Is Jury Nullification Legal?
Absolutely. Not only is jury nullification legal, it is a basic part of our justice system that is upheld by basic principles of the Constitution.
A Brief History of Jury Nullification
The idea that jurors should judge the law, as well as the facts, is a proud part of American history. The concept that jurors decide justice became an important part of American jurisprudence.
John Peter Zenger
The case of John Peter Zenger is one of the first recorded cases of jury nullification.
In 1735, John Peter Zenger, an American, was arrested and prosecuted for violating British law by publishing a pamphlet critical of the King. During trial, his attorney challenged the legality of the crimes for which his client was being prosecuted. It was one of the first times in American history in which a lawyer challenged the laws rather than the innocence of his clients. The jurors were stunned and didn't know how to, or even if they were allowed to, address whether the law itself was "legal."
At the end of the trial on August 5, 1735, the twelve New York jurors returned a verdict of "not guilty" on the charge of publishing "seditious libels," despite the Governor's hand-picked judges presiding. Zenger's attorney had successfully argued that Zenger's articles were not libelous because they were based on fact.
Zenger's victory is the first recorded in history that was certainly due to jury nullification. The case is still cited as a victory of justice through jury nullification.
The Fugitive Slave Act of 1850
Perhaps the most shining example of nullification occurred during the shameful time in US history when slavery was legal.
Before abolition is was a federal crime (a violation of the Fugitive Slave Act) to help slaves escape or to harbor them once they had escaped. People who helped slaves escape committed a federal crime. However, when persons were charged with violations of the law, Northern jurors sat in judgment of these "criminals." They would often acquit, even when the defendants admitted their guilt. Legal historians credit these cases with advancing the cause of the abolition of slavery.
Legal, but Secret
In a lecture on law at the Philadelphia College in 1790, James Wilson, signer of the Declaration of Independence and one of the six original Supreme Court Justices appointed by President George Washington, laid out the American perspective on the role of a jury:
Suppose that, after all the precautions taken to avoid it, a difference of sentiment takes place between the judges and the jury with regard to a point of law... What must the jury do? The jury must do their duty, and their whole duty. They must decide the law as well as the fact. This doctrine is peculiarly applicable to criminal cases, and from them, indeed, derives its peculiar importance.
Soon after, the Supreme Court reaffirmed Wilson's perspective. In Georgia v. Brailsford, a Supreme Court opinion issued in 1794, John Jay, America's first Chief Justice, made clear that a jury's duty includes determining the facts and weighing the justness of the law. He wrote to the jury that:
You, [the jury, have] a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy... [B]oth objects are lawfully, within your power of decision.
Since then, the Supreme Court has ruled on jury nullification only once. In 1895, in the case of Sparf v. United States, a criminal defendant appealed his conviction because the trial judge refused to allow the jury to challenge the judge's interpretation of the law The Supreme Court reaffirmed the "physical power" of juries to nullify, but held that federal judges need not inform jurors of their right to do so.
Since Sparf was decided, Indiana, Georgia, and Maryland have adopted statutes requiring that judges in criminal cases inform jurors of their capacity to nullify. However, in most jurisdictions, the law of Sparf remains the law of the land: Jurors have the ability to nullify, but they don't have the right to know of their ability.
