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Guilty By Law, And Not By Justice? How Jurors Can Nullify Instead

Under the Bill of Rights, jurors have the power to nullify laws they think are unfair. How does this work, when has it worked, and when is it appropriate to use?

While law is usually black and white, wrong or right, guilty or not guilty, jury nullification is one legal area that adds conscience into the equation – giving a jury the ability to return a “not guilty” verdict despite the defendant being guilty in the eyes of the law, according to the UMCK School of Law.

In the case of jury nullification, a law can essentially be nullified if the jury believes it is immorally or wrongfully applied to the person charged. Such a nullification means that the verdict can’t be questioned by any court, nor can they be put on trial for the same charge again.

Why can a jury say no to law?

Laws are imperfect. According to the Fully Informed Jury Association (FIJA), the primary function of the independent juror is not to dispense punishment, but in addition, judge the laws at hand, and protect citizens if those laws are corrupt or unfair.

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Many believe that jurors must only judge defendants, however, the right of trial by jury means that law is brought before The People for a reason – so that in case of injustice, jurors can refuse to convict by moral reasoning.

When has it been used in the past?

One of the most notable accounts of jury nullification was in 1733 when German immigrant/journalist Peter Zenger was put on trial for libel, or publishing information opposed to the government – in this case, accusing William S. Cosby (no relation to Bill Cosby) of corruption.[contextly_auto_sidebar id=”WKr3XPpmxfNxkikB4Jxg1KXPbXMsARh9″]

Zenger’s defense made it so that the jury returned a not guilty verdict, not for the cause of law, but for that of liberty, USHistory.org tells us.

Since then, jury nullification has been used in the 1800s against the Fugitive Slave Law, in the Prohibition era to nullify 60% of cases, and more recently, to acquit mercy killers, drug offenders, and men tried for gay sex when it was illegal pre-1990.

Where it gets controversial

While jury’s by law have the right to nullification, the awareness and use of this power waned tremendously after 1895, when the Supreme Court ruled that jurors should not be informed of the right.

In addition, though jury nullification can be used to right unjust laws, by the same principles it can be used to nullify just laws due to jury bias – for example, as NPR notes, cases in the South involving sexual assault, crime against minorities, or excessive police force. In a case in 1955, men got away with murder of a 14-year-old boy due to racist nullification.

The power becomes extremely relevant today in consideration of harsh sentencing for nonviolent drug crimes, many of which are considered biased. This gets stickier when considering the laws put in place against informing juries of nullification powers by prosecuting those who do so with “jury tampering,” according to the NY Times.

Overall, high incarceration rates for nonviolent crimes suggest jury nullification could be a temporary, and even necessary, solution if and when there is a belief that certain laws should be re-examined or changed.

Then again, it remains unclear whether jury’s moral compass is always straighter than the law’s, and what can be done in cases that it isn’t.

Updated. Nullify cover photo courtesy of Wikileaks Mobile Information Collection Unit via Flickr. Modified by Curiousmatic. 

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