A Jury’s Right to Nullify
by Ellie Krieg of Grand Valley State University
I. Abstract Jury nullification is a widely debated topic among critics of the United States legal system. This paper discusses a jury’s right to nullify a verdict, as well as why jurors might decide to nullify a verdict. It will further look at whether jurors can and should be instructed of this right, along with arguments for why or why not they should receive such instructions. Finally, this paper will look at the effects of instructing the jury to nullify on the ultimate verdict given by the jury, including studies done to determine if such instructions actually do have any effect on the jurors’ decision. If the court recognizes the power and the right of jurors to nullify a verdict, it should allow them to be instructed as such in order to return a fair and just verdict.
II. Statement of Issue
A criminal jury is usually instructed to consider the law along with the facts presented to them in order to render a verdict (Horowitz, 1988). Members of the jury are asked to set aside their personal experiences and biases and look only at the evidence they are given. Often, when selecting a jury, prosecuting or defense attorneys will remove a potential juror if he or she demonstrates a bias that could affect his or her decision in the case. However, juries do have the power to look beyond the law and the facts and present a “not guilty” verdict in a case when they believe the defendant is actually guilty of the crime in question (Creagan, 1993). There are many reasons a jury might do this, and they will be discussed later. This power is referred to as jury nullification, which is described as “’the inherent right [of jurors] to set aside the instructions of the judge and to reach a verdict of acquittal based upon their own consciences, and the defendant has the right to have the jury so instructed’” (Creagan, 1993, p. 1101). Although less common, jurors can also nullify in the form of a conviction when they do not believe beyond a reasonable doubt that the defendant is guilty of the crime. This happens in cases in which jurors find the defendant to be “unacceptably deviant” (Edwards, 2006, p. 94). The topic of whether jurors should be allowed to nullify is often debated. Many believe that it is not up to the jurors to decide what laws they feel are just; their duty is simply to determine whether or not the law was broken. Furthermore, many critics argue over whether jurors should be instructed of their right to nullify a verdict. Jurors are often not aware of this right, and if they are, they could be misinformed. The jury instructions in some states inform jurors of this right, but other states’ instructions strictly state that jurors are to limit themselves to considering the law and the facts in question, setting their consciences aside. Jury instructions, and whether or not they inform jurors of the right to nullify, can have an interesting effect on the outcome of verdicts, and therefore, it is an important topic to address.
Jurors have the right to nullify a verdict, although some critics feel that they should not have this right. However, even if one disagrees with the idea of jury nullification, it is inevitably going to happen in some cases. Creagan states that “[r]egardless of one’s personal opinion of the concept of jury nullification, reality dictates that juries, in appropriate cases, are likely to nullify the law whether they are given permission to or not” (1993, p. 1102). Although, if jurors are not instructed of their right to nullify a verdict, they are often not aware of this right. Many believe that they are simply judges of fact, as they are frequently instructed. However, if they are told that their consciences can be a factor in the decision of the verdict and that they are also judges of the law, jurors could acquit for a variety of reasons: because they do not agree with the law in question, if they feel that the commission of the crime was justified in the given circumstances, if they feel the sentence is too harsh, if the victim is someone who jurors do not consider “worthy of protection” (King, 1998, p. 433), or if they do not feel that the law should be applied to the situation. Simply put, jurors will nullify “when they are unable, in good conscience, to condemn a person’s acts” (Creagan, 1993, p. 1151). However, it is important to note that jury nullification does not ultimately have any effect on substantive law, because the jury is not changing the law by nullifying the verdict in one case. This leads many critics to argue that it does not matter if juries are allowed to nullify or not, because it does not give them the power of changing legislation.
Jury nullification is not a concept that many common citizens are familiar with. However, a recent case in Oakland County, Michigan, brought up the concept of jury nullification when Nancy Grace, an American legal commentator, suggested that the jury might nullify the verdict. Jeffrey Pyne, a twenty-three year old man accused of murdering his mother, was indicted by a grand jury in October 2011 (Gundle-Krieg, 2012). Ruth Pyne’s body was found on the floor of their family’s garage in May 2011, when her husband, Bernie, and daughter, Julia, came home (Gundle-Krieg, 2012). Ruth had been beaten by a wooden two-by-four and stabbed in the neck sixteen times (Gundle-Krieg, 2012). Jeffrey Pyne was known in the community as an intelligent, caring man, but his mother had a history of mental illness and had even been arrested for physically abusing him in the past (Gundle-Krieg, 2012). He refused to move away for college because he wanted to protect his sister from his mother’s outbursts when she refused to take her medications (Gundle-Krieg, 2012). However, he was never angry or violent toward his mother, and did not hit his girlfriend back when she abused him (Gundle-Krieg, 2012).
Several months after the murder, Jeffrey Pyne was indicted by a grand jury in Oakland County on counts of first-degree murder (Gundle-Krieg, 2012). The Pynes lived in a small town where there was little crime, so police knew the culprit had to be someone who knew Ruth well (Gundle-Krieg, 2012). Bernie Pyne, Ruth’s husband, had an alibi that checked out, so Jeffrey was the prime suspect (Gundle-Krieg, 2012). Prosecutors did not investigate Bernie’s mistress as a suspect, and immediately went to Jeffrey because they figured he must have snapped after all those years of abuse (Gundle-Krieg, 2012). There was no DNA evidence or murder weapon found, but Jeffrey Pyne had blisters on his hands, which he claims he got from his job at an apple orchard (Gundle-Krieg, 2012). The other problem was Pyne’s alibi. He claims that he was at Diane Needham’s house, an elderly lady for whom he did household chores and yard work (Gundle-Krieg, 2012). Needham was out of town and therefore cannot prove or deny that Jeffrey was there, but he claims that he was planting lilac bushes in her yard at the time of the murder (Gundle-Krieg, 2012). Because no one saw him there or anywhere else when the murder occurred, and he had a motive, the grand jury determined that there was probable cause and issued an indictment (Gundle-Krieg, 2012).
Over a year later, Jeffrey Pyne’s case went to trial. Grace suggested that the jury, if they believed Pyne to be guilty, would likely nullify the verdict and decide to acquit. She stated that many of them would probably feel sympathy for the defendant because of his mother’s history of mental illness, and they might determine that if he had killed her, he had done so to protect his younger sister from his mother’s violent outbursts (Gundle-Krieg, 2012). She said that a jury could easily decide that the importance of Julia Pyne’s safety outweighed the harm done by committing the murder (Gundle-Krieg, 2012). Michigan jury instructions do not explicitly inform jurors of their right to nullify, so the jurors may not have been aware of this right. They returned a verdict of guilty of second-degree murder after only one day of deliberations (Gundle-Krieg, 2012). It is clear that even though jury nullification seemed like a possibility in this case, the jurors looked strictly at the law and the facts without allowing their consciences to influence their decision in order to determine that Pyne was guilty of the murder.
Can jurors be instructed of their right to nullify?
Jurors having the power to nullify is very different from having the right to do so. Whether or not they are legally allowed to nullify a verdict, jurors can decide to do so without revealing the cause for this decision. A jury can acquit a defendant through jury nullification while publicly saying they acquitted for another reason, such as a lack of evidence. However, some jurisdictions do recognize the right of a jury to nullify a verdict. While a defendant has a constitutional right to inform the jury of nullification through the use of jury instructions (Weinberg-Brodt, 1990), nullification instructions are not permitted in federal courts (Weinberg-Brodt, 1990). In United States v. Trujillo (1983), the Eleventh Circuit determined that defense counsel should not be permitted to argue for jury nullification, and that the jury’s only responsibility “’is to apply the law as interpreted and instructed by the court’” (Rubenstein, 2006, p. 968). “Modern case law overwhelmingly opposes informing juries of their power to nullify” (Morgan, 1997, p. 1134), including United States v. Dougherty and United States v. Sparf and Hansen, which will be discussed later. These two cases hold that a jury cannot disregard a judge’s instructions, and jurors are not permitted to decide questions of law (Morgan, 1997). Sparf and Hansen also established that jurors should not be given instructions that they are allowed to nullify, because not only is this power wrongful, but also because judges cannot control juries to prevent nullification from happening (Weinberg-Brodt, 1990). This reasoning essentially means that jurors do not have the right to nullify, although they still hold this power. United States v. Moylan followed the decision made in Sparf, denying the defendants permission to argue for nullification to the jury. The defendants argued that “’the jury’s power to acquit where the law may dictate otherwise is a fundamental necessity of a democratic system’” (Rubenstein, 2006, p. 971), and while the court stated that “’this power of the jury is not always contrary to the interests of justice’” (Rubenstein, 2006, p. 971), they ultimately held that the defendants lacked the right to instruct the jury of their nullification right. While federal court and any state courts do not allow for jury nullification instructions, there are some exceptions. The state courts of Maryland and Indiana both have standard jury instructions that declare that juries are to determine questions of both law and fact. The standard jury instruction in Maryland reads:
"Members of the Jury, this is a criminal case, and under the Constitution and the laws of the State of Maryland, in a criminal case the jury are the judges of the law as well as of the facts in the case. So that whatever I tell you about the law, while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury, and you may accept or reject it, and you may apply the law as you apprehend it to be in the case. (Morgan, 1997, p. 1135)
"While Maryland and Indiana are the only states to explicitly inform the jury of this right, almost half the states have introduced bills that would require judges to instruct juries of this power to “’vote their conscience’ in reaching a verdict, even when ‘technical guilt’ is clear” (Leipold, 1996, p. 255). Currently, these jury instructions are rare, but several states may be making the move toward embracing this power of the jury, and while most states do not automatically instruct the jury to nullify, some courts do allow the defendant to present an argument to the jury for nullification."
Should jurors be instructed of their right to nullify?
After the adoption of the Sixth Amendment, there was some doubt as to the jury’s right to judge the law. However, this doubt quickly disappeared when the Supreme Court decided Georgia v. Brailsford (1794) and determined that “juries have the right ‘to determine the law as well as the fact in controversy’” (Parmenter, 2007, p. 385). For many years after this decision, a jury’s right to nullification was not questioned. However, once Sparf was decided in 1895 and the Supreme Court determined that in the federal system, “there would be no right to jury nullification” (Creagan, 1993, p. 1132), there have been many arguments both for and against juries being instructed of their right to nullify. These arguments continued as United States v. Dougherty was decided in 1972, which was the first case to discuss jury nullification at length since Sparf, and the first case to examine a jury’s rights to be instructed about nullification. In this case, the defendants requested that the jury be specifically instructed of their ability to nullify the law, but the trial court refused, and the Court of Appeals upheld the decision. Judge Leventhal, who wrote the majority opinion, stated that he believed jurors already knew of their power to nullify the law, and that by giving such instructions to the jury, it would recognize their right to do so, which he did not believe existed (Creagan, 1993). He also argued that instructing juries of their nullification power would “dangerously ‘encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscious to disobey’” (Parmenter, 2007, p. 389). While Leventhal believed jury nullification to be acceptable in certain cases, he stated that it should be limited to the cases in which the jury “felt so strongly that it made the choice to disregard the judge’s instructions by its own initiative” (Parmenter, 2007, p. 389). Judge Bazelon, who wrote the dissenting opinion, argued that the jury has a right to recognize its conscience when reaching a verdict, and that nullification is “’a mechanism that permits a jury, as community conscience, to disregard the strict requirements of law where it finds that those requirements cannot justly be applied in a particular case’” (Creagan, 1993, p. 1135), and that it cannot be assumed to juries would abuse this power if they were made aware of it. He argued that “’trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just the nullification doctrine’” (Parmenter, 2007, p. 389).
There are many arguments made for instructing the jury of their right to nullify. First, juries can and do nullify already, regardless of what instructions they are given. Instructing a jury to nullify would allow jurors to completely fulfill their role and give them more discretion, which should be granted to them considering the significant amount of discretion granted to other participants in the criminal justice system, such as police officers, prosecutors, and judges (Morgan, 1997). Proponents of jury nullification instruction also argue that the jury needs to have this power and be made aware of it in order for justice to be served in specific, unique cases. Parmenter (2007) argued that a jury has a “constitutionally ordained power to refuse application of a criminal law” (p. 385). According to Brody (1995), if a person has a legal right to do something, he or she cannot be expected to exercise this right if the person is not made aware of it, and King (1998) states that any citizen serving as a juror “has a civic duty and privilege to stand as a barrier of conscience between the government and the accused” (p. 448). The most common argument for instructing juries of their nullification right is the idea that “if the legal system really does recognize justified rule departures by juries, then a defendant is entitled to have the jury instructed on the subject” (Christie, 1974, p. 1303). Defendants are supposed to be given every right to a fair trial, and depriving them of jury nullification instructions can lead to an unfair trial.
There are also many arguments against instructing the jury of their right to nullify. First, like Judge Leventhal argued in Dougherty, giving the people the decision of which laws they choose to follow could lead to anarchy and chaos. Allowing twelve unelected people to prevent a law that was passed by elected officials from having its intended effect would negate the purposes of having the law. Also, instructing juries to nullify could encourage them to do so in circumstances that they ordinarily would not consider nullification, and could potentially lead to unjust convictions or acquittals and violate the defendant’s right to a fair trial. Critics also argue that giving such instructions would place too great a burden on jurors (Brody, 1995). Many commentators feel that a jury’s duty should simply be to decide questions of fact, and that jury nullification is “no longer necessary or desirable in a democratic society” (Creagan, 1993, p. 1132). Jurors should not have “the moral right to decide the law according to their own notions or pleasure” (Creagan, 1993, p. 1132), which also goes back to the fear of anarchy if people are to decide which laws they feel like following. Jury nullification instructions suggest that democratically created laws can be disregarded. Justice Joseph Story supported this claim when he declared that “’it is the duty of the court to instruct the jury as to the law…and it is the duty of the jury to follow the law, as it is laid down by the court’” (Bressler, 2011, p. 1144). Many judges fear that informing a jury of its nullification power could potentially lead jurors to disregard other instructions and render its verdict simply based on morality, and could also lead to the dangerous possibility of convicting against the evidence (Rubenstein, 2006).
What are the effects of instructing jurors of their right to nullify on the ultimate verdict?
While many critics argue that a jury will approach its duty and reach its verdict differently if it is given explicit nullification instructions, this is not always true. Although it is not possible to know what exactly goes on in the deliberation room and how juries reach their decisions, the acquittal rate at jury trials in Indianapolis, where nullification instructions are given, demonstrates that the instruction does not lead to an increased number of acquittals (Brody, 1995). There have also been many studies done, including several by I.A. Horowitz, that look at the effects of nullification instructions on the verdicts of juries. In Horowitz’s 1988 study, jurors were assigned to one of three criminal cases: a drunk driving incident that led to vehicular homicide, a nurse who performed euthanasia on a terminally ill cancer patient, and a convicted felon charged with illegal possession of a weapon. Jurors were given either a standard non-nullification instruction, or an instruction that gave them the authority to determine if the law should be applied in the given case. Horowitz found that in the drunk driving case, nullification instructions did not lead to any more acquittals than standard instructions. However, jurors were sympathetic to the other two defendants, and when they were given nullification instructions, acquittals were more common in these cases. This is because juries are more likely to acquit a sympathetic defendant and be harsher on an unsympathetic defendant. In general, this study determined that nullification instructions often have a reserve effect in cases “where the defendant is perceived as dangerous” (Creagan, 1993, p. 1150), and also that juries who receive nullification instructions spend more time during deliberations discussing the moral issues at hand rather than the evidence.
IV. Discussion of Ethical Perspective
The discussion of jury nullification certainly ties into ethics in the court system. By allowing jury nullification, the court is placing a higher emphasis on morality rather than the strict following of the law, and if the court allows nullification, it certainly ought to inform jurors of this. Giving nullification instructions does not necessarily mean that the court or the judge is encouraging nullification, but in a system that is supposedly so focused on seeking truth and justice and protecting the innocent, it would certainly seem ethical to make jurors aware of their right to include their conscience when deciding on a verdict. Without giving nullification instructions, it is likely that jurors are either completely unaware of this right, or are misinformed about how and when they can use it. While it is likely that a juror’s conscience and morality influences his or her decision regardless of the instructions, often without the juror realizing it, if a jury is made fully aware of its right to nullify, the entire level of ethics comes into the deliberations. For example, in the case of a nurse on trial for administering euthanasia to a terminally ill cancer patient, the nurse is clearly guilty of the elements of law of homicide. If the jury is solely to look at the evidence and the law in order to determine guilt, it is extremely unlikely that the defendant will be acquitted. However, if the jury is told they can decide if the law should be applied, it is up to the jurors to determine if euthanasia was ethical in the case, not just whether or not the nurse administered it. In order for the court to fully follow its ideals of seeking truth and justice, the judge needs to be honest with the jury about its rights in order for them to render a fair and just verdict.
As previously discussed, in order for a jury to correctly use their right to nullify a verdict, they must be informed of this right. Advocates for jury nullification generally propose two different solutions: first, instructing the jury about their ability to nullify, and second, not giving this instruction but allowing the defense attorney to present an argument to the jury for nullification (Rubenstein, 2006). However, there are obviously issues with both of these propositions. Instructing a jury of their right to nullify, as explained earlier, can sometimes lead to a more likely acquittal. Allowing the defense counsel to argue for jury nullification can also have the same effect. Although informing the jury of this right could lead to a higher acquittal rate, the issue of jury nullification can only be properly addressed if the jury is instructed of this right. While a compromise of not instructing a jury of the right to nullify, but not instructing against it, is possible, that would not be an effective solution to the problem. Because juries have this power and right to nullify a verdict, they need to be informed as such. Otherwise, they could be misinformed or convict a defendant not in good conscience. Whether or not everyone agrees that a jury has a right to nullify, it certainly does have the power to do so, and that power needs to be addressed. After all, the legal system is very focused on defendants’ rights, and there is no reason that judges should try to hide that right or pretend it does not exist.
While it is clear that jurors have the power to nullify a verdict, whether or not they have the right to do so remains in question. However, the more central question is whether jurors should be informed of their right to nullify. The federal court, along with most states courts, does not instruct jurors of this right, although defense attorneys are sometimes allowed to present an argument for nullification to the jury. While it is nearly impossible to prove that nullification instructions have an impact on the decision of the jury due to the secrecy of deliberations and the fact that jurors could allow their morals and biases to influence the decision regardless of instructions, it is likely that instructions to nullify can lead to higher acquittal rates in cases where the jury finds the defendant to be sympathetic. Proponents of explicitly informing the jury of its right to nullify argue that juries can and do nullify already, instructing them to nullify would give them more discretion, and that juries need to be made aware of their power if they are to utilize it properly and serve justice in some unique cases. The central argument for instructing juries of their nullification right is that if they have the right to allow their consciences to play a role in the decision of the verdict, then the defendant has a right to have the jury informed as such. However, critics of jury nullification instruction also present many strong arguments. First, they argue that people should not be given the right to decide which laws they will follow and when; this defeats the purpose of having laws. Critics also argue that instructing juries to nullify might encourage them to do so when they normally would not, which could lead to unjust verdicts and violate the defendants’ rights, and that nullification instructions would place too great a burden on jurors. There are several proposed solutions to the debate on jury nullification instruction, which include a compromise of not instructing either way, instructing juries to nullify, and allowing the defense counsel to argue for nullification. Each of these solutions could potentially solve the problem while creating further debate, but ultimately, if the court recognizes the right of a jury to nullify a verdict, then the jury should be made aware of this right, whether is it through the judge’s instructions or the defense attorney’s argument. If every defendant in the criminal justice system is to have a fair trial and receive a just verdict, then every jury should be made fully aware of their powers and rights.
Bressler, J. (2011). Reconstruction and the transformation of jury nullification. University of
Chicago Law Review, 78(4), 1133-1201.
Brody, D.C. (1995). Sparf and Dougherty revisited: why the court should instruct the jury of its
nullification right. American Criminal Law Review, 33(1), 89-122.
Christie, G.C. (1974). Lawful departures from legal rules: “Jury nullification” and legitimated
disobedience. California Law Review, 62(4), 1289-1310.
Creagan, M.K. (1993). Jury nullification: Assessing recent legislative development. Case
Western Reserve Law Review, 43(3), 1101-1151.
Edwards, M.A. (2006). Law and the parameters of acceptable deviance. Journal of Criminal Law
& Criminology, 97(1), 49-100.
Gundle-Krieg, D.M. (2012). Complete list of stories regarding Jeff Pyne mom-murder case.
Retrieved from http://www.examiner.com.
Horowitz, I.A. (1988). Jury nullification: The impact of judicial instructions, arguments, and
challenges on jury decision making. Law and Human Behavior, 12(4), 439-453.
King, N.J. (1998). Silencing nullification advocacy inside the jury room and outside the
courtroom. University of Chicago Law Review, 65(1), 433-500.
Leipold, A.D. (1996). Rethinking jury nullification. Virginia Law Review, 82(1), 253-324.
Morgan, R.A. (1997). Jury nullification should be made a routine part of the criminal justice
system, but it won’t be. Arizona State Law Journal, 29(1), 1127-1143.
Parmenter, A.J. (2007). Nullifying the jury: “The judicial oligarchy” declares war on jury
nullification. Washburn Law Journal, 46(1), 379-428.
Rubenstein, A.M. (2006). Verdicts of conscience: Nullification and the modern jury trial.
Columbia Law Review, 106(4), 959-993.
Weinberg-Brodt, C. (1990). Jury nullification and jury-control procedures. New York University
Law Review, 65(1), 825-870