Jury Nullification OR What’s a Jury’s Prerogative?

The concept of jury prerogative stems back to Bushell's Case (1670) 124 Eng.Rep. 1006, when the court determined that a criminal jury could not be punished for an incorrect verdict.

Historic instances of the jury's exercise of its prerogative to disregard evidence and instructions of the judge are the 18th century acquittal of Peter Zenger of seditious libel, and the 19th century acquittals in prosecutions under the fugitive slave law. A 20th century example is the purchase during Prohibition of alcoholic beverages.

Reflective opinions upholding the necessity for the jury as a protection against arbitrary action, such as prosecutorial abuse of power, stress fundamental features like the jury "common sense judgment" and assurance of "community participation in the determination of guilt or innocence." A prosecutor given to unworthy motives could likely establish some basis in fact for bringing charges against anyone he wants to book, but the jury system operates properly when the jury does not convict when they empathize with the defendant, as when the offense is one they see themselves as likely to commit, or consider generally acceptable under the values of the community.

The existence of an irreversible power in the jury to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law. America's founding fathers John Adams said that it is the duty of a jury “to find the verdict according to its own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

Unfortunately, this determinative duty was dealt a blow by the United States Supreme Court in United States v. Battiste (1835), which supported the conception that the jury's function lay in accepting the law given to it by the court and applying that law to the facts, and Spark v. United States (1895) 156 U.S. 51, which respected the jury's role as significant and wholesome, but said that it was not to be given instructions that articulated a right to do whatever it wished.

The breadth of the continuing prerogative of the jury, however, perseveres, as appears from the rulings permitting inconsistent verdicts. These reflect, in the words of Justice Holmes, an acknowledgment that "the jury has the power to bring in a verdict in the teeth of both law and facts," or as Judge Learned Hand said: "We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity."

It is unjust to withhold information on the jury power of "nullification," since conscientious jurors may come, ironically, to abide by their oath as jurors to render verdicts offensive to their individual conscience, to defer to an assumption of necessity that is contrary to reality.

The jury system has worked out reasonably well overall, providing "play in the joints" that imparts flexibility and avoid undue rigidity. An equilibrium has evolved — an often marvelous balance — with the jury acting as a "safety valve" for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law.

In a number of jurisdictions juries are made judges of the law in criminal cases, thus inviting them to dispense with the rules of law instead of finding the facts. The juror is made judge of the law not to ascertain what it is, but to judge of its conformity to his personal ideals and ascertain its validity on that basis. . . . It is significant that there is most satisfaction with criminal juries in those jurisdictions which have interfered least with the conception of a trial of the facts unburdened with further responsibility and instructed as to the law and advised as to the facts by the judge.

You may suppose that a jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. There is the informal communication from the total culture — literature (novels, film, and drama); current comment (newspapers, social media, and television); conversation; and, of course, history and tradition. The totality of input generally convey the idea of prerogative, of freedom in an occasional case to depart from what the judge says.

You see, judges know that jurors who recognize an ability to vote their conscience may be embarrassed at their failure to utilize their power to acquit. Requiring them to follow the law and not their conscience absolves them of true responsibility, so that when they return to the community which they have served, they can accurately put it to friends and neighbors that they were merely following the instructions of the court.

The courts want us to believe that a jury that feels strongly enough about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, will independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception supposedly confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law.

The difficulty is that the most conscientious of juries will in fact not exercise this option, and the least conscientious may. This is diametrically opposed to the purported intent of the justice system and unfortunately, yet systematically, perpetuates the all-too-familiar concept of unequal justice under the law.