Jury Nullification: A Constitutional Tool for Defense Attorneys or Anarchy Incarnate?

Controversy follows jury nullification everywhere in criminal law.  The power that a jury has to refuse convicting a defendant, even when the prosecution has provided evidence beyond a reasonable doubt, understandably does not bode well with many judges and prosecutors.  Jurors have the power to nullify because courts cannot overturn a not guilty verdict since this would violate a defendant’s constitutional right to a jury trial.[1]  During O.J. Simpson’s trial, discussion of jury nullification stood at the forefront as Simpson’s defense attorney encouraged the jury to acquit Simpson even if they found him to be guilty so the jury could send a message to the Los Angeles Police Department.[2]  Nullification has also appeared in cases where prosecutors charge abused wives for the murder of their abusive husbands, in cases where minors are involved in drug possession or distribution of narcotics.[3]  The question of nullification appeared in other high profile cases, like the case of former D.C. mayor Marion Barry.  Barry was convicted of only one minor count out of the fourteen charges against him by an African-American jury when he was caught on tape smoking crack cocaine, even though the trial judge in that case commented that the prosecutor has a very strong case against him.[4]

New Hampshire has taken a stance on jury nullification with a 2012 law that explicitly allows defense attorneys to tell juries about nullification.  This law led to more New Hampshire defense attorneys urging juries to acquit in cases where the jury finds the law to be overly harsh or unfair.  Advocates praise New Hampshire’s efforts to revive nullification as a way to cut down on overly aggressive prosecutors.  Critics, like the National District Attorneys Association Executive Director Scott Burns, consider nullification to be extremely dangerous because it allows juries to circumvent the law which erodes the ability of laws to guarantee order in society.

Some New Hampshire criminal defense attorneys argue that the existing law does not go far enough because it does not require judges to instruct juries on their power to nullify.  By leaving the decision to instruct on nullification to the discretion of the trial judge, New Hampshire defense attorneys argue that it is much more difficult to include nullification in an argument for acquittal.  A bill introduced this January in the New Hampshire house would require trial judges to instruct juries that they not only have the option to acquit when they have reasonable doubt of a defendant’s guilt, but also when they disagree with the law that indicts a defendant.  It is unclear whether the bill will become law, but this begs the question, how do courts around the country feel about jury nullification?

In the 1895 Supreme Court decision in Sparf v. United States, the Court held that federal judges were not required to instruct jurors on their ability to nullify laws, citing that it would bring confusion into the administration of criminal law since it would lead to the jury not only being the trier of facts, but also of law.  The Court held in Sparf that allowing a jury to make this decision hinders a court’s involvement in matters of law, leaving these matters to untrained jurors.  In the Second Circuit’s decision in United States v. Thomas, the court recognized that nullification can be a form of civil disobedience and gave the example of juries acquitting people charged under fugitive slave laws.  Additionally, the Thomas court denied that juries reserve the right to nullify convictions and describes the practice as a violation of a jury’s duty to follow the law as instructed by the court.  However, even though the court in Thomas was critical of jury nullification, it noted that inquiries on the subject cannot be overly expansive in order to protect jury secrecy and protect juries from intimidation.  Even though the Second Circuit has reservations about the usefulness and ethics of nullification, it held that inquiries into whether a juror is engaging in the practice should be limited.  Other courts around the country have prohibited defense attorneys from informing juries of their power to nullify, circumventing this potential tool for defense attorneys.

New Hampshire’s move to explicitly include nullification in criminal cases does not in any way reflect how the rest of the country will treat this controversial issue in the future.  Assuming that the proposed bill that requires judges to include nullification in jury instructions does not pass, the current jurisprudence in New Hampshire allows judicial discretion in these instructions, thereby limiting how many nullification instructions will reach juries across the state.  Without a bill that mandates this instruction, it is not only up to the judge if nullification instructions reach the jury, but also up to defense attorneys to decide whether they want to use nullification as a tool to defend their clients.  Critics would argue that the ethical implications of nullification are too great to allow jury instructions on the subject and that the rule of law would be eroded if juries decide cases based on their personal opinions rather than what the law mandates.  The Second Circuit in Thomas cited hung juries in lynching cases in the South where white jurors acquitted white defendants regardless of the evidence presented as an example of nullification having a real negative effect on the rule of law.  Would a zealous defense attorney be unethical if she decides to use jury nullification as a legal device in her client’s defense?  Advocates, like former federal prosecutor and George Washington law professor Paul Butler, argue that juries, especially African-American juries, have the moral duty to acquit defendants if they find the law is unfair and sending the particular defendant to prison would ultimately harm the community more than help it.[5] 

In a 2011 New York Times Op-Ed article, Butler criticized federal prosecutors who charged Julian Heicklen, a retired chemistry professor, with jury tampering for providing information about jury nullification outside the federal courthouse in Manhattan.  Butler explains that nullification is premised on the idea that ordinary citizens, not government officials, should decide whether a person should be punished.  He states that proponents of the doctrine go as far back as John Adams and John Hancock.  Following Butler’s logic, defense attorneys who attempt to inform the jury of their power to nullify are not only properly advocating for their client, but also leaving justice in the hands of people who are more aware of what is best for their community, rather than leave the implementation of justice up to legislators who might not be representative of their community.  The case against Mr. Heicklen for jury tampering was eventually dropped as the judge held that she would not stretch the interpretation of the jury tampering statute to cover speech that is not intended to influence the actions of a specific juror in a specific case.

Regardless of whether New Hampshire will decide to require its judges to instruct juries on their power of nullification, the doctrine will remain a controversial topic in the eyes of many prosecutors, judges, and even some defense attorneys.  Last October, a billboard appeared in the Judiciary Square Metro of D.C., where prospective jurors exited and could see the words “Good jurors nullify bad laws.”  This billboard is but one aspect of a growing national campaign to encourage jurors to acquit defendants when they disagree with the law.  Spear-heading this campaign is the Fully Informed Jury Association which also lobbied for New Hampshire’s current jury nullification law and the bill that was introduced earlier this year.  Whether this organization will be successful in pushing other state legislatures to pass similar laws that explicitly allow for nullification instructions is unclear, but, if this is in fact part of a growing national consensus that some laws unduly implement harsh punishments for “victimless” crimes then we can expect to see more states following New Hampshire’s guidance. 

Practitioners should be aware of their prospective jurisdictions and how they usually treat jury nullification.  Additionally, defense attorneys in jurisdictions that are friendly to nullification (or, at least, not hostile to the practice) like New Hampshire can find themselves in a difficult situation.  In jurisdictions that allow nullification instructions, defense attorneys would have to balance the interests of their client and the interests of the community when deciding to inform the jury of their power to nullify.  In cases of non-violent offenders, defense attorneys have a much easier time coming to a decision; however, in cases of egregious violent offenders, this decision can be harder to make.  Nevertheless, by failing to inform the jury of nullification in jurisdictions where the practice is accepted, defense attorneys might be in violation of their ethical duty to zealously advocate for their client.  It will be interesting to see whether New Hampshire will pass the bill that requires judges to inform juries on their power to nullify and the series of legal and ethical implications that will follow.

Luis Asprino

Staffer, Criminal Law Practitioner

Image by W.S. Gilbert (d. 1911), via Wikimedia Commons.

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[1] Stephen A. Saltzburg & Daniel J. Capra, American Criminal Procedure: Cases and Commentary, 1233 (9th ed. 2010).

[2] Id.

[3] Id.

[4] Id. at 1236.

[5] See Paul Butler, Racially Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995).