Jury nullification occurs in a trial when a jury acquits a
defendant, even though the members of the jury may believe that the defendant did the illegal act, yet
they don't believe he should be punished for it. This may occur when
members of the jury disagree with the law the defendant has been charged with
breaking, or believe that the law should not be applied in that particular
case. A jury can
similarly unjustly and illegally convict a
defendant on the ground of disagreement with an existing law, even if no law is broken (although
in jurisdictions with double jeopardy rules, a conviction can be overturned on appeal, but
an acquittal cannot).
A jury verdict that is contrary to the letter of the law pertains only to the particular case before it. If a pattern of acquittals develops, however, in response to repeated attempts to prosecute a statutory offence, this can have the de facto effect of invalidating the statute. A pattern of jury nullification may indicate public opposition to an unwanted legislative enactment.
In the past, 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. In most modern Western legal systems, however, judges often instruct juries to serve only as "finders of facts", whose role it is to determine the veracity of the evidence presented, the weight accorded to the evidence, to apply that evidence to the law, and to reach a verdict; but not to question the law or decide what it says. Similarly, juries are routinely cautioned by courts and some attorneys not to 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 jurors refusing to convict persons accused of violating the Fugitive Slave Act by assisting runaway slaves or being fugitive slaves themselves, or for breaking the refusal of American colonial juries to convict a defendant under English law.
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 prejudices such as the race of one of the parties in the case.
Judges rarely inform juries of their nullification power. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition (in some countries) on retrying defendants after an acquittal (see related topics res judicata and double jeopardy).
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 that undermines the law. Some view it as a violation of the oath 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."United States
The main deontic issue involved in jury nullification is the tension between democratic 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.
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, such as whether:
In some cases in theUnited States
The general power of juries to decide on verdicts was recognised in the English Magna Carta of 1215, which put into words existing practices:
In the 1895 in the case of Sparf v. United States written by Justice John Marshall Harlan, the United States Supreme Court 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 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 if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.
In recent rulings, the courts have continued to prohibit informing juries about jury nullification. In a 1969, Fourth Circuit decision, U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969), the Court affirmed the concept of jury nullification, but upheld the power of a court to refuse to permit an instruction to the jury to this effect. In 1972, in United States v. Dougherty, 473 F.2d 1113, theUnited States
In 1988, the Sixth Circuit upheld a jury instruction: "There is no such thing as valid jury nullification." In 'United
States
A jury verdict that is contrary to the letter of the law pertains only to the particular case before it. If a pattern of acquittals develops, however, in response to repeated attempts to prosecute a statutory offence, this can have the de facto effect of invalidating the statute. A pattern of jury nullification may indicate public opposition to an unwanted legislative enactment.
In the past, 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. In most modern Western legal systems, however, judges often instruct juries to serve only as "finders of facts", whose role it is to determine the veracity of the evidence presented, the weight accorded to the evidence, to apply that evidence to the law, and to reach a verdict; but not to question the law or decide what it says. Similarly, juries are routinely cautioned by courts and some attorneys not to 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 jurors refusing to convict persons accused of violating the Fugitive Slave Act by assisting runaway slaves or being fugitive slaves themselves, or for breaking the refusal of American colonial juries to convict a defendant under English law.
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 prejudices such as the race of one of the parties in the case.
Background
Judges rarely inform juries of their nullification power. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition (in some countries) on retrying defendants after an acquittal (see related topics res judicata and double jeopardy).
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 that undermines the law. Some view it as a violation of the oath 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."
The main deontic issue involved in jury nullification is the tension between democratic 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.
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, such as whether:
- juries can or should be instructed or
informed of their power to nullify.
- a judge may remove jurors "for cause"
when they refuse to apply the law as instructed.
- a judge may punish a juror for exercising the
power of jury nullification.
- all legal arguments, except perhaps on
motions in limine to exclude
evidence, should be made in the presence of the jury.
In some cases in the
The general power of juries to decide on verdicts was recognised in the English Magna Carta 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, 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.
Post-Civil-War Nullification
in the United States
White defendants
accused of crimes against blacks and other minorities were often acquitted by
all-white juries, especially in the South, even in the face of irrefutable
evidence.
Judicial Opinion in the United States
In the 1895 in the case of Sparf v. United States written by Justice John Marshall Harlan, the United States Supreme Court 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 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 if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.
In recent rulings, the courts have continued to prohibit informing juries about jury nullification. In a 1969, Fourth Circuit decision, U.S. v. Moylan, 417 F.2d 1002 (4th Cir.1969), the Court affirmed the concept of jury nullification, but upheld the power of a court to refuse to permit an instruction to the jury to this effect. In 1972, in United States v. Dougherty, 473 F.2d 1113, the
In 1988, the Sixth Circuit upheld a jury instruction: "There is no such thing as valid jury nullification." In '
https://en.wikipedia.org/wiki/Jury_nullification
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.[1]
An insanity defense might be used to present evidence about a person's troubled childhood, for instance, or a defendant might claim self-defense or duress in order to present evidence about an abusive relationship that, nonetheless, did not present an imminent mortal danger to the defendant.
An entrapment defense opens the door to presenting evidence about the behavior of police and informants. It is reversible error for a trial court to refuse a jury instruction on a theory of defense after a defendant makes a threshold showing as to each element of the defense.[2]
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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.[1]
An insanity defense might be used to present evidence about a person's troubled childhood, for instance, or a defendant might claim self-defense or duress in order to present evidence about an abusive relationship that, nonetheless, did not present an imminent mortal danger to the defendant.
An entrapment defense opens the door to presenting evidence about the behavior of police and informants. It is reversible error for a trial court to refuse a jury instruction on a theory of defense after a defendant makes a threshold showing as to each element of the defense.[2]
References
1.
Hall Jr., John Wesley (2003), Putting
on a Jury Nullification Defense and Getting
Away with It
2.
Conrad, Clay (1998), Using
Theories and Themes to Acquit the Guilty
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