Jury nullification

Based on Wikipedia: Jury nullification

In 1670, William Penn stood trial in London for the crime of preaching Quakerism to a crowd on the street. The evidence was overwhelming—Penn freely admitted he'd done it. The judge demanded a guilty verdict. But the jury refused. Again and again, the judge sent them back to deliberate. Again and again, they returned with the same answer: not guilty. Furious, the judge locked the jurors in a cell without food, water, or chamber pots for two nights. Still they wouldn't budge. The judge fined them and threw them in prison. One juror, Edward Bushel, appealed his imprisonment all the way to the Court of Common Pleas, which ruled that jurors could never be punished for their verdicts.

This was jury nullification in action—one of the most controversial and least understood powers in the legal system.

What Jury Nullification Actually Is

Here's the essence of it: a jury can legally return a "not guilty" verdict even when they believe the defendant clearly broke the law.

That sounds like a malfunction. It's not. It's a feature—or at least an unavoidable consequence of two foundational rules that nearly all common law systems share. First, jurors cannot be punished for the verdict they deliver. Second, in most jurisdictions, a person who's been acquitted cannot be tried again for the same offense. Put these together and you get an escape hatch built into the system itself.

The jury might nullify because they think the law is unjust. They might believe the prosecutor is applying the law unfairly in this particular case. They might feel the punishment would be wildly disproportionate to what the defendant actually did. Or they might simply be fed up with the criminal justice system and express that frustration through their verdict.

Importantly, nullification isn't a formal legal doctrine. Judges don't instruct juries about this power. In fact, judges typically instruct them to do the opposite—to apply the law as explained to them, regardless of their personal feelings about it. But instructions and reality are different things. The power exists because there's no mechanism to prevent it.

The Historical Weight of Nullification

The practice has shaped history in ways most people never learn about in school.

Before the American Civil War, juries in Northern states routinely refused to convict people who helped enslaved people escape or who were fugitive slaves themselves. The Fugitive Slave Act of 1850 required citizens to assist in capturing runaway slaves and punished anyone who helped them. Many Northern juries simply wouldn't enforce it. They looked at defendants who had committed technical violations of federal law and said, effectively, "We don't care. Not guilty."

During Prohibition, juries frequently acquitted bootleggers despite clear evidence of guilt. The law said one thing; the community said another. When enough juries refuse to enforce a law, that law becomes unenforceable in practice—even if it remains on the books.

The Vietnam War saw similar patterns. Young men who evaded the draft faced prosecution, but sympathetic juries sometimes let them walk free. The law was the law, but the war was unpopular, and juries have never been mere rubber stamps.

The Dark Side

There's a reason jury nullification makes legal scholars nervous.

The same power that freed people who helped enslaved Americans escape was also used to free white men who murdered Black Americans. Throughout the Jim Crow era, all-white Southern juries routinely acquitted defendants who committed racial violence, despite overwhelming evidence of guilt. Emmett Till's murderers walked free because of jury nullification. So did many others whose names history has largely forgotten.

This is the inescapable problem: nullification is a tool, and tools can be used for good or evil. A jury that refuses to convict someone for helping an escaped slave and a jury that refuses to convict someone for lynching are exercising exactly the same power. The mechanism is identical. Only the moral valence differs.

This is why judges today actively try to prevent nullification. They instruct juries that their job is to determine facts and apply the law as given to them—not to make policy judgments about whether the law should exist. Courts can remove jurors "for cause" if they indicate an unwillingness to follow the law. Defendants and their attorneys are generally forbidden from explicitly arguing for nullification.

Why the Power Exists at All

To understand jury nullification, you have to understand why we have juries in the first place.

The Magna Carta of 1215 established that no free person could be punished except "by the lawful judgment of his peers, or by the law of the land." This wasn't about efficiency—it would obviously be faster to let a single judge decide everything. The point was to insert the community between the individual and the power of the state.

A single judge might be corrupted, intimidated, or simply too aligned with established power. A panel of randomly selected citizens from the community provides a check on that. They bring common sense and community standards into the courtroom. They can recognize when the law has drifted from justice, even if they can't always articulate why.

This is the tension at the heart of the system. On one hand, we want laws to be applied consistently and predictably. On the other hand, we've built in a mechanism—the jury—that can override those laws in individual cases. We've essentially institutionalized a kind of controlled chaos.

The English Roots

Long before William Penn's trial, English juries wrestled with the question of how much power they truly held.

In the early days, juries were mostly compliant. Judges had ways of ensuring they got the verdicts they wanted. They could pack juries with favorable jurors. They could use "writs of attaint," which allowed a second jury to retry a case if a judge thought the first jury got it wrong—and the first jury could be imprisoned or fined if overruled.

But occasionally, juries pushed back. In 1554, a jury acquitted Sir Nicholas Throckmorton of treason against Queen Mary. The jurors were severely punished for their defiance, but the verdict stood.

The most dramatic early case came in 1649 with the trial of John Lilburne, a radical political agitator who had been charged with seditious libel for criticizing Oliver Cromwell's government. Lilburne made an argument that sounds remarkably modern: the jury, he said, had the right to judge not just the facts but the law itself. The judge called this "damnable, blasphemous heresy."

The jury acquitted him anyway.

A contemporary account describes what happened next: the public in the judgment hall erupted in cheers so loud that, according to multiple witnesses, nothing like it had ever been heard in the Guildhall before. The cheering and waving of caps went on for half an hour while the judges sat "turning white and red in turns." That night, bonfires were lit throughout London.

Four years later, Lilburne was on trial again. This time, he explicitly asked the jury to acquit him if they found the death penalty "unconscionably severe" for his alleged crime. The jury returned with a creative verdict: they found him "not guilty of any crime worthy of death." They couldn't bring themselves to say he was innocent, but they refused to let the state kill him.

Bushel's Case: The Turning Point

The trial of William Penn in 1670 crystallized the issue once and for all.

Penn, who would later found Pennsylvania, was accused of unlawful assembly for holding a Quaker religious meeting. When the jury refused to convict despite clear evidence that Penn had indeed held the meeting, the judge attempted to coerce them. He confined them without food, water, or toilet facilities. When they still wouldn't yield, he fined each juror and imprisoned them until they paid.

Juror Edward Bushel refused to pay. He challenged his imprisonment in the Court of Common Pleas, and Chief Justice Vaughan issued a ruling that fundamentally shaped Anglo-American law: jurors cannot be punished for their verdicts. Period.

This is why nullification exists today. It's not because any statute grants jurors the power to ignore the law. It's because Bushel's Case established that there's no lawful way to force them not to.

Scotland's Unique Solution

Something unusual happened in Scotland in 1728 that still affects their legal system today.

A man named Carnegie of Finhaven accidentally killed the Earl of Strathmore. Under Scottish law at the time, juries were supposed to determine only whether the facts had been proven—not whether the defendant was guilty of a crime. If Carnegie had killed the Earl (and he obviously had), the jury was supposed to return a "proven" verdict, which would lead to his execution.

But the killing was an accident. The jury faced a terrible choice: return a "proven" verdict and send an innocent man to his death, or lie about the facts to save him.

They chose a third option. Asserting what they called their "ancient right" to judge the whole case, they returned a verdict of "not proven."

This ad hoc solution became permanent. To this day, Scottish juries have three options: guilty, not guilty, or not proven. The third verdict—sometimes darkly called "not guilty, but don't do it again"—allows juries to express doubt without fully acquitting. It's a unique workaround that acknowledges the reality of jury nullification while giving it a formal structure.

The American Twist

When the American colonies broke from England, they brought jury nullification with them—and celebrated it.

Colonial juries had used nullification to resist enforcement of unpopular English laws. The most famous example was the 1735 trial of John Peter Zenger, a printer charged with seditious libel for publishing criticism of the colonial governor. Under the law as it existed, truth was not a defense to libel. The jury ignored this and acquitted Zenger anyway, establishing a precedent for press freedom that would eventually be enshrined in the First Amendment.

The early American practice was strikingly different from today. All legal arguments were made in the presence of the jury. Jurors heard not just the facts but the same debates about legal interpretation that the judge heard. The idea was that ordinary citizens should understand the full context of the case they were deciding.

An 1839 court decision explicitly affirmed: "The defense can argue law to the jury before the court gives instructions."

That's almost unimaginable today. Modern American trials carefully separate legal arguments from the jury's hearing. Motions are submitted in writing and decided in chambers. Judges will declare mistrials if attorneys make legal arguments directly to jurors. The earlier practice of transparent legal debate in front of the jury has been "largely forgotten," as legal historians note—and judges now treat any reference to it as improper.

The Canadian Approach

Canada takes a middle path that illustrates how different legal systems handle the same problem.

Jury nullification does occur in Canada, but it's rarer and less final. Unlike in the United States, Canadian prosecutors can appeal acquittals—not on the grounds that the acquittal was "unreasonable," but on errors of law. This means a nullification verdict might be overturned on appeal, reducing its power as a tool of last resort.

Canadian judges also take active steps to prevent nullification. The Supreme Court of Canada has explicitly stated that trial judges have a duty to try to stop it from happening.

Yet nullification has still shaped Canadian law. The most famous example involves Henry Morgentaler, a doctor who openly operated abortion clinics in defiance of the Criminal Code. Throughout the 1970s and 1980s, prosecutors repeatedly charged him. Juries repeatedly acquitted him. Eventually, one of these nullification verdicts was appealed all the way to the Supreme Court, which struck down Canada's abortion law entirely.

Chief Justice Dickson, while ruling in Morgentaler's favor on other grounds, wrote a warning about nullification that captures the establishment view: "The contrary principle... that a jury may be encouraged to ignore a law it does not like, could lead to gross inequities. One accused could be convicted by a jury who supported the existing law, while another person indicted for the same offence could be acquitted by a jury who, with reformist zeal, wished to express disapproval of the same law."

The Modern Controversies

Today, jury nullification raises several thorny questions that courts continue to wrestle with.

Should juries be told about their nullification power? Currently, the answer is almost universally no. Judges instruct juries to follow the law, full stop. But some advocates argue this is a form of deception—telling jurors they must do something when legally they cannot be compelled to do so.

Can judges remove jurors who indicate they might nullify? This happens regularly. During jury selection, if a potential juror suggests they might not follow the judge's instructions, they can be dismissed "for cause." This effectively screens out people most likely to nullify.

What about "stealth jurors"—people who conceal their views during selection specifically to get on a jury and nullify? Some legal experts view this as jury tampering by the juror themselves. Others see it as civil disobedience in action.

And what of "shadow defenses"—where lawyers present information that's technically inadmissible, hoping it will trigger nullification even though they're forbidden from explicitly asking for it? This cat-and-mouse game continues in courtrooms across America.

The Ethical Core

Strip away the legal technicalities and you find a fundamental ethical tension: the conflict between democratic self-government and integrity.

When citizens serve on a jury, they typically take an oath. The exact wording varies, but it generally involves promising to render a verdict "according to the evidence." Some interpret this as ruling out nullification entirely—how can you follow your conscience about unjust laws while also promising to follow the evidence?

Others read the oath differently. The traditional formulation promises "true deliverance"—and what could be more true than refusing to participate in an injustice?

There's also an asymmetry worth considering. Defendants can benefit from nullification. Prosecutors, by contrast, cannot ask juries to convict someone who hasn't broken the law—that would require negating the presumption of innocence. This means nullification is inherently a one-way valve, always potentially benefiting defendants.

The system has some safeguards. Judges retain the power to overturn guilty verdicts that are contrary to law (though not acquittals). They can set aside convictions that appear to result from jury prejudice. But there's no corresponding check on acquittals rendered by prejudiced juries or those acting on nullification principles.

What Nullification Means for the System

A single nullification verdict affects only one case. But patterns matter.

When jury after jury refuses to convict people for the same offense, something larger is happening. The law may remain on the books, but it becomes effectively unenforceable. This is nullification's de facto power: a popular veto on legislation that the community rejects.

This can be seen as democratic legitimacy bubbling up from below, or as a dangerous breakdown of the rule of law—depending on your perspective and on which laws are being nullified.

Consider: if juries had consistently enforced the Fugitive Slave Act, the institution of slavery would have had one fewer crack in its legal armor. If juries hadn't nullified Prohibition violations, the amendment might have lasted longer and the social costs might have been different. The law says one thing; the people, acting through their most direct participation in the legal system, sometimes say another.

The Unresolved Question

Jury nullification sits in a strange legal limbo—not quite illegal, not quite legitimate, not quite acknowledged, but undeniably real.

Courts discourage it. Judges instruct against it. Legal ethics generally frown on it. But it cannot be prevented, and it cannot be punished. The power exists because of what it would cost to eliminate it: we would have to allow punishment of jurors for their verdicts, which would fundamentally transform the jury from an independent check on state power into a mere rubber stamp.

So the uncomfortable truth remains. Every time a jury convenes, twelve ordinary citizens hold a power that no judge can strip from them. They can follow the law as instructed. Or they can follow their consciences. The choice—and the responsibility—is entirely theirs.

Edward Bushel knew this in 1670, when he chose imprisonment over complicity in what he saw as injustice. The jurors who freed people accused under the Fugitive Slave Act knew it. The jurors who let murderers walk free during Jim Crow knew it too.

The power itself is morally neutral. What jurors do with it—that's where the moral weight falls.