I am prompted to write this essay in response to an essay by JoshuaBranch, entitled Jury Nullification: A Mitigator in America’s Culture Wars. I urge you to read JoshuaBranch’s essay.
My thesis is that jury nullification is not a noble tool that ought to be used by citizens to improve the quality of legal process. It is, to the contrary, an illegal and immoral practice, and it harms the judicial process. Moreover, those that urge it may be inciting people to commit crimes.
What Is Jury Nullification?
Let's go with the definition JoshuaBranch has supplied:
Jury nullification allows jurors, based on their own sense of justice and morality, to refuse to follow the law and acquit a person charged with a crime the jurors deem immoral—even when the evidence presented shows guilt beyond a reasonable doubt. (emphasis mine)
Do Juries Commit Jury Nullification?
It is beyond dispute that juries have, from time to time, acquitted defendants who were thought to be unjustly prosecuted, even if the case against the defendants seemed solid. It is also beyond dispute that jurors generally experience no penalty for doing so.
In many (if not most) cases, however, this is not jury nullification. It is not a refusal to follow the law.
It is, rather, a willingness to be more open to “reasonable doubt.” Under the law, a criminal defendant may not convict a defendant if there is any reasonable doubt about the defendant’s guilt. In a criminal case, the defendant literally gets the benefit of the doubt.
Judges use “jury instructions” to tell the jury what the law is. Jury instructions set out the elements of the crime that the prosecution must prove, and by what standard those elements must be proven. The duty of the jury is to apply the law to the facts, as shown by the evidence.
In many criminal cases, the instructions include terms that are susceptible to a range of reasonable interpretation, terms such as “knowing or having reason to know” or “community standards” or “with intent” or “proximately causing” or the like. Many jurors who think that a defendant is being treated unfairly do not disregard the law nor refuse to follow the law, but rather they read the instructions very strictly and to the defendant’s advantage. And if ever pressed, the jurors will typically say that they did follow the law and that the prosecution did not prove its case beyond all reasonable doubt, not that they refused to follow the law.
Making the prosecution prove every jot and tittle of its case is not jury nullification. In many cases, the jury has "wiggle room" in applying the law to the facts. Rarely (if ever) is a case cut-and-dried (i.e., the defendant admits every element of the crime but thinks he ought to be acquitted anyway). The jurors almost always have some basis within the bounds of the instructions to find in the defendant’s favor, and they may apply the law so as to acquit the defendant if they perceive that would be the just thing to do. This is not jury nullification.
Is Jury Nullification a Crime?
Although laws vary from jurisdiction to jurisdiction, it is fair to say that jury nullification is a crime.
It is a crime because jurors solemnly promise, subject to criminal penalty, that they will not do it.
In JoshuaBranch’s essay, JoshuaBranch observes:
Jury nullification has a rich history as a tool of American civic disobedience.
Generally speaking, civic disobedience (or civil disobedience) involves committing a crime. One committing such disobedience may have noble reasons for doing so, and may be on the right side of history, but those who engage in the practice must be aware that they are running afoul of the criminal law. They may see themselves as acting in the interest of higher justice, but they also may wind up incarcerated, fined, and with a criminal record. Civil disobedience is not an activity to be undertaken lightly. People who engage in civil disobedience must do so with knowledge of the possible consequences, whether those consequences are deemed to be just or not.
Breaking the Voir Dire Oath or Affirmation
Jurors typically take two oaths or affirmations. (Basically, oaths and affirmations have the same legal effect: they represent solemn promises which, if broken, can subject the one making the oath or affirmation to criminal charges.)
The first oath or affirmation occurs before a person is chosen for a jury. Potential jurors undergo a process called “voir dire,” in which they answer questions intended to discover potential prejudices, conflicts of interest, or other circumstances that may affect a potential juror’s impartiality.
In a controversial case, the jurors are always asked whether they would apply the law given to them by the judge, and if they answer in the negative, they may be excluded from the jury for cause. (This question is often asked as a matter of course in cases that are not controversial as well.) A prospective juror who falsely promises to apply the law, when that prospective juror knows that he won't apply the law if it doesn't suit his fancy, commits a crime.
In other words, prospective jurors in controversial cases will be asked whether they would commit jury nullification, and they will generally not be permitted to sit on the jury if they say they will. If they lie, it’s a crime.
The Oath or Affirmation of the Juror
Once the jury is selected, the jurors take another oath or affirmation. Oaths and affirmations vary from place to place, but basically, jurors make a solemn, legally binding promise to render a true verdict based upon the evidence and the law.
In some jurisdictions, this oath or affirmation includes not coming to any conclusion about the case until all the evidence is in. Jurors who have made casual remarks such as, "Well, it sure sounds like he's guilty, doesn't it?" before all the evidence comes in have found themselves in very serious trouble. Make no mistake: judges treat this oath as a very serious matter.
A juror who promises to apply the law, but then chooses to disregard the law, commits a crime.
Pretty much every judge on the bench would agree that disregarding the judge’s instructions is a serious offense. When the judge issues the instructions, the instructions have undergone considerable review. Typically, all parties have been afforded an opportunity to propose instructions having preferred wording. All parties have been afforded the opportunity to submit briefs and legal arguments concerning the substance of the instructions or the wording. Most judges spend considerable effort on the instructions, so that the jury will be told what the law is clearly and accurately and in accordance with legislative directives and in accordance with decisions of appellate courts.
Accordingly, judges are not okay with jurors deciding to disregard the instructions. A hell of a lot of work goes into those instructions. It is no exaggeration to say that the nation is a nation governed by laws, not individuals; and that the judicial process is set up, in large part, to assure that those instructions are in accordance with those laws. An individual who chooses to disregard the law is expressing disregard for the judicial process.
And no defense lawyer would dare argue to a jury: “Hey, you don’t have to follow the judge’s instructions if you don’t want to.” As mentioned in sources cited in JoshuaBranch’s own essay, juries are not to be told that they have the right to acquit a defendant under any circumstances regardless of the applicable law or proven facts.
Does Jury Nullification Lead to Better Laws?
Jury nullification produces no prospective legal effect at all. It does not strike down a statute. It does not form any precedent. It has no legal impact beyond the particular case at hand. No subsequent defendant can use a previous defendant’s acquittal as a defense. No record is made of why the jury did what it did.
Instances of jury nullification, and instances where juries follow the law but reasonably interpret the judges instructions in the defendant’s favor as described above, do produce at least one positive effect. They put prosecutors on notice that enforcing a particular law can be difficult to do. This is a practical effect, not a legal one. Prosecutors have limited resources, so they generally don’t want to waste resources pursuing charges that they are unlikely to win. But this does not change the law nor remove the law from the books.
Have We Seen Nullification Recently?
One of the most significant legal proceedings of the millennium involved a sort of jury nullification… but not exactly.
The case in question was the second impeachment and trial of Donald John Trump.
A few days before his term expired, Trump was impeached (formally accused of an offense) by the United States House. Trump was formally charged with incitement of insurrection. A trial in the Senate followed promptly, but by the time the Senate was ready to conduct its trial, Trump was out of office. Less than a week after Trump’s term ended, Republicans made an effort to prevent the trial as unconstitutional, on the grounds that Trump was no longer in office. The argument was unsuccessful.
Thus the law of the case was that Trump could constitutionally be convicted, even though he was out of office.
The trial proceeded. The Senate was to act as a jury in the case… sort of. Although the vote was 57 guilty votes to 43 not guilty, Trump was found not guilty. A guilty verdict required at least 67 votes.
Now, in an ordinary criminal case, questions concerning the constitutionality of a law are presented exclusively to the legal authority, that is, the judge. Constitutional questions are never submitted to a jury. If the judge agrees that the law is unconstitutional, then the case does not go the jury at all. If, on the other hand, the judge determines that the law is constitutional, then the jury is not given license to second-guess the judge's decision on this point. Juries have neither the education nor the experience to rule on questions of constitutional law. Juries are fact-finding bodies, not law-making bodies. That is not a criticism of juries; it is merely a reflection of reality. When a judge rules on a serious constitutional question, there are typically hours of research that are required, involving the reading of several previous decisions. There is also an analysis in which the judge determines whether the previous decisions are similar or dissimilar to the case before the bench.
Juries do none of the research or the analysis. So juries are never asked to rule upon the constitutionality of a law.
As I say, this is the practice in an ordinary criminal case.
In Trump’s second trial, however, the Senate did not take an oath like ordinary jurors take. Every senator solemnly swore "that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States, now pending, I will do impartial justice according to the Constitution and laws, so help me God."
Incredibly, some senators took this oath after publicly declaring that they would vote “not guilty” regardless of what the law was or what the evidence showed.
Even more incredibly, after Trump was declared “not guilty,” Senate Minority Leader Mitch McConnell (R-Ky.), basically came right out and said that Trump really was guilty on the evidence. "There's no question, none, that President Trump is practically and morally responsible for provoking the events of the day," McConnell said. McConnell based his own “not guilty” vote not upon the law as applied to the facts (as a juror would be bound to do) but because he personally disagreed with the law of the case.
Even though the Senate had formally ruled as a matter of law that the Constitution did warrant a trial, McConnell voted in favor of Trump because he disagreed with that ruling.
Now, this stinks a lot like jury nullification, and it resembles a juror overruling a judge on a legal point; but keep in mind that McConnell’s oath was unlike the oaths taken by typical jurors. McConnell’s oath obligated him to act according to the Constitution as he saw it. Nevertheless, McConnell seemed to set, shall we say, a questionable example.
Prospects for Future Jury Nullification
Jury nullification is a perfectly legitimate concern for prosecutors in the upcoming criminal prosecutions of Trump. It would not be a surprise if prosecutors specifically ask prospective jurors about it. Trump supporters would not be excluded from the juries automatically, but they may be asked whether they think Trump has been treated unfairly. And they may be asked whether they would apply the law that the judge gives them, whether they agreed with it or not. And they may be further asked whether they would have the strength of character to return a verdict of guilty if the evidence supported it, beyond all reasonable doubt. And they may even be specifically asked about their views on jury nullification.
Do not be surprised if Trump supporters start to urge prospective jurors to commit jury nullification. They will be, very likely, urging prospective jurors to commit a crime.
The fun will really begin if Trump himself urges it.