Etymology & Origins: 'Jury' derives from Anglo-French 'juree' (an oath), from Latin 'jurare' (to swear). 'Nullification' comes from Latin 'nullificare' (to make nothing), from 'nullus' (none) + 'facere' (to make).
Jury nullification exists as a practical consequence of the criminal jury's unreviewable power to acquit. Because an acquittal cannot be appealed, and jurors cannot be punished for their verdict, a jury that chooses to acquit against the evidence effectively nullifies the law. Courts refuse to inform jurors of this power, and judges routinely instruct that jurors must follow the law as given. During voir dire, prospective jurors who express intent to nullify are typically removed for cause. Defense attorneys must navigate carefully, as explicitly arguing for nullification may result in a mistrial or sanctions.
Judge: "Ladies and gentlemen, you must follow the law as I instruct you, regardless of whether you agree with that law. You have taken an oath to do so."
Attorney: "Your Honor, the defense appears to be arguing that the jury should disregard the law." Judge: "Counsel, approach the bench. I will not permit arguments encouraging jury nullification in my courtroom."
Prospective Juror: "I don't believe marijuana should be illegal, and I wouldn't vote to convict regardless of the evidence." Attorney: "Your Honor, challenge for cause."
Students sometimes believe jury nullification is a constitutional right that attorneys may freely advocate. In fact, while juries have the unreviewable power to nullify, courts consistently hold there is no right to do so, and explicit advocacy of nullification is generally impermissible.
United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972)
Acknowledged the jury's inherent power to nullify but held that courts have no obligation to inform jurors of this power, as doing so could undermine the rule of law.
Sparf v. United States, 156 U.S. 51 (1895)
Established that while juries have the power to decide both law and fact in criminal cases, judges are not required to instruct them on this prerogative.
United States v. Thomas, 116 F.3d 606 (2d Cir. 1997)
Held that a juror who intends to acquit regardless of the evidence may be dismissed for cause during deliberations, though courts must proceed cautiously to avoid intruding on deliberative secrecy.
What is jury nullification?
Jury nullification occurs when a jury acquits a defendant despite believing the evidence proves guilt beyond a reasonable doubt, because the jurors disagree with the law, its application in the case, or the potential punishment. While juries have the power to nullify, they are not formally instructed about this power.
Is jury nullification legal?
The jury's power to nullify is a byproduct of two constitutional principles: juries cannot be punished for their verdicts, and acquittals cannot be appealed. However, judges are not required to inform jurors of this power, and in most jurisdictions, defense counsel is prohibited from explicitly arguing for nullification.
Can a juror be removed for planning jury nullification?
Courts have upheld the removal of jurors during deliberation who refuse to apply the law as instructed, though the line between legitimate disagreement about reasonable doubt and nullification intent is difficult to draw. A juror cannot be removed for simply voting "not guilty," but a stated intention to disregard the law may justify removal.
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The verdict is the formal decision or finding made by a jury (or judge in a bench trial) on the fact...
An acquittal is a legal judgment that a criminal defendant is not guilty of the charged offense. An ...
Jury instructions (also called jury charges) are the legal directions given by the judge to the jury...
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