Thursday, August 20, 2015

jury nullification

I have once again been summoned for jury duty. The summonses have been coming a little thick and fast recently, as two years ago I was called for superior court duty, last year for appellate court duty, and now once again for superior court. Although this seems a bit much, in actuality, in my whole life, I've only had to go down and be in a jury selection pool for one day, and though I was in the first group to be quizzed, I was quickly booted. So I can't say it's really been all that onerous.

Not my actual summons

Though I have my issues with trials in general, I am, if not happy to serve, then at least grudgingly willing. It seems to me to be just one of those citizen duties, like voting and paying taxes. But this time around, I have been getting quite a few completely unsolicited suggestions for how to get out of it. And no, I am not going to tell you what they are. But one person did mention that if I just said in the selection process that I believed in the right of jury nullification, no lawyer would want me around.

I knew vaguely about this concept, though I did not know its name, which frankly sounds a little creepy, like voter suppression or something like that. And it's usually been brought up in conversation by fairly extreme activist types, so it's sounded a little suspect and on the fringe of legal theory. But, in fact, it's not. 

Jury nullification is simply the process by which a jury votes to acquit a defendant, even though under the law, he or she is guilty. It is basically a vote against the validity of that law in those circumstances. It has been used to acquit people who were guilty of harboring slaves when the Fugitive Slave Law was still active, as well as letting people off of convictions during Prohibition. It has also been used to acquit perpetrators of hate crimes in communities that weren't unilaterally against such practices. So it's not any kind of magic bullet. But the option does tend to arise when law has somehow parted ways with the community it is supposed to serve. Whether it is ahead or behind the times is another question.

Convincing looking, but that doesn't make her right.

A curious aspect of the possibility of jury nullification is that the American public is not particularly well informed about it. If it was, a lot of people who are languishing in prison for small, non-violent drug violations would not have ever gone in, I bet. Our ignorance in this case has to do with the fact that the Supreme Court ruled as far back as 1895 that judges have no obligation to inform juries of this possibility. They have often tried to keep defense lawyers from telling juries about it as well.

Now, while all of this came up casually, it turns out to be timely as well. A Denver Post editorial appeared just a couple of days ago entitled "Jury Nullification is Not a Crime, Denver". It speaks of the recent arrest of two activists handing out literature on jury nullification outside of a Denver courthouse. But a civil rights attorney has filed a case on behalf of other activists who want to do the same thing unharassed. The article points out that a similar case was ultimately thrown out in New York, the judge saying that there would have to be proof of the pamphleteer trying to influence a particular case rather than just trying to educate people about a general principle.

Jury nullification isn't just some newfangled American thing. Its roots go back to English Common Law. And at, quotes from Oliver Wendell Holmes and a good handful of the Founding Fathers come out in support of nullification. Here's Holmes:

"The jury has the power to bring a verdict in the teeth of both the law and the facts."
— Justice Oliver Wendell Holmes, Horning v. District of Columbia, 1920

And here's Jefferson:

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual."
— Thomas Jefferson

So what am I going to do with my newfound knowledge? Well, here's Jurybox's advice:

"If I get selected for jury duty, should I disclose my knowledge of jury nullification to the attorneys or judge?

Only if asked. And if asked, do not lie about your knowledge. (This is a crime in and of itself.) Since knowing about jury nullification may get you excused from sitting on a jury, and the best place for informed jurors to be is on a jury rather than excused from it, the best answer to give is: "I have heard about jury nullification, but I'm not a lawyer, so I don't think I fully understand it. Maybe you could explain to me what it is?" This will typically result in either them dropping the issue entirely, or explaining it in full for other potential jurors to hear.

Yeah--that's my story and I'm sticking to it. 


  1. Fascinating! I will share this information widely.

  2. Intriguing. I'd have being a polymorphously inquisitive blogger would be enough to be excused.

  3. I suppose if anyone in the Santa Cruz court system read this it, it might be. But that seems highly unlikely.

  4. Seana, what do American law and political theory say, if anything, about the legal and moral obligations of jurors to vote according to the truth, as they see it; to their conscience, or what have you? And what is the source of that quotation from Jefferson?

  5. I got the Jefferson quotation off the jury box website, but a little further research reveals, first that it is widely quoted, and second that it comes from a letter he wrote to one I. Tiffany in 1819.

    According to Wikipedia, the power of jury nullification stems from an inherent aspect of common law systems, which is a general unwillingness to delve into jurors' motivations, during or after their deliberations. What happens in the jury room stays in the jury room.

    It is strengthened by two other common law principles--a prohibition on punishing jurors for their verdict and a prohibition in most common law countries on retrying a defendant after they have been acquitted.

    The tension over this idea remains to this day. A 1969 Fourth Circuit ruling affirmed the concept of jury nullification but simultaneously upheld the power of the court to refuse to tell jurors of its existence. But the sixth circuit upheld a court instruction that there is no such thing as a valid jury nullification. And the second circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law. So far the Supreme Court hasn't weighed in recently.

    I think that what it really all means is that you shouldn't use jury nullification lightly, but you should know it is there within your powers if you need it.