Jury Nullification - Background

Background

Jury nullification is a de facto power of juries. Judges rarely inform juries of their nullification power. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors' motivations during or after deliberations. A jury's ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition (in some countries) on retrying defendants after an acquittal (see related topics res judicata and double jeopardy).

Jury nullification is the source of much debate. Some maintain that it is an important safeguard of last resort against wrongful imprisonment and government tyranny. Others view it as a violation of the right to a jury trial that undermines the law. Some view it as a violation of the oath sworn to by jurors. In the United States, some view the requirement that jurors take an oath to be unlawful in itself, while still others view the oath's reference to "deliverance" to require nullification of unjust law: "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help God." United States v. Green, 556 F.2d 71 (D.C. Cir. 1977). Some fear that nullification could be used to permit violence against socially unpopular factions. They point to the danger that a jury may choose to convict a defendant who has not broken the letter of the law. However, judges retain the rights both to decide sentences and to disregard juries' guilty verdicts, acting as a check against malicious juries. Jury nullification may also occur in civil suits, in which the verdict is generally a finding of liability or lack of liability (rather than a finding of guilty or not guilty).

Nevertheless, there is little doubt as to the ability of a jury to nullify the law. Today, there are several issues raised by jury nullification.

• First, whether juries can or should be instructed or informed of their power to nullify.
• Second, whether a judge may remove jurors "for cause" when they refuse to apply the law as instructed.
• Third, whether a judge may punish a juror for exercising the power of jury nullification.
• Fourth, whether all legal arguments, except perhaps on motions in limine to exclude evidence, should be made in the presence of the jury.

In some cases in the United States, a stealth juror will attempt to get on a jury in order to nullify the law. Some lawyers use a shadow defense to get information entered into the record that would otherwise be inadmissible hoping that evidence will trigger a jury nullification. A notable contemporary example of this tactic was the claim by the defense in the Roger Clemens perjury trial to have the charges against Clemens dismissed due to "prosecutorial misconduct", i.e. that the prosecution intentionally introduced video evidence which Judge Reggie Walton had ruled inadmissible, for the purposes of getting, in the words of the defense, "a second bite at the apple", due to the prosecution's alleged poor performance. The introduction of the tainted evidence caused a mistrial after only two days. The judge denied the defense's motion but noted his strong displeasure with the prosecution.,