States v. Battiste , the first significant blow to nullification came. Writing for the majority, Justice Story stated the jury must accept the law as given by the judge. In another famous case, United States v. Morris , the federal district court of Massachusetts interrupted defense counsel during a nullification argument to the jury, holding juries have no right to pass on legal questions. The issue in federal courts was settled firmly against nullification in Sparf v. United States . As such, all of the federal circuits have since fallen in line, agreeing, “While juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so.” As far as state courts are concerned, they are, for the most part, in accord with the federal courts (McKnight, 2013). A few exceptions, like Maryland, Indiana and Georgia tell jurors that they are to determine the law as well as the facts, though they do not expressly allow for an instruction sanctioning the right to nullify. 

Despite the official judicial consensus against jury nullification, the practice continues, and courts proclaim their inability to rein in runaway juries. The common justification for this incongruous arrangement is that nullification serves a valid purpose, but to acknowledge it directly would allow it to run amok. This uneasy balance is often challenged in academia, especially by proponents of nullification who would like it to be placed back in the light and acknowledged as a right of the defendant, and maybe even the jurors. However, the courts seem content to allow the nullification doctrine to remain exactly where it is: in the twilight.

Reasons why jury nullification is right and important for the citizenry

In its broadest form, "nullification" has often been used to describe the jury's "raw power to set an accused free for any reason or for no reason, " Sepulveda , 15 F.3d at 1190, even for reasons having nothing to do with justice or guilt. An acquittal may come because the jurors found the defendant attractive, or were members of the same race, or harbored hatred toward the victim's race, or merely because they were tired of being sequestered for months. This possibility, which might fairly be called "lawless nullification," is protected by our Constitution not for its own sake, but because of our commitment to the secrecy of jury deliberations and the finality and unreviewability of their verdicts (McKnight, 2013). This is true in much the same way that the First Amendment protects the right to say many things that nobody would publicly hold up as a model of good civic behavior. 

There is no compelling reason why a jury should learn every dirty little secret of our system of justice, especially if that knowledge would undermine the purpose of the proceeding or the jurors' perception of the seriousness of their role Caldwell v. Mississippi , 472 U.S. 320, 323 (1985), error to give jury misleading view of the extent of appellate review of their sentencing recommendation. Thus, the courts are correct to hold that the law should not require or encourage a judge to remind jurors of the regrettable fact that they have the raw power to acquit for any arbitrary or spiteful reason or indeed for no reason at all. But in no reported case, to my knowledge, has any defendant or his attorney requested an instruction that would go even half that far.

In the real world, outside the pages of appellate judicial opinions, defendants almost invariably make the far more modest request that the jury be told merely of its authority to acquit an accused if a conviction would conflict with their deeply seated sense of morality and justice. In this, its purest form, the possibility of "nullification" is not an accidental byproduct of careless drafting of the Constitution or of our commitment to some greater good. It is one of the very reasons for the existence of the Sixth Amendment's inflexible insistence that the accused has the right to a jury of his peers (Butler, 1995).

The jury is there, by design, "to prevent oppression by the Government" and to "protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority." Duncan v. Louisiana , 391 U.S. 145, 155-56 (1968). The jury's role "as a check on official power" is in fact "its intended function." Batson v. Kentucky , 476 U.S. 79, 86-87 n.8 (1986). The jury injects "a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions." United States ex rel. McCann v. Adams , 126 F.2d 774, 775-76 (2d Cir. 1942). That is why a directed verdict for the state would be not merely unconstitutional; it "would be totally alien to our notions of criminal justice," since "the discretionary act of jury nullification would not be permitted." Gregg v. Georgia , 428 U.S. 153, 199 n.50 (1976).

Some courts have reasoned that a nullification instruction would permit, if not encourage, the jurors to disregard or break the law. One court even held that it is proper to affirmatively instruct the jurors that they would "violate the law" if they engaged in nullification or if they violated any of the judge's instructions on the law. United States v. Krzyske , 836 F.2d 1013, 1021 (6th Cir. 1988). Another has reasoned that "anarchy would result from instructing the jury that it may ignore the requirements of the law." Powell , 955 F.2d at 1213. Such assertions are baseless. Contrary to the widespread myth popular among judges, there is no "law" that requires juries to convict every man shown to be technically guilty beyond a reasonable doubt. "The power of the courts to punish jurors for corrupt and incorrect verdicts," Dougherty , 473 F.2d at 1130, that darling of the Star Chamber's nursery, was banished from the pages of Anglo-American law centuries ago. Today, at its very core, our system of justice is unflinchingly committed to the liberty of criminal juries to "err upon the side of mercy," Jackson , 443 U.S. at 317, or to "refuse to convict even though the evidence supported the charge." Gregg , 428 U.S at 199 n.50. Any system that restricted such liberty "would be totally alien to our notions of criminal justice." In this respect, nullification is every bit as lawful as leniency extended by the prosecutor, or the judge, or the governor.

Moreover, there is no law that forbids a jury from pardoning a man who violated an unjust statute, even if an acquittal requires them to ignore the court's instructions on the law. The Constitution does no such thing; it actually protects the jury's right to acquit based on their sense of justice. The penal code does not criminalize such conduct, and would be clearly unconstitutional if it did. Not even the Bible imposes any such rule. If there is any such "law," it is true only in the narrow sense of illegitimate case law made up by judges acting well beyond the scope of their lawful authority (McKnight, 2013). Judges who tell each other that "nullification is illegal" are more than vaguely reminiscent of the judge who once told a criminal defendant: "Rule Forty-Two. All persons more than a mile high to leave the court! It's the oldest rule in the book." Lewis Carroll, Alice's Adventures in Wonderland 256. As the defendant adroitly responded: "Then it ought to be Number One" or, at the very least, written down in the Constitution, or the penal code, or somewhere besides judicial opinions.

A surprising number of courts have tried to blame the Supreme Court for their refusal to tell juries about the power to acquit on moral grounds. That myth is also false. The Supreme Court has never said such a thing. In the two cases widely cited for this proposition, the Court merely declared that a jury is not entitled to decide what the law is or should be, and that "a judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found." Horning v. District of Columbia , 254 U.S. 135, 138 (1920) (Holmes, J.); accord Sparf and Hansen v. United States , 156 U.S. 51 (1895). This language has been widely cited by lower courts as authority for their refusal to permit any argument or instructions on nullification. For instance, in Krzyske . 836 F.2d at 1021.

In fact, however, Horning and Sparf have nothing to do with this matter. It would indeed be improper to tell a jury that "they are to determine the rules of law." Dougherty , 473 F.2d at 1136. In Sparf , for example, the Supreme Court properly refused a murder defendant's request that his jury be told they could convict him of manslaughter out of leniency, even though he conceded that there was no evidence to support a finding of guilt on such a lesser charge 156 U.S. at 99. If that were the law, of course, we ought to read the jury the entire penal code, just in case manslaughter seems too harsh, so they could perhaps convict him of driving with a bad muffler instead, or maybe acquit him on the grounds of intoxication.

The entire system of justice would be undermined if jurors had the liberty to return a false verdict, even for benign motives of mercy, convicting a defendant of a lesser offense she simply could not have committed, or acquitting her because of some legal defense with absolutely no basis in the evidence (Scott, 1988). But that straw man has nothing to do with the typical case of a defendant seeking an instruction on nullification. Such instructions need not suggest that jurors be told they can decide for themselves what the law is or should be or that they can convict the defendant of some lesser offense or acquit on the basis of some affirmative defense with no basis in the facts. Our law does not countenance such contrivances and should not encourage them. But a proper nullification instruction or argument would merely tell the jury the fact or at least confirm their intuitive suspicion that our law intentionally allows them the latitude to "refuse to enforce the law's harshness when justice so requires." LaFave and Israel, Criminal Procedure § 22.1, at 960. Whether that information should be given to the jury has never been considered or decided by the Supreme Court (McKnight, 2013). But it is the height of hypocrisy to refuse to report that truthful information about our constitutional law to the jury on the pretense that the judge "has the right and duty to tell them what the law is." Horning , 254 U.S. at 138. That language, taken literally, would require the judge to tell the jury much more than we do about nullification.

There is one variant of nullification, however, that appears to have been recently foreclosed by the Supreme Court. Without specifically addressing the topic of nullification, the Court recently held that jurors should not be given distracting information about the sentencing consequences of their verdict, even when that evidence might serve to correct inconsistent and erroneous beliefs the jury is likely to harbor about the effect of their verdict. Shannon v. United States , 114 S. Ct. 2419, 2427 (1994). That reasoning would also appear to apply where the defendant seeks to tell the jury about sentencing information solely to persuade them to acquit out of compassion and mercy, as the lower courts have already acknowledged. See United States v. Johnson , 62 F.3d at 850. 

To understand why jury nullification is an important tool for balancing government interests with individual rights, one must understand the basic justifications that juries have for nullifying. It is impossible to know exactly why a jury chooses to acquit against the weight of the evidence in every situation, and different members of the jury may have different reasons for reaching their conclusions (Scheflin, 1972). However, past studies have shown that most instances of jury nullification are in response to what the members of the jury perceive as unlawful government behavior, unjust laws, or the inequitable application of the law.

Jury nullification is a sound practice for the citizenry because it is a response to unlawful government behavior. The government correctly and justly applies the law to a criminal defendant’s behavior. However, in the course of a criminal investigation or prosecution, the government commits an objectionable offense, and the jury punishes the government by acquitting the defendant (McKnight, 2013). Objectionable offenses could include, but are not limited to, perjured testimony or unreasonable searches or seizures. In this case, the jury makes a value judgment that the government’s inappropriate behavior was more reprehensible than the defendant’s. Thus, this category of jury nullification acts like the exclusionary rule by allowing a guilty criminal to escape punishment to discourage unacceptable governmental acts. 

The second importance of jury nullification is the nullification done in response to unjust laws, which consists of jury acquittals of a defendant who is otherwise guilty under a criminal statute because the jury disagrees with content of the statute (Weinstein, 1992). In these cases, the jury reasons that the law is unjust. Thus, the law should never apply under any circumstance. Prime examples of this category are acquittals of abolitionists who were accused under the Fugitive Slave Act of 1850. More recent examples include acquittals of defendants accused of violating Prohibition laws in the 1920s. In these examples, the juries acquitted simply because they did not agree with the law. 

The law may also be applied inappropriately hence citizens need jury nullification as a sound response to such a situation. The jury acquits a technically guilty defendant because technical application of the law seems unjust given the circumstances of the case. In these situations, the jury sees no problem with the applicable criminal statute. Rather, the jury decides that the prosecutor is unjustly applying the law. For example, a jury may think that the punishment is too severe to fit a specific defendant’s behavior, such as when a defendant commits a petty theft but is subject to a “three-strikes” law.

Further, the jury may believe that the purpose of the law poorly fits the circumstances of the case. For instance, a jury might acquit a parent who gives leftover pain pills to an injured child for a temporary, harsh pain (McKnight, 2013). Finally, a jury may nullify because it believes that the government is targeting an economic or racial class. This differs from nullifying in response to unlawful government behavior because, in this instance, the government’s behavior is lawful. It is the policy the government endorses by its action, such as patrolling more heavily in neighborhoods of racial minorities, which the jury finds inappropriate. Essentially, this third category of jury nullification is a check on prosecutorial and police discretion. 

Perhaps the most threadbare judicial objection to nullification arguments is that "neither the court nor counsel should encourage jurors to violate their oath." United States v. Trujillo , 714 F.2d 102, 106 (11th Cir. 1983). These cases routinely assume that a jury's oath forbids them from nullifying for any reason, even if based on their firm belief that a conviction would be a terrible miscarriage of justice. One prosecutor recently reiterated the age-old complaint that "jury nullification gives status and dignity to what is basically violating your oath as a juror to follow the law." Tony Perry, "The Simpson Verdicts," LA. Times , at 5 (Oct. 5, 1995). 

This ominous-sounding charge has no logical substance, although it naturally carries much emotional appeal. Jurors know that oaths are serious business, see Exodus 20:7, 16, and the law never permits or encourages anyone to do anything contrary to his oath. But despite its tremendous popularity among judges, this argument is by far the most misshapen stone in the barricade judges have been erecting around the jury box. 

To begin with, it is usually false. The typical oath taken by jurors today does not forbid them from refusing to convict based on their sense of justice. In fact, many oaths administered today are barely even intelligible. At the beginning of the trial, jurors are typically asked to swear that they "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help God." United States v. Green , 556 F.2d 71 n.1 (D.C. Cir. 1977). 

Nobody still alive today knows for sure what it means to "make a true deliverance." But nothing in this oath would forbid jurors from acquitting if they are convinced, based solely on "the evidence" that the actions of the accused were morally blameless and that a conviction would be unjust. In such rare cases, no jurors could be said to have decided a case "well and truly" if they had to disregard their sense of justice to convict. And an acquittal in that case would certainly sound like a true deliverance.

If a jury refuses to convict a man because of overwhelming feelings of mercy or justice, they are not returning a "false" verdict. A verdict of "not guilty" based on a jury's notions of justice is not affirmatively declaring that he is innocent. The same is true of an acquittal based on their conclusion that he has only been shown to be probably guilty, but not beyond a reasonable doubt. The general "not guilty" verdict is merely a shorthand way of allowing the jury to express, for reasons they need not explain, “We do not choose to condemn the accused by pronouncing him guilty.” 

The standard objection to nullification instructions might carry at least superficial plausibility in those jurisdictions where the jury is sworn to render "a true verdict according to the evidence and the charge of the Court." United States v. Pinero , 948 F.2d 698, 699 n.3 (11th Cir. 1991). If those same jurors are later instructed by the court that they "must convict" where there is proof of legal guilt beyond a reasonable doubt, it probably would be a violation of such an oath to disregard the court's charge and acquit the man because his conduct was morally blameless.

But this objection to nullification instructions utterly begs the question. It is clear that defendants can make at least a plausible claim to a moral and perhaps constitutional right to appeal to the jurors to acquit out of justice or mercy (McKnight, 2013). That argument must either stand or fall on its own merit, without any regard to the present wording of the jurors' oath.

Jury nullification gives protection against laws which the ordinary man may regard as harsh and oppressive. The Framers saw the judgment of their peers as invaluable ally if the distant federal Congress should pass oppressive laws or if the federal prosecutors should seek to harass citizens by the great instrument of arbitrary power that a criminal prosecution can become. Thus, proponents of jury nullification argue that jury nullification was intended to protect against unjust laws and unjust application of the law and that this idea accords with the Founders’ view of trial by jury. 

Another common argument in favor of jury nullification is that it is an important component of direct democracy. Proponents of this argument claim that jury nullification plays a democratic role in several ways. First, it serves as a check and balance against the various branches of the government. Next, jury nullification serves as another way for the people to signal to the various branches of government regarding desirable policy and legislation. Additionally, jury nullification serves a democratic function of infusing community values into the court system (McKnight, 2013).

Constitutionally, proponents of jury nullification argue that in as much as courts suppress a jury’s nullification power, the courts infringe on the defendant’s Sixth Amendment right to a trial by jury. Other proponents argue that jury nullification can serve as an important protection of minorities’ rights against oppression from the majority and that jury nullification creates greater legitimacy for the government by not oppressing jurors’ moral inclinations. Finally, proponents of jury nullification argue that it makes no sense to have juries if they are not allowed to nullify. Some argue that beyond the psychological aspect, juries provide no benefit to defendants when their only task is to determine the facts. These scholars argue that the juries often determine facts more poorly than judges do, so there must be something more than mere fact finding that juries are intended to do. 

Jury nullification is an important tool for balancing government interests with individual rights and that courts should not repress its use. Jury nullification balances government interests with individual rights by serving as a check and balance within the structure of government, by serving as an additional level of discretionary review, and by allowing common human experience to temper the oft-times rigid application of the law.

Checks and balances within government are a fundamental principle of the Constitution and of American jurisprudence in general. Checks and balances in government allow each branch of government to limit the others’ power, thereby restraining each individual branch’s abuse of government power. For example, the President checks the legislature with his veto power. The President and the Senate check the judiciary with their power to appoint judges. The judiciary checks the executive and legislative branches by reviewing Congress’s enacted statutes and the executive’s administration of those statutes. Other less known or less recognized checks and balances in American government also serve to limit government abuse of power. For example, the judiciary’s power is checked by the rule that it can hear only cases that are in controversy (McKnight, 2013). Additionally, Congress’s division into two houses serves as a check and balance on highly populated states’ power to abuse less populated states. And Federalism principles within the Constitution also limit the federal government’s power to abuse States, as well as the States’ power to abuse individuals protected by the federal government’s authority.

Like some of these more subtle examples, jury nullification serves as a check on the abuse of government power. Broadly speaking, the Sixth Amendment right to a jury trial serves as a fundamental check to prevent government abuse. In Duncan v. Louisiana , the Supreme Court incorporated the Sixth Amendment right to a jury trial in criminal cases into the Fourteenth Amendment, making the right applicable to the states. In its opinion, the Court stated, “a right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. The Court continued emphasizing that even though the Framers of the Constitution attempted to create an independent judiciary, criminal defendants needed further protection from potential abuses by the government (McKnight, 2013). The Court further explained that the right to a jury trial shows a conscious decision not to allow a single government entity, such as a judge, to have absolute power over the life and liberty of an individual. And finally, the Court stated, “fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.”

These statements by the Court reveal that one of the main purposes of a jury trial is to act as a protection or a check against the government. However, without jury nullification, the effectiveness of such a check is greatly diminished because the jury would be forced to rigidly apply the law just as the judge would. “Nullification decisions check prosecutorial discretion against the public values and social norms we recognize from judicial interpretation of statutes and from the full description of the rule of law.” Furthermore, without the power to nullify, the jury simply becomes a tool, a rubber-stamp, for the government to use however it wishes.

Through exercise of its nullification power, a jury can provide a check on legislatures to protect against unjust laws, a check on prosecutors that are unjustly applying the laws, and a check on judges who may be interpreting the law with too much rigidity. Jury nullification can also serve as a useful tool in balancing federalism, protecting states from the federal government’s encroachments into what have traditionally been the states’ determinations of criminal liability. For example, it can protect people who rely on state law that allows certain behavior while the federal government attempts to prosecute that same behavior. A current example of this is jury nullification’s ability to protect people from federal convictions in states that have legalized the use of marijuana. Jury nullification could also have practical implications in a hypothetical, yet possible, case in which federal law requires people authorized to perform marriages to perform them for both heterosexual and homosexual couples while some states’ laws may still be resistant to such a requirement (McKnight, 2013). In this way, jury nullification would act as an additional check or limitation, preventing abuse of government power. 

Nullification serves as an additional level of discretionary review, and recognizing it as such helps resolve criticisms that nullification defies the rule of law. Before any criminal case gets to trial, numerous government employees exercise wide ranges of discretion to determine whether the defendant’s conduct deserves prosecution. Initially, the police investigate alleged criminal behavior and decide whether to pass the information on to the prosecutor’s office for criminal charges. Discretionary decisions by police officers not to pursue criminal charges are subject to very little consistent review; at most, officers’ supervisors review such decisions. After a case has been sent to the prosecutor’s office, the prosecutor has almost unlimited discretion to choose not to file charges, even when the defendant’s behavior clearly violated a criminal law. When making such decisions, prosecutors often consider factors that are not relevant to a strict application of the law. Like police officers’ decisions, such decisions are likely subject to review only by the prosecutor’s supervisor, who is also a prosecutor (McKnight, 2013). Once charges have been filed, judges exercise discretion although their discretion is highly limited by statutes and precedent to determine whether to grant a motion to dismiss or whether to bind a defendant over for trial after a preliminary hearing.

Like the discretionary decisions of police officers and prosecutors, jury nullification is simply an exercise of the jury’s discretion regarding whether criminal punishment is appropriate in a given case. Just as police and prosecutors take into consideration factors such as whether the defendant’s behavior was merely a technical violation or whether other circumstances not formally recognized by the law justified or excused a defendant’s actions, so serves jury nullification to weed out inappropriate prosecutions where police and prosecutors failed to do so. This view of jury nullification substantially rebuts criticism that nullification violates the rule of law because this view reveals that discretionary decisions to not enforce a law are not as large a problem as critics argue; such discretion is exercised every day in police and prosecutors’ offices, so it seems irrational to claim that such discretion exercised on occasion by a jury would lead to anarchy and the end of the rule of law (McKnight, 2013). 

Countering, critics argue that jury nullification is a poor exercise of discretion because juries are not trained in the law and because they do not have the experience that police and prosecutor have in screening cases. However, juries are useful as an additional level of discretionary review exactly because they are not trained in the law. They look at the case from a common sense point of view. Such a common sense point of view is necessary to properly balance the rule of law with the fair application of justice or an application of the law in accordance with the spirit of the law because a purely legal approach, such as that taken by lawyers and judges, can often result in harsh results.

Furthermore, juries are actually better suited to exercise “discretionary non-enforcement” for several reasons. One reason juries may be better suited to screen cases is that juries do not need to appear that they are “tough on crime to ensure [their] reelection.” Another reason is that juries are “a group of local citizens who must live in the community into which they either might set criminals free or live with officials who violate rules (McKnight, 2013). In light of that, the jury seems an appropriately cautious body to trust with the power to make such [discretionary decisions].” Furthermore, “there is strong empirical evidence that prosecutorial discretion contributes more significantly to disproportionate capital sentences across classes of defendant groups than jury discretion does.” Thus, jury nullification adds an additional level of discretion that provides value to the criminal justice system.

Jury nullification balances government and individual interests by tempering the rigid application of the law. Often the “letter of the law” interferes with the “spirit of the law.” This is because the law applies to human behavior and the human experience is impossible to fully describe in a criminal law code. Therefore, jury nullification allows justice, or the spirit of the law, to be served in extreme cases, yet it leaves the state of the law unchanged in average cases, in part because it lacks precedential authority (McKnight, 2013). 

Juries are particularly well suited to perform this function of balancing the written law with practical concerns of justice and fairness. One reason they are well suited is that they consist of a number of people who must arrive at a unanimous decision. Often, jurors must thoroughly discuss the issues in a trial, thus taking appropriate care to correctly decide the issues before them, before they can agree on a verdict. Additionally, juries know less about the law than judges, but their knowledge of social norms and practices help them weigh both sides. Finally, empirical evidence shows that jurors try to do the right thing; they “take their role seriously, approach it conscientiously, and are capable of making complex moral judgments.”

Because jury nullification serves as a useful tool of checks and balances, because it adds an additional level of discretion, and because it appropriately tempers the rigid application of the law, courts should adopt measures that do not repress jury nullification (McKnight, 2013). It is important to stress that this Comment’s recommendation is that courts should be careful to not repress jury nullification; this Comment does not advocate that courts explicitly recommend or actively encourage nullification. Notwithstanding jury nullification’s admirable qualities, as with any philosophy, too much of a good thing can be a bad thing and an appropriate balance should be sought (Conrad, 2013). Therefore, courts should not aggressively encourage nullification such that the rule of law truly ceases to exist as critics of nullification fear. Furthermore, to serve as an effective check on government power, juries should be relatively free from government encouragement in either direction.

As an example of a method that does not discourage nullification while also not promoting it, the ABA’s February 2013 resolution to modify the Model Grand Jury Charge provides a suggestion that balances jury nullification considerations well. Specifically, the ABA recommended that the last sentence in paragraph 25 be changed from “. . . you should vote to indict where the evidence presented to you is sufficiently strong. . . .” to “. . . you may vote to indict only where the evidence presented to you is sufficiently strong. . . .” The ABA recommended this change because telling a grand jury that it “ should vote to indict” implies that it has the duty to do so even though no such duty exists. Most importantly, changing the wording to “ may vote to indict” allows the grand jury to exercise some discretion and not strictly apply the law to cases brought before them by the prosecutor. However, the proposed change also addresses the concerns of nullification critics in that it does not expressly instruct the grand jury that it has the power to nullify. Thus, the instruction leaves grand jurors free to nullify. But without express permission, they are likely to nullify only in extreme cases (McKnight, 2013). Likewise, judges should instruct petite juries that if the prosecutor has proven his case beyond a reasonable doubt, the jury may convict the defendant, as opposed to an instruction that in such cases the jury must or should convict.

The argument presented in this paper is that jury nullification is a sound and very important practice for the citizenry. Jury nullification is much relevant to the citizens because it brings the needed balance between government laws and the rule of justice. Judges do not need to oppose this doctrine because there are situations where the evidence adduced against criminals only proves technical guilty. Moreover, judges do apply the law inappropriately in some cases. Citizens need this doctrine of jury nullification to shield them from these excesses in the application of law. 

Reference

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