Resilience

Nullifying the Law vs. Nullifying the Jury

Should (and do) jurors disregard the law?

Posted May 9, 2012

A federal judge in New York recently dismissed charges against Julian P. Heicklen, who had been charged with jury tampering. Jury tampering? Those unfamiliar with the case might assume that Mr. Heicklen must be a mob figure who had committed some egregious act like bribing or threatening jurors to obtain a verdict favorable to himself or an associate. In fact, Mr. Heicklen, an 80-year-old retired chemistry professor, seems about as far removed from a mobster as one can get; and his actions were much more benign. All he did was stand outside the federal courthouse in Manhattan with a “Jury Info” sign and hand out pamphlets supporting jury nullification.mThe pamphlets had a picture of the Statue of Liberty on the cover and the title “Your Jury Rights: True or False?”

So why were his actions so dangerous and, according to federal prosecutors, criminal? Jury nullification is the intentional disobedience of a jury in disregarding the law; by nullifying, the jury can reject laws that it considers unjust. It has been invoked to explain juries’ failure to convict defendants, despite overwhelming evidence of their guilt, in cases ranging from drug offenses and draft dodging to euthanasia and battered victims who kill their abusers. It has also been used to explain the failure of all-White juries, throughout the 19th and much of the 20th century and especially in the American South, to convict White defendants of crimes against Blacks (e.g., lynching). According to most in the criminal justice system, nullification devalues the law and is an invitation to anarchy; whereas others (a minority) see it as a way for jurors to fulfill their role as the “conscience of the community.” Thus, it boils down to whether juries should be able to nullify the law, or courts should nullify this component of the jury’s considerable power and discretion.

The courts’ response to the nullification controversy has generally been to affirm the jury’s power to nullify the law, while withholding it as an express right. In practice, this means that judges will almost never instruct the jury that they are free to disregard the law; but if the jury disregards the law on its own initiative, then the verdict stands (importantly, this is true only if the jury acquits when the evidence clearly favors conviction, because of the constitutional provision against double jeopardy; if the jury convicts when the evidence clearly favors acquittal, then the judge can, and should, reject the verdict and acquit).

There are two critical empirical questions in all of this is: How often do juries nullify? And would juries nullify more often when they are explicitly told they can? The first question is nearly impossible to address. Although there are numerous cases where defendants have been acquitted in the face of seemingly compelling evidence against them, it is possible that the jurors in those cases either misunderstood the law or found the evidence less compelling than other observers. In our own (unpublished) research, using a euthanasia case, we found that no mock jurors acquitted the defendant—a doctor charged with deliberately administering an overdose to a terminally ill patient, which he admitted he had done—when they understood the law and believed the prosecution had proved each element of the crime beyond a reasonable doubt. In contrast, plenty of mock jurors did acquit the defendant, but in doing so, they either misunderstood the law or found that the evidence was not strong enough to support a guilty verdict. This result suggests that genuine nullification—that is, flagrantly disregarding the law despite understanding it and reaching a verdict contrary to one’s own assessment of the evidence—is a low base-rate event.

In this same study, we also found that explicitly instructing jurors on their right to nullify did not make them more likely to do so. Other research, however, has found that mock jurors instructed on nullification are more likely to acquit, arguably—though not necessarily—because they are disregarding the law. If a nullification instruction affects juries’ verdicts—whether it truly leads them to ignore the law, or simply makes them less likely to convict—then the courts are right to be leery of nullification. However, if, as our research suggests, nullification rarely occurs, then it might be much ado about nothing. If Mr. Heicklen wants to spend his days touting jury nullification, more power to him.

[I am grateful to Joe Hamm for his contributions to the research described above and his thoughtful insights on the topic.]