Jury nullification is a process by which a criminal jury determines that a law is unconscienable, either morally or as it applies to a specific case, and therefore is to be ignored despite the guilt of the defendant. The US Supreme Court has determined that juries do have the power to nullify, but they also determined that juries need not be informed of this power. As a result, very few jurors have any idea that they can ignore the law, if they feel the case before them warrants that action.
Historical examples of jury nullification are abundant. Early in our nation’s history, jurors were regularly informed of this power. Positive examples of jury nullification include cases involving the Fugitive Slave laws, and of course, Prohibition. Negative examples include the refusal of some juries in the south to find white supremacists guilty of murdering African-Americans or civil rights workers, despite substantial evidence of guilt.
Judges worry that informing juries of this power will result in juror anarchy, with jurors deciding cases based on their sympathies rather than on the facts of the case; some argue that this is what happened in the OJ Simpson trial of the early 90s. Another judicial concern is that jury nullification will result in an increase in the number of hung juries, or that jurors will be overwhelmed if they are expected to interpret not only the facts, but the fairness of the law as well. An ongoing concern is that, once found not guilty by a jury, a defendant is protected from ever being tried again on that charge under the Double Jeopardy Clause; so if jurors nullify, guilty defendants will go free. The current conventional wisdom is therefore to not only not inform jurors of their nullification powers, but to specifically instruct jurors that they are to determine the facts, not the law, and that they must follow the law exactly as it is presented to them by the court. (more…)