What Juries Are Never Told Before Trial

“In the ultimate analysis, only the jury can strip a man of his liberty or his life.” —Justice Tom C. Clark, Irvin v. Dowd (1961)

In A Nutshell

Most people think that the verdict in a criminal or civil prosecution can only return a verdict of “guilty” or “not guilty.” However, it has been a long-standing cornerstone of common law that a third verdict can also be returned by a jury. That verdict is one of “nullification,” which in layman’s terms basically means that although the defendant is guilty in the eyes of the jury, that same jury does not think that the defendant deserves to be punished for his or her crime. With this third option in delivering a verdict, the jury can “nullify” the charge(s) against the defendant and set him or her free, even though the returned verdict is still “guilty.”

The Whole Bushel

The first thing one must understand about this almost unknown legal quirk is that juries do not have the “right” to nullify a verdict: They have the “power” to do so. This is because the verdict of a jury is final, and “double jeopardy” (retrying a person for a crime which he or she has already been tried for) is illegal under the Fifth Amendment.

Technically, this power can be used in civil cases as well, but either the plaintiff or the defendant must submit a “judgment notwithstanding the verdict” motion to the court after a jury has returned its verdict. Once this is done, it is up to the judge of the case to ensure that the facts support the jury’s conclusion and verdict and withstand the confines of the law concerning the case. In this scenario, the judge is the one who can overturn a jury verdict and release whichever party applied for the motion from the obligation of the court’s judgment. Note that this procedure is not uniform in civil trials, and varies from state to state and case to case.

However, in the United States, criminal trials are uniform (as guaranteed under the Constitution), so the power of juries to nullify a verdict remains. Early in the history of the nation, this power was used often, and judges would often inform juries of it before trials even began. Those charged under the Alien and Sedition Act as well as those convicted of breaking fugitive slave laws were often released from sentence by juries under this clause. This clause is essentially a way for the people of the country to express their outrage against morally repugnant laws and to free those charged under them. Nullification is a double-edged sword, though. For example, in many civil rights cases in the mid-19th century, white juries would use this clause to free white defendants from crimes they committed against minorities.

Today, juries are rarely informed of their power to nullify, and many steps have been taken to restrict the power altogether, including giving judges the right to dismiss jurors who know of nullification and intend to use that power. Probably the most important measure taken against this practice, however, is the fact that judges in today’s trials instruct the jury that they must apply the letter of the law to a case, regardless if they agree with that law or not. It sounds technical, as legal terms often do, but there is a huge difference in judging the facts of a case (which is what juries are told now) and the law as applied to a case (which is what they still have the power to do).

With the birth of the Internet and its explosion of growth since the 1990s, the concept of nullification has once again begun to surface in the minds of Americans. Many grassroots movements have even attempted to use this concept to “nullify” federal statutes applied to individual states when they feel they are unconstitutional. Also, just over half a dozen states have recently tried to amend federal law to force judges to inform juries of their ability to nullify verdicts. So far, these efforts have proven to be very unsuccessful. Only time will tell what will become of this legal quirk of the system.

Lastly, it must be noted that nullification is possible in countries outside the United States but only to countries that follow common law systems. Those under sharia law or Napoleonic law have no such power. This also varies incredibly from country to country and time period to time period.

Show Me The Proof

Jury Nullification, Doug Linder
Fully Informed Jury Association: Jury Nullification