Last Updated on September 13, 2024
Sometimes the law is unjust. The law itself may be morally reprehensible, the penalties may be too harsh for the crime, or an ordinarily reasonable law may seem unfair in a particular case. In these cases, jurors may sometimes resort to a practice known as jury nullification, meaning they base their verdict not on the facts of the case presented to them, but on the law or penalties presented in the trial. Whatever the reason, juror nullification is a controversial topic, with many defending the practice and others deploring it —including in the courtroom.
Should Jurors Vote by Conscience?
Police have discretion when deciding whether to give someone a ticket or let them go. Prosecutors have discretion in determining whether to file charges or negotiate a plea bargain. Judges have discretion in what evidence they allow in court and what sentence to issue after a defendant is found guilty. Whether a jury member should have discretion about how the law is applied is a matter of debate.
As a technical matter, jury members are instructed not to vote by conscience. They take an oath at the beginning of a trial stating they will consider the evidence and reach a decision based on the facts rather than their interpretation of the law. Before deliberations, the judge will remind the jurors how they should properly apply the law, and under the juror’s oath, they have sworn to follow those instructions.
Those who support the right to juror nullification argue that it is a reasonable way to safeguard the public against unfair laws and the wrongful application of the law. They also argue that by legitimizing nullification, prospective jurors will be more honest during jury selection because they will not be afraid to be removed from the trial based on their political beliefs.
Supreme Court Justice Sonia Sotomayor previously presided over jury trials and has since expressed her support for the constitutional right to juror nullification, saying, “Think about what juries did during the civil rights movement. If it weren’t for jury nullification, we would have many civil rights individuals who would be convicted felons or otherwise for things that today we think are protected by the First Amendment. There is a place, I think, for jury nullification. Finding the balance of that and the role that a judge should or should not play in advising juries about that is, I think, a different thing.”
Critics of the practice claim that because members of a jury must violate their oath to nullify a case that they must lack integrity to start with. They also warn that someone with a poor moral compass could undermine the integrity of the entire justice system. Imagine, for example, if a supporter of eugenics served on the jury of a hate crime against a disabled person.
Examples of Juror Nullification
Abolitionist jurors of the 1800s regularly used this power by acquitting men and women who were undoubtedly guilty of violating the federal Fugitive Slave Act. In the 1960s, discussions about jury nullification entered the national consciousness when the news frequently discussed juries acquitting protestors accused of interfering with government efforts to draft young men into the military despite ample evidence of their guilt. Of course, plenty of jurors who exercised this power were on the wrong side of the law, such as the all-white juries of the 1950s and 1960s who acquitted men known to have lynched black individuals.
The series finale of Curb Your Enthusiasm provides a good fictional example of juror nullification. Larry David’s attorney urges the jurors to ignore the judge’s instructions and find him innocent, not based on his actions, but on the injustice of the law itself. While juror nullification is legal in Georgia, a lawyer still cannot urge jurors to ignore the judge’s directions before they go into deliberation.
Ordinarily, it is difficult to determine if juries believed the evidence was insufficient to find guilt or if they were using their discretion to nullify the law. In many cases, the public can only speculate if jury nullification played a role in someone’s acquittal. A few examples many people may be familiar with include Lorena Bobbitt, O.J. Simpson, Jack Kevorkian, George Zimmerman, and Kyle Rittenhouse.
Many legal experts are curious if juries in states where abortion has recently been criminalized will use jury nullification to send a message to legislators that they do not support the revocation of a woman’s right to choose. Jury nullification is particularly likely to occur in states that have outlawed all forms of abortion, including in cases of rape and incest, despite the public’s overwhelming support for these exceptions.
Reasons Jurors May Ignore the Evidence
There are three main reasons jurors may feel their role should extend beyond finding the facts of the case and determining how the law applies to those facts. They may take issue with the law or the penalties for particular offenses, or they may find that the circumstances of the specific crime should be considered mitigating circumstances.
The Law is Unjust
Occasionally, jury members feel they have a personal moral obligation to stand up against an unjust law, like the jurors who refused to convict those who helped runaway slaves. These days, many people question the fairness of punishing those accused of a victimless crime such as drug use when treatment is typically a more effective deterrent than jail time. Many jury members take a stand by voting not guilty in criminal trials against drug users.
The Penalties are Unfair
Judges determine the punishment when someone is convicted, and they typically go out of their way to avoid informing jurors of the potential penalties of a crime. But suppose a juror is familiar with the sentence and feels it is out of line with the severity of the offense. In that case, they may vote against a conviction to avoid subjecting the defendant to what they feel is a draconian punishment. As an example, a juror who is morally opposed to the three strikes law may refuse to convict someone for a gang crime enhancement to avoid leaving the defendant with a strike on their record for what would otherwise be a simple vandalism charge.
Mitigating Circumstances Apply to the Case
In some cases, someone on jury duty may believe a law and the associated penalties are fair, but shouldn’t apply to a particular case due to mitigating circumstances. A real-life example is the case of William Lynch, who was charged with beating a priest and even admitted his guilt on the stand but was still found innocent. When Lynch confronted the priest who molested him as a child and asked him to sign a confession, he became enraged when the priest gave him the same “leering” look he did before molesting him. While Lynch admitted his guilt, the jury felt that his actions were justified given the situation, which is why they found him innocent.
Is Jury Nullification Legal in California?
In some states, the legality of jury nullification is somewhat ambiguous. In California though, it was expressly prohibited in 2001’s People v. Williams. In this case, a man convicted of statutory rape argued that a prospective juror in his case should not have been dismissed because he was unwilling to enforce the law against statutory rape. Williams argued that the juror should have been permitted to exercise his right to jury nullification. The state Supreme Court ruled against him, stating that courts should not be subject to a jury’s whims but the equal application of the law.
While jury nullification isn’t legal in California, it does not mean it cannot happen or that jurors risk being charged with a crime if they base their decision on their personal beliefs rather than the law. The jury cannot be punished for verdicts, regardless of their reason for reaching a decision. Additionally, if jurors announce that they decided not to apply the facts to the law but based their decision on their morals, a not-guilty verdict cannot be overturned, even if the behavior is considered juror misconduct.
If a juror states that they will not follow the judge’s directions before issuing a verdict though, they may be dismissed and replaced by an alternate juror.
You Can’t Rely on Juror Nullification
Even if you live in a state where this practice is legal, and believe the jury will agree that the law is unjust in your situation, you cannot rely on jurors to nullify your case. Most people are unaware of this legal concept, and judges still instruct jurors to decide cases based on the facts of the law, not their opinion.
The best way to fight charges is with a skilled defense attorney. If you’re accused of a crime in San Diego County, I can help. Please contact my office (760) 643-4050 to schedule a free initial consultation or discuss any questions you may have about jury duty or the right to nullify.
