JuryNullificationBlimp_smallerMost Americans don’t realize there is a fourth “branch” of government more powerful than the President, Congress and the Supreme Court.  That “branch” is the jury.  There is a legal concept of which very few are aware: jury nullification.  In short, Jury nullification occurs in a trial when a jury acquits a defendant they believe to be guilty of the charges against them. This may occur when members of the jury disagree with the law the defendant has been charged with, or believe that the law should not be applied in that particular case. [1]

Jury nullification does have its limitations, though.  A jury can only bring a verdict contrary to the letter of the law on the case before it.  However, if this develops into a pattern of acquittals, it has the force of a de facto invalidation of the statute.  This usually indicates to prosecutors the public’s dissatisfaction or opposition to an unwanted law.

Modern Western juries are often instructed by the judge presiding over the case to serve in the capacity of “fact finders” only with the role of determining the veracity and credibility of the evidence presented.  They are further instructed to apply that evidence to the statute in order to reach a verdict but are NOT instructed that they have the ability to determine what the law is or whether it is a fair and just law.

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Jury nullification has a long history in America dating back to the Colonies.  In the American Colonies, jury nullification often involved the refusal of colonists to convict a defendant under English Law as in the case of John Peter Zenger.  In 1734, Zenger was arrested on charges of seditious libel against His Majesty’s government. The jury in that case disregarded the judge’s directions to find Zenger guilty instead, acquitting him.

Juries have also refused to convict a defendant due to the perceived injustice of a law or the way the law is enforced in a particular case.  The darker side of this concept has resulted in juries refusing to convict due to their own prejudices such as the race of one or more of the parties in the case.  This happened frequently in the South where the defendant was white and accused of damage against a black person.

Intensely debated, proponents of jury nullification see it as an important safeguard of last resort against wrongful imprisonment and government tyranny.  Opponents believe it is a violation of the right to a jury trial which undermines the law.  Yet others seem to view it as a violation of the juror’s oath though the oath’s reference to “deliverance” seems to require nullification of an unjust law.

In June of 2012, New Hampshire Governor John Lynch signed HB 146 into law requiring judges inform jurors of their right to nullify.  Almost immediately, the concept was applied in the case of New Hampshire v. Doug Darrell in a marijuana growing case.  According to the website, The New American, “Darrell, a Rastafarian piano tuner and woodworker who has been married for almost four decades, was arrested after a National Guard helicopter spotted some marijuana plants on his property in Barnstead. State prosecutors charged him with cultivation, a felony that could have carried up to seven years in prison.” [2]

Nobody, including Darrell, disputed that he was growing marijuana for his personal medicinal use in accordance with his religious doctrine.  Juror Cathleen Converse stated in an exclusive interview with Free Talk Radio [3], “Mr. Darrell is a peaceful man, he never deals with the darker elements of society and he grows for his own personal religious and medicinal use.  I knew that my community would be poorer rather than better off had he been convicted.”  To prevent conviction of Darrell, she convinced other jurors to do as the defense suggested: vote their conscience and declare Darrell a free man.  “Many of us wondered what kind of precedent this would set,” Converse continued. “But after chewing on all of the possibilities and re-reading the definition of nullification, we all decided that the only fair thing to do was to vote with our consciences and acquit the defendant of all charges.” [2]

Mark Sisti, Darrell’s defense attorney remarked that the judge’s decision to inform the jury of their right to nullification was key to his client’s victory, warning, though, that nullification is not a get-out-of-jail-free card.

This case illustrates how juries can express their dissatisfaction with current drug policy laws and render them moot.  As Americans are becoming more tolerant of marijuana usage in the face of new evidence suggesting that there are fewer and fewer negative effects of using the herb [4], jurors are less inclined to convict on drug charges involving marijuana.  Darrell’s case is one example of how jurors can use nullification to render a more just verdict rather than merely judging the facts against a law that may be unjust.

In his publication, “Jurors’ Handbook:  A Citizens Guide to Jury Duty,” Professor James J. Duane of the Regent University School of Law, states, “YOU, as a juror armed with the knowledge of the purpose of a jury trial, and the knowledge of what your Rights, powers, and duties really are, can with your single vote of not guilty nullify or invalidate any law involved in that case.”  This is backed by the 1972 decision of the U.S. Court of Appeals for the District of Columbia which stated that the jury has an “unreviewable and irreversible power… to acquit in disregard of the instructions on the law given by the trial judge…”[5]

According to the United States Court of Appeals for the District of Maryland, “We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision.[6]

There is little doubt as to the ability of a jury to nullify the law.  However, today, there are several issues of concern raised by jury nullification, namely:

  • Whether juries should be instructed or informed of their power to nullify,
  • Whether a judge may remove jurors “for cause” when they refuse to apply the law as instructed,
  • Whether a judge may punish a juror for exercising the power of jury nullification and
  • Whether all legal arguments, except for motions in limine[7] to exclude evidence, should be made in the presence of the jury.

The State of New Hampshire has, obviously, decided on the matter of instruction for their jurisdiction.  However, the Supreme Court has stated that judges are under no obligation to inform juries of their right to nullification.  But, as Douglas O. Linder, Elmer Powell Peer Professor of Law at the University of Missouri Kansas City writes in his 2001 document “Jury Nullification,”  “Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies.  They suggest that informing of the power to nullify will increase the number of hung juries.  Some judges also have pointed out that jury nullification has had both positive and negative applications–the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt.  Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders–that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.” [8]

This suggests that many judges may believe that jurors either do not have the capacity or should not be allowed to determine whether or not a law is just; that it is up to the courts to make that decision.  In a country where the ultimate power rests in the hands of the people and the system of justice exhorts, “It is better 100 guilty Persons should escape [the punishment of justice] than that one innocent Person should suffer,” [11] this is a conclusion that is not supported by the aforementioned decisions of the U.S. Courts of Appeal.

One of the organizations at the forefront in the debate over jury nullification is the Fully Informed Jury Association (FIJA) based in Helena, Montana.[10]  Kirsten Tynan, is the National Coordinator for FIJA.  When asked for comments regarding this issue, Tynan made the following statements via email, “Judges should not, but typically do, remove jurors if it comes to their attention during voir dire that a juror knows about his or her full legal authority or during deliberations that a juror is considering nullifying the law.”

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This is done contrary to the concept of American justice where the legal system favors the defendant.  Often, in a trial, clever prosecutors maneuver in such a manner that the jury is not given access to all the information in the case, especially information that could exonerate the defendant.

Ms. Tynan argues, “The jury should be aware of most courtroom proceedings. Modern juries are strictly curtailed by government in what they are allowed to do compared to how juries historically have operated. Juries in some cultures were used much more extensively, such as by participating in investigating crimes. In the United States today, however, jurors can be punished if they do outside research.”

This gives the prosecution too much power and severely limits the capabilities of defense attorneys.  Informing the jury of their right to nullification is one way for the defense to gain the upper hand especially in victimless crimes such as Doug Darrell’s case.  “In a case where there is no victim, there is no crime even if government has arbitrarily defined something as a legal offense. The jury in the Doug Darrell case, recognizing that nobody was harmed by Mr. Darrell’s private activities, appropriately refused to harm him and instead nullified an unjust law that would have punished a peaceful man for no good reason,” states Tynan.

Other arguments against jury nullification are:

  • Law should be made by elected legislators, not by jurors chosen randomly from the population.
  • Jury nullification would be inconsistent with the law’s aspiration that similar cases should be treated similarly because nullification would have unpredictable results in similar cases based on the preferences of different juries regarding the desirability of the same law.
  • The system has worked well for over a century without jury nullification.

Unfortunately for opponents of jury nullification, the framers of the Constitution had a different perspective:

  • The jury [and jury nullification] is a check-and-balance against government tyranny, and intended for the jury to have the power and right to nullify in cases of unjust criminal prosecutions.
  • That function of the jury is still essential today to protect against unjust prosecutions.[9]

In today’s legal system there are literally thousands of cases where a defendant has been convicted based solely on the facts presented to the jury regarding a law that has been misapplied or is unjust.  So the argument that jury nullification would be inconsistent with the law’s aspiration that similar cases should be treated similarly does not hold merit as these cases tend to prove.

For example, in 1985, Sharon and Edmund Pangelinan were convicted of contributing to the delinquency of minor children in the state of Alabama.  In her book Guilty of Love published in 1987, Sharon discusses the decision her family made to home educate their children, Ruben and Marisa, due to what they perceived as religious intolerance and other negative influences of the public school system in Alabama toward mixed race families.  In that case, the judge refused to allow the jury to consider nullification as the Pangelinan’s attorney believed their situation was a case of misapplication of an unjust and unconstitutional law.

There is no way to know if the outcome of the Pangelinan’s case or that of other cases where nullification was disallowed would have been different had it been allowed to be considered by the jury.  However, the fact that judges actively disallow nullification is perceived by many legal scholars and experts, like Tynan, as a serious miscarriage of justice.  “This is an insidious form of jury-tampering straight from the bench which tilts the playing field in favor of the prosecution.”

Cases such as the Pangelinan case, do not create a valid argument for requiring a judge to instruct a jury on nullification.  According to the Supreme Court in its Dougherty decision [5], “The fact that there is widespread existence of the jury’s prerogative, and approval of its existence as a necessary counter to case-hardened judges and arbitrary prosecutors, does not establish as an imperative that the jury must be informed by the judge of that power”.  This may seem to be hypocritical at first glance, but as Professor Duane points out:  “In our Constitutional Republic, note I did not say democracy, the people have granted certain limited powers to government, preserving and retaining their God-given inalienable rights. So, if it is indeed the juror’s right to decide the law, then the citizens should know what their rights are. They need not be told by the courts. After all, the Constitution makes us the masters of the public servants. Should a servant have to tell a master what his rights are? Of course not, it’s our responsibility to know what our rights are!”

Tynan furthers that argument by saying, “At the time the Supreme Court ruled in Sparf and Hansen v. United States that judges were not obligated to inform jurors of their right to nullify, the cultural and political environment were very different. Unlike today, jurors’ veto power was common knowledge in the culture so it was argued by some people that it was unnecessary to inform jurors of this authority. Additionally, the 1890s were notable for a climate of dissent between labor and industry. Judges were typically from the social upper class and tended to side with industry while juries were more likely to have working class members represented among them. Juries of the day often nullified criminal conspiracy laws that were used against striking workers and union organizers. Retired Washington State Supreme Court Justice William Goodloe points out in “Jury Nullification: Empowering the Jury as the Fourth Branch of Government” that the Supreme Court surely would have been aware in rendering the decision in Sparf and Hansen v. United States that the majority opinion, curbing the jury’s knowledge of its right to nullify, would help tilt the playing field in favor of industry and against the labor movement.”

Therefore, if the People, the Masters of America, decide they want juries to be instructed on nullification, they must follow New Hampshire’s lead and pass laws binding judges to the will of the People rather than allow judges to continue their current rogue practices.

Robert is a Libertarian and Desert Storm Veteran who proudly served in the United States Navy.  A friend of the People, Robert endeavors to educate and raise awareness about the important issues the United States is facing.  He is also the narrator of the infrequently produced Libertarian Express Radio Network (LERN) which can be found on YouTube and Facebook.


[1] From Wikipedia:  http://en.wikipedia.org/wiki/Jury_nullification

[2] http://www.thenewamerican.com/usnews/crime/item/12892-new-hampshire-jury-nullifies-major-felony-marijuana-case

[3]  http://www.freetalklive.com/content/nh_jury_nullifies_drug_war_acquits_pot_growing_rastafarian

[4]  http://www.washingtonpost.com/wp-dyn/content/article/2006/05/25/AR2006052501729_pf.html

[5] US vs Dougherty, 473 F 2d 1113, 1139 (1972)

[6] US vs Moylan, 417 F 2d 1002, 1006 (1969)

[7] In U.S. law, a motion in limine (Latin: “at the start”) (pronounced in-ˈlē-mi-ˌne) is a written “request” or motion to a judge that can be used for civil or criminal proceedings, and at the State or Federal level. A frequent use is at a pre-trial hearing or during an actual trial, requesting that the judge rule that certain testimony regarding evidence or information may be included or excluded. The motion is always discussed outside the presence of the jury and is always decided by a judge. The reasons for the motions are wide and varied, but probably the most frequent use of the motion in limine in a criminal trial is to shield the jury from information concerning the defendant that could possibly be unfairly prejudicial to him if heard at trial.[1] Some others arise under the Federal Rules of Civil Procedure for failure to comply with discovery.

[8] http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

[9] http://www.ajs.org/jc/juries/jc_powers_nullification_debate.asp

[10] Fully Informed Jury Association (www.fija.org)

[11] Benjamin Franklin, Works 293 (1970), Letter from Benjamin Franklin to Benjamin Vaughan (14 March 1785)