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Jury nullification

Jury nullification

Overview
Jury nullification occurs in a trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...

 when a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

 reaches a verdict
Verdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver and dit In law, a verdict...

 contrary to the judge's instructions as to the law.

A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to prosecute a statutory offence, it can have the de facto effect of invalidating the statute.
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Encyclopedia
Jury nullification occurs in a trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...

 when a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

 reaches a verdict
Verdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver and dit In law, a verdict...

 contrary to the judge's instructions as to the law.

A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to prosecute a statutory offence, it can have the de facto effect of invalidating the statute. A pattern of jury nullification may indicate public opposition to an unwanted legislative enactment.

The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict.

It was feared that a single judge or panel of government officials may be unduly influenced to follow established legal practice, even when that practice had drifted from its origins. However, in most modern Western legal systems, juries are often instructed to serve only as "finders of facts", whose role it is to determine the veracity of the evidence presented, and the weight accorded to the evidence, but not the application of that evidence to the law. Similarly, juries are routinely cautioned by courts and some attorneys to not allow sympathy for a party or other affected persons to compromise the fair and dispassionate evaluation of evidence during the guilt phase of a trial. These instructions are criticized by advocates of jury nullification. Some commonly cited historical examples of jury nullification involve the refusal of American colonial juries to convict a defendant under English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

.

Juries have also refused to convict due to the perceived injustice of a law in general, or the perceived injustice of the way the law is applied in particular cases. There have also been cases where the juries have refused to convict due to their own prejudice
Prejudice
Prejudice is making a judgment or assumption about someone or something before having enough knowledge to be able to do so with guaranteed accuracy, or "judging a book by its cover"...

s such as the race of one of the parties
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...

 in the case.

Other cases have revealed that some juries simply refuse to render a guilty verdict in the absence of overwhelming direct or scientific evidence to support such a judgment. With this type of jury impaneled for the trial of a case, even substantial and competently presented circumstantial evidence may be discounted or rendered inconsequential during the jury's deliberation.

Background



Jury nullification is a de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...

power of juries. Judges rarely inform juries of their nullification power. The power of jury nullification derives from an inherent quality of most modern common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 systems—a general unwillingness to inquire into jurors' motivation
Motivation
Motivation is the driving force by which humans achieve their goals. Motivation is said to be intrinsic or extrinsic. The term is generally used for humans but it can also be used to describe the causes for animal behavior as well. This article refers to human motivation...

s during or after deliberation
Deliberation
Deliberation is a process of thoughtfully weighing options, usually prior to voting. In legal settings a jury famously uses deliberation because it is given specific options, like guilty or not guilty, along with information and arguments to evaluate. Deliberation emphasizes the use of logic and...

s. A jury's ability to nullify the law is further supported by two common law precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...

s: the prohibition on punishing jury members for their verdict, and the prohibition (in some countries) on retrying defendants after an acquittal
Acquittal
In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi...

 (see related topics res judicata
Res judicata
Res judicata or res iudicata , also known as claim preclusion, is the Latin term for "a matter [already] judged", and may refer to two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine...

and double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...

).

Jury nullification is the source of much debate. Some maintain that it is an important safeguard of last resort against wrongful imprisonment and government tyranny. Others view it as a violation of the right to a jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...

 that undermines the law. Some view it as a violation of the oath
Juror's oath
A juror's oath is used to swear in jurors at the beginning of jury selection or trial.-United States:In the United States, a federal juror's oath usually states something to the effect of, "Do you and each of you solemnly swear that you will well and truly try and a true deliverance make between...

 sworn to by jurors. In the United States, some view the requirement that jurors take an oath to be unlawful in itself, while still others view the oath's reference to "deliverance" to require nullification of unjust law: "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 [me] God." Some fear that nullification could be used to permit violence against socially unpopular factions. They point to the danger that a jury may choose to convict a defendant who has not broken the letter of the law. However, judges retain the rights both to decide sentences and to disregard juries' guilty verdicts
Judgment notwithstanding verdict
Judgment notwithstanding the verdict, also called judgment non obstante veredicto, or JNOV, is a type of judgment as a matter of law that is ordered at the conclusion of a jury trial....

, acting as a check against malicious juries. Jury nullification may also occur in civil suits, in which the distinction between acquittal and conviction is irrelevant.

Nevertheless, there is little doubt as to the ability of a jury to nullify the law. Today, there are several issues raised by jury nullification.
  • First, whether juries can or should be instructed or informed of their power to nullify.
  • Second, whether a judge may remove jurors "for cause" when they refuse to apply the law as instructed.
  • Third, whether a judge may punish a juror for exercising their power of jury nullification.
  • Fourth, whether all legal argument
    Argument
    In philosophy and logic, an argument is an attempt to persuade someone of something, or give evidence or reasons for accepting a particular conclusion.Argument may also refer to:-Mathematics and computer science:...

    s, except perhaps on motions in limine
    In limine
    Motion in limine is a legal written "request" or motion to a judge which 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...

    to exclude evidence, should be made in the presence of the jury.


In some cases in the United States, a stealth juror
Stealth juror
A stealth juror or rogue juror is a person who, motivated by a hidden agenda in reference to a legal case, attempts to be seated on the jury and to influence the outcome...

 will attempt to get on a jury in order to nullify the law. Some lawyers use a shadow defense
Shadow defense
A shadow defense is a legal defense that cannot be sustained on its own merits, but which opens the door to introducing evidence that will assist in seeking jury nullification, and gives the jury an excuse to acquit...

 to get information entered into the record that would otherwise be inadmissible hoping that evidence will trigger a jury nullification. A notable contemporary example of this tactic is the claim by the defense in the currently (as of 2011-12) ongoing Roger Clemens
Roger Clemens
William Roger Clemens , nicknamed "Rocket", is a former Major League Baseball pitcher who broke into the league with the Boston Red Sox, whose pitching staff he would help anchor for 12 years. Clemens won seven Cy Young Awards, more than any other pitcher. He played for four different teams over...

 perjury trial to have the charges against Clemens dismissed due to "prosecutorial misconduct", i.e. that the prosecution intentionally introduced video evidence which Judge Reggie Walton
Reggie Walton
Reggie Barnett Walton is a federal judge on the United States District Court for the District of Columbia.-Early life and education :...

 had ruled inadmissible, for the purposes of getting, in the words of the defense, "a second bite at the apple", due to the prosecution's alleged poor performance. The introduction of the tainted evidence caused a mistrial after only two days. The judge denied the defense's motion but noted his strong displeasure with the prosecution. http://www.yardbarker.com/mlb/articles/judge_denies_baseballs_roger_clemens_motion_to_prevent_another_perjury_trial/6526573, http://articles.cnn.com/2011-08-26/justice/clemens.defense.filing_1_clemens-teammate-mistrial-defense-attorneys?_s=PM:CRIME, http://www.gpmlaw.com/resources/newsletters/white-collar-update/roger-clemens-trial.aspx

Common law precedent



The early history of juries supports the recognition of the de facto power of nullification. By the 12th century, common law courts in England began using juries for more than administrative duties. Juries were composed primarily of "laymen" from the local community. They provided a somewhat efficient means of dispute resolution
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...

 with the benefit of supplying legitimacy.

The general power of juries to decide on verdicts was recognised in the English Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...

  of 1215, which put into words existing practices:
No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land

For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood


Largely, the earliest juries returned verdicts in accordance with the judge or the crown. This was achieved either by "packing the jury" or by "writ of attaint
Writ of attaint
A writ of attaint is an obsolete writ in English law, issued to inquire whether a jury had given a false verdict in a trial.In criminal cases, the writ of attaint was issued at the suit of the Crown, and in civil cases at the suit of either party. The correctness of the verdict would be determined...

". Juries were packed by hand-selecting or by bribing
Bribery
Bribery, a form of corruption, is an act implying money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or...

 the jury so as to return the desired verdict. This was a common tactic in cases involving treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...

 or sedition
Sedition
In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...

. In addition, the writ of attaint allowed a judge to retry the case in front of a second jury when the judge believed the first jury returned a "false verdict". If the second jury returned a different verdict, that verdict was imposed and the first jury was imprisoned or fined.

This history, however, is marked by a number of notable exceptions. In 1554, a jury acquitted Sir Nicholas Throckmorton
Nicholas Throckmorton
Sir Nicholas Throckmorton was an English diplomat and politician, who was an ambassador to France and played a key role in the relationship between Elizabeth I and Mary, Queen of Scots.-Early years:...

, but was severely punished by the court. Almost a century later in 1649, in the first known attempt to argue for jury nullification, a jury likewise acquitted John Lilburne
John Lilburne
John Lilburne , also known as Freeborn John, was an English political Leveller before, during and after English Civil Wars 1642-1650. He coined the term "freeborn rights", defining them as rights with which every human being is born, as opposed to rights bestowed by government or human law...

 for his part in inciting a rebellion against the Cromwell
Oliver Cromwell
Oliver Cromwell was an English military and political leader who overthrew the English monarchy and temporarily turned England into a republican Commonwealth, and served as Lord Protector of England, Scotland, and Ireland....

 regime. The theoretician and politician Eduard Bernstein
Eduard Bernstein
Eduard Bernstein was a German social democratic theoretician and politician, a member of the SPD, and the founder of evolutionary socialism and revisionism.- Life :...

 wrote of Lilburne's trial:

His contention that the constitution of the Court was contrary to the fundamental laws of the country was unheeded, and his claim that the jury was legally entitled to judge not only as to matters of fact but also as to the application of the law itself, as the Judges represented only 'Norman intruders', whom the jury might here ignore in reaching a verdict, was described by an enraged judge as 'damnable, blasphemous heresy.' This view was not shared by the jury, which, after three days’ hearing, acquitted Lilburne — who had defended himself as skilfully as any lawyer could have done — to the great horror of the Judges and the chagrin of the majority of the Council of State. The Judges were so astonished at the verdict of the jury that they had to repeat their question before they would believe their ears, but the public which crowded the judgment hall, on the announcement of the verdict, broke out into cheers so loud and long as, according to the unanimous testimony of contemporary reporters, had never before been heard in the Guildhall. The cheering and waving of caps continued for over half an hour, while the Judges sat, turning white and red in turns, and spread thence to the masses in London and the suburbs. At night bonfires were lighted, and even during the following days the event was the occasion of joyful demonstrations.


In 1653 Lilburne was on trial again and asked the jury to acquit him if it found the death penalty "unconscionably severe" in proportion to the crime he committed. The jury found Lilburne "Not guilty of any crime worthy of death".

By the late 17th century, the court's ability to punish juries was removed in Bushell's Case involving a juror on the case against William Penn
William Penn
William Penn was an English real estate entrepreneur, philosopher, and founder of the Province of Pennsylvania, the English North American colony and the future Commonwealth of Pennsylvania. He was an early champion of democracy and religious freedom, notable for his good relations and successful...

. Penn and William Mead had been arrested in 1670 for illegally preaching a Quaker sermon and disturbing the peace, but four jurors, led by Edward Bushell refused to find them guilty. Instead of dismissing the jury, the judge sent them back for further deliberations. Despite the judge demanding a guilty verdict, the jury this time unanimously found Penn guilty of preaching but acquitted him on the charge of disturbing the peace and acquitted Mead of all charges. The jury was then subsequently kept for three days without "meat, drink, fire and tobacco" to force them to bring in a guilty verdict and when they failed to do so the judge ended the trial. As punishment the judge ordered the jurors imprisoned until they paid a fine to the court. Four jurors refused to pay the fine and after several months, Edward Bushell sought a writ of habeas corpus. Chief Justice Vaughan, sitting on the Court of Common Pleas, discharged the writ, released them, called the power to punish a jury "absurd", and forbade judges from punishing jurors for returning a verdict the judge disagreed with.

In 1681, a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

 refused to indict
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...

 the Earl of Shaftesbury. Then in 1688, a jury acquitted the Archbishop of Canterbury
Archbishop of Canterbury
The Archbishop of Canterbury is the senior bishop and principal leader of the Church of England, the symbolic head of the worldwide Anglican Communion, and the diocesan bishop of the Diocese of Canterbury. In his role as head of the Anglican Communion, the archbishop leads the third largest group...

 and six other Anglican bishops of seditious libel
Seditious libel
Seditious libel was a criminal offence under English common law. Sedition is the offence of speaking seditious words with seditious intent: if the statement is in writing or some other permanent form it is seditious libel...

. Juries continued, even in non-criminal cases, to act in defiance of the crown. In 1763 and 1765, juries awarded £4,000 and £300 to John Wilkes
John Wilkes
John Wilkes was an English radical, journalist and politician.He was first elected Member of Parliament in 1757. In the Middlesex election dispute, he fought for the right of voters—rather than the House of Commons—to determine their representatives...

 and John Entick
John Entick
John Entick was an English schoolmaster and author. He was largely a hack writer, working for Edward Dilly, and he padded his credentials with a bogus M.A. and a portrait in clerical dress; some of his works had a more lasting value...

, respectively, in separate suits for trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...

 against the crown's messengers. In both cases, messengers were sent by Lord Halifax to seize allegedly libelous papers.

In Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...

 jury nullification had the profound effect of introducing (or as others believed, reviving) the verdict of "not guilty". It was in 1728 that one Carnegie of Finhaven
Carnegie of Finhaven
Carnegie of Finhaven is famous for his trial for the killing of Charles Lyon, 6th Earl of Strathmore and Kinghorne which resulted in the not guilty verdict becoming a recognised part of Scots law and establishment the right of Scots juries to judge the whole case and not just the facts, a right...

 accidentally killed the Scottish Earl of Strathmore
Charles Lyon, 6th Earl of Strathmore and Kinghorne
Charles Lyon, 6th Earl of Strathmore and Kinghorne was a Scottish peer and the son of John Lyon, 4th Earl of Strathmore. His exact date of birth is unknown but he was baptised on 12 July 1699....

. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of "proven" or "not proven
Not proven
Not proven is a verdict available to a court in Scotland.Under Scots law, a criminal trial may end in one of three verdicts: one of conviction and two of acquittal ....

" depending on whether they believed the facts proved the defendant had killed the Earl. However, if the jury brought in a "proven" verdict they would in effect cause this innocent man to die. To avert this injustice, the jury decided to assert what it believed to be their "ancient right" to judge the whole case and not just the facts, rendering the verdict of "not guilty" which remains in Scotland to this day. Over time, however, juries have tended to favour the "not guilty" verdict over "not proven" and with this the interpretation has changed. Now the "not guilty" verdict has become the normal verdict when a jury is convinced of innocence and the "not proven" verdict is only used when the jury is not certain of innocence or guilt.

Standard jury trial practice in the United States during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury, so that the jury heard the same arguments the bench did in reaching his rulings on motions. This is evidenced by such decisions as the 1839 case Stettinius v. U.S., in which it was held that "The defense can argue law to the jury before the court gives instructions." Later, judges began to demand the parties submit motions in writing, often before the jury was empaneled, to be argued and decided without the jury being present. This transition began with motions in limine, to exclude evidence, on which it was felt the jury should not hear the argument because they would be informed of the evidence to be excluded. Later that was expanded to include all legal argument, so that today, that earlier practice of arguing law before the jury has been largely forgotten, and judges even declare mistrials or overturn verdicts if legal argument is made to the jury.

Canada


Although extremely rare, jury nullification does occur in Canada. The power is subject to greater than usual scrutiny, as the prosecution has powers to appeal the resulting acquittal. In addition, judges tend to be very much against nullification; in R. v. Latimer
R. v. Latimer
R. v. Latimer [2001] 1 S.C.R. 3, was a decision by the Supreme Court of Canada in the controversial case of Robert Latimer, a Saskatchewan farmer convicted of murdering his disabled daughter Tracy Latimer. The case had sparked an intense national debate as to the ethics of what was claimed as a...

, 2001 SCC 1
, it was stated that "The trial did not become unfair simply because the trial judge undermined the jury’s de facto power to nullify. In most if not all cases, jury nullification will not be a valid factor in analyzing trial fairness for the accused. Guarding against jury nullification is a desirable and legitimate exercise for a trial judge; in fact a judge is required to take steps to ensure that the jury will apply the law properly."

However, a few famous examples of nullification have occurred in Canada. In the 1988 Supreme Court case, R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...

, 1988 SCR 30
, a nullification was appealed all the way to the country's highest court, which struck down the law in question. In obiter dicta, Chief Justice Dickson wrote:


The contrary principle contended for by Mr. Manning, that a jury may be encouraged to ignore a law it does not like, could lead to gross inequities. One accused could be convicted by a jury who supported the existing law, while another person indicted for the same offence could be acquitted by a jury who, with reformist zeal, wished to express disapproval of the same law. Moreover, a jury could decide that although the law pointed to a conviction, the jury would simply refuse to apply the law to an accused for whom it had sympathy. Alternatively, a jury who feels antipathy towards an accused might convict despite a law which points to acquittal. To give a harsh but I think telling example, a jury fueled by the passions of racism could be told that they need not apply the law against murder to a white man who had killed a black man. Such a possibility need only be stated to reveal the potentially frightening implications of Mr. Manning's assertions. [...]



It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law" (Law Reform Commission of Canada, Working Paper 27, The Jury in Criminal Trials (1980)). But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so.


The Supreme Court more recently issued a decision, R. v. Krieger 2006 SCC 47, which confirmed that juries in Canada have the power to refuse to apply the law when their consciences require that they do so. Within this decision, it is stated that "juries are not entitled as a matter of right to refuse to apply the law — but they do have the power to do so when their consciences permit of no other course."

England


In the 1670 "Hay-market case", William Penn
William Penn
William Penn was an English real estate entrepreneur, philosopher, and founder of the Province of Pennsylvania, the English North American colony and the future Commonwealth of Pennsylvania. He was an early champion of democracy and religious freedom, notable for his good relations and successful...

 was accused of the crime of 'preaching Quakerism to an unlawful assembly' and while he freely admitted his guilt, he challenged the righteousness of such a law. The jury, recognizing that William Penn clearly had been preaching in public, but refusing to find him guilty of speaking to an unlawful assembly, attempted to find Penn guilty of "speaking in Gracechurch-street". The judge, unsatisfied with this decision, withheld food, water, and toilet facilities from the jurors for three days. The jurors finally decided to return a not guilty verdict overall, and while the decision was accepted, the jurors were fined. One of the jurors appealed this fine, and Chief Justice Sir John Vaughn issued an historically important ruling: that jurors could not be punished for their verdicts. This case is considered a significant milestone in the history of jury nullification. The particular case is celebrated in a plaque displayed in the Central Criminal Court (The Old bailey) in London.

In a criminal libel case, R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824, Lord Mansfield disparaged the practice of jury nullification:
So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.


To be free is to live under a government by law [...]. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.



[...]



In opposition to this, what is contended for? -- That the law shall be, in every particular cause, what any twelve men, who shall happen to be the jury, shall be inclined to think; liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.


In 1982, during the Falklands War
Falklands War
The Falklands War , also called the Falklands Conflict or Falklands Crisis, was fought in 1982 between Argentina and the United Kingdom over the disputed Falkland Islands and South Georgia and the South Sandwich Islands...

, the British Royal Navy
Royal Navy
The Royal Navy is the naval warfare service branch of the British Armed Forces. Founded in the 16th century, it is the oldest service branch and is known as the Senior Service...

 sank an Argentine Cruiser – the "ARA General Belgrano
ARA General Belgrano
The ARA General Belgrano was an Argentine Navy light cruiser in service from 1951 until 1982. Formerly the , she saw action in the Pacific theater of World War II before being sold to Argentina. After almost 31 years of service, she was sunk during the Falklands War by the Royal Navy submarine ...

". A civil servant (government employee) named Clive Ponting
Clive Ponting
Clive Ponting is a British writer, former academic and former senior civil servant. He is the author of a number of revisionist books on British and world history...

 leaked two government documents concerning the sinking of the cruiser to a Member of Parliament (Tam Dalyell
Tam Dalyell
Sir Thomas Dalyell Loch, 11th Baronet , known as Tam Dalyell, is a British Labour Party politician, who was a Member of Parliament in the House of Commons from 1962 to 2005, first for West Lothian and then for Linlithgow.-Early life:...

) and was subsequently charged with breaching section 2 of the Official Secrets Act 1911
Official Secrets Act 1911
The Official Secrets Act 1911 is an Act of the Parliament of the United Kingdom. It replaces the Official Secrets Act 1889....

. The prosecution in the case demanded that the jury convict Ponting as he had clearly contravened the Act by leaking official information about the sinking of the Belgrano during the Falklands War. His main defence, that it was in the public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...

 that this information be made available, was rejected on the grounds that "the public interest is what the government of the day says it is", but the jury nevertheless acquitted him, much to the consternation of the Government. He had argued that he had acted out of 'his duty to the interests of the state'; the judge had argued that civil servants owed their duty to the government.

United States



In the United States, jury nullification first appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act. Later, during Prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...

, juries often nullified alcohol control laws, possibly as often as 60% of the time. This resistance may have contributed to the adoption of the Twenty-first amendment
Twenty-first Amendment to the United States Constitution
The Twenty-first Amendment to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide Prohibition...

 repealing Prohibition
Prohibition in the United States
Prohibition in the United States was a national ban on the sale, manufacture, and transportation of alcohol, in place from 1920 to 1933. The ban was mandated by the Eighteenth Amendment to the Constitution, and the Volstead Act set down the rules for enforcing the ban, as well as defining which...

, the Eighteenth amendment
Eighteenth Amendment to the United States Constitution
The Eighteenth Amendment of the United States Constitution established Prohibition in the United States. The separate Volstead Act set down methods of enforcing the Eighteenth Amendment, and defined which "intoxicating liquors" were prohibited, and which were excluded from prohibition...

.

In a well known example of jury nullification, at the end of James Hickok
Wild Bill Hickok
James Butler Hickok , better known as Wild Bill Hickok, was a folk hero of the American Old West. His skills as a gunfighter and scout, along with his reputation as a lawman, provided the basis for his fame, although some of his exploits are fictionalized.Hickok came to the West as a stagecoach...

's trial for the manslaughter of Davis Tutt in 1865, Judge Sempronius Boyd gave the jury two instructions. He first instructed the jury that a conviction was its only option under the law, he then instructed them that they could apply the unwritten law of the "fair fight" and acquit. Hickok was acquitted, a verdict that was not popular with the public.

Fugitive Slave Law


"Jury nullification" was practiced in the 1850s to protest the federal Fugitive Slave Act, which was part of the Compromise of 1850
Compromise of 1850
The Compromise of 1850 was a package of five bills, passed in September 1850, which defused a four-year confrontation between the slave states of the South and the free states of the North regarding the status of territories acquired during the Mexican-American War...

. The Act had been passed to mollify the slave owners from the South, who were otherwise threatening to secede from the Union. Across the North, local juries acquitted men accused of violating the law. Secretary of State Daniel Webster
Daniel Webster
Daniel Webster was a leading American statesman and senator from Massachusetts during the period leading up to the Civil War. He first rose to regional prominence through his defense of New England shipping interests...

 was a key supporter of the law as expressed in his famous "Seventh of March" speech. He wanted high profile convictions. The jury nullifications ruined his presidential aspirations and his last-ditch efforts to find a compromise between North and South. Webster led the prosecution when defendants were accused of rescuing Shadrach Minkins
Shadrach Minkins
Shadrach Minkins was an African American fugitive slave. Born in Norfolk, Virginia, he escaped from slavery in 1850 to settle in Boston, Massachusetts, where he became a waiter...

 in 1851 from Boston officials who intended to return Minkins to his owner; the juries convicted none of the men. Webster tried to enforce a law that was extremely unpopular in the North, and his Whig Party
Whig Party (United States)
The Whig Party was a political party of the United States during the era of Jacksonian democracy. Considered integral to the Second Party System and operating from the early 1830s to the mid-1850s, the party was formed in opposition to the policies of President Andrew Jackson and his Democratic...

 passed over him again when they chose a presidential nominee in 1852.

21st century


In the 21st century, many discussions of jury nullification center around drug laws that some consider unjust either in principle or because they are seen to discriminate against certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification, and a recent rise in hung juries
Hung jury
A hung jury or deadlocked jury is a jury that cannot, by the required voting threshold, agree upon a verdict after an extended period of deliberation and is unable to change its votes due to severe differences of opinion.- England and Wales :...

 is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.

Judicial opinion in the U.S.


The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...

 held 5 to 4 that a trial judge has no responsibility to inform the jury of the right to nullify laws. This decision, often cited, has led to a common practice by United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 judges to penalize anyone who attempts to present a nullification argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire
Voir dire
Voir dire is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth , i.e., to say what is true, what is objectively accurate or subjectively honest, or both....

if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

Recent court rulings have contributed to the prevention of informing juries of their right and duty to nullify. A 1969 Fourth Circuit decision, U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969)
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect. In 1972, in United States v. Dougherty
United States v. Dougherty
United States v. Dougherty was a 1972 decision by the United States Court of Appeals for the District of Columbia in which the court ruled that members of the D.C...

, 473 F.2d 1113
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

, the United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...

 issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify. In 1988, the Sixth Circuit
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...

 upheld a jury instruction that "There is no such thing as valid jury nullification." however one of the dissenting judges pointed out that in United States v. Wilson, 629 F. 2d 439 - Court of Appeals, 6th Circuit 1980 that the panel had unanimously decided "In criminal cases, a jury is entitled to acquit the defendant because it has no sympathy for the government's position." In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b). The Supreme Court has not recently confronted the issue of jury nullification. Further, as officers of the court
Officer of the court
The generic term officer of the court applies to all those who, in some degree in function of their professional or similar qualifications, have a legal part—and hence legal and deontological obligations—in the complex functioning of the judicial system as a whole, in order to forge justice out of...

, attorneys have sworn an oath to uphold the law, and are considered by bar associations to be ethically prohibited from directly advocating for jury nullification.

Controversy


The main deontic issue involved in jury nullification is the tension between democratic
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...

 self-government and integrity. The argument has been raised that prosecutors are not allowed to seek jury nullification, and therefore defendants should not be allowed to seek it either.

See also


  • Citizens Rule Book
    Citizens Rule Book
    Citizens Rule Book is a handbook written to educate American citizens regarding their rights and responsibilities. It is a compilation of quotes from founders of the United States of America and select government documents, including information on the rights of a jury to "nullify bad law" and...

  • Fully Informed Jury Association
    Fully Informed Jury Association
    The Fully Informed Jury Association is a United States national jury education organization, incorporated in the state of Montana as a 501 not-for-profit organization. FIJA works to educate all citizens on their authority when they serve as jurors...

  • Josephine Terranova
    Josephine Terranova
    Josephine Pullare Terranova was the defendant in a sensational murder trial in New York City in 1906. After years of alleged sexual abuse at the hands of her aunt and uncle, the 17 year old Terranova stabbed the pair to death...

  • Judgment notwithstanding verdict
    Judgment notwithstanding verdict
    Judgment notwithstanding the verdict, also called judgment non obstante veredicto, or JNOV, is a type of judgment as a matter of law that is ordered at the conclusion of a jury trial....

  • Ultimate fact
    Ultimate Fact
    The ultimate fact is, in law, the conclusion of factual evidence made by a jury after deliberation.One common definition is "in a trial, a conclusion of fact which is logically deduced from evidence...." It is "the conclusion arrived during a trial based on the evidentiary facts." An example...


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