The Silver Bullet: Jury Nullification

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Every defense attorney knows that even if the jury thinks the defendant is guilty there is one last chance for an acquittal. Sometimes the jury doesn’t care that the defendant committed the crime. Sometimes the jury would rather put a guilty person back on the streets then send them to jail.

I mentioned one of the earliest examples of this that I know about in my paper on Felony Murder, Regina v. Serné (see:  My Article On Felony Murder Is Online).

A more recent and famous case in point: OJ Simpson. Jurors admitted that they let him off the hook in the criminal trial because it was their way of fighting against the oppressive criminal justice system.

When this happens, it is called jury nullification.

The judge warns the jury that they MUST follow the law, not their emotions. But if they follow their emotion instead of the law there is nothing anyone can do about it. The jury’s decision is final.

Quite the silver bullet.

Of course it is improper for a lawyer to explicitly argue for jury nullification. Lawyers are bound by the rules of the courtroom and if they don’t follow procedure they can be sanctioned or disbarred. But maybe a lawyer could wear one of those buttons above…?  😆

But what if an activist is handing out information to potential jurors urging them to nullify?

Technically it’s legal. The activist is not telling people to break any law and his speech is protected by the First Amendment. In fact, many Law Review articles have recommended jury nullification in all cases until the justice system becomes more fair to minorities. The authors of theses papers may be hated by prosecutors, but there is nothing they can do to silence them.

The NY Times is reporting that a jury nullification activist named Julain P. Heicklin was handing out his materials outside a court house. Prosceutors had him indicted on the grounds that these pamphlets were tantamount to jury tampering. If found guilty he could go to jail for up to 6 months.

I am not sure that the prosecution will be able to convince a jury that a 78 year old man handing out pamphlets is guilty of jury tampering and even they did, who says they won’t nullify!?

But the real issue here, as Eugene Volokh writes, is the First Amendment issue. Even if speech is going to cause criminal activity, unless the criminal activity is IMMINENT the speech is protected under Brandenburg v. Ohio. The only way Heicklin’s speech is likely to be unprotected would be to say that free speech is somewhat suspended in a court or on court house steps. This is a viable argument but Heicklin was on the sidewalk not the court property.

It will be interesting to see what happens to the criminal case and if Heicklin is found guilty, you can be certain it will be appealed on First Amendment ground.

Links: NY Times and The Volokh Conspiracy


  • The Law

    in FL wearing that button is an automatic mistrial, will also earn you a trip to judges chambers and an interview with the bar ethics committee (probably a public reprimand as well)

    • It wasn’t clear that I was kidding? I guess I’ll add a smiley… 🙂

      • The Law

        a juror would be asked to remove the button before entering the pool room, as with any other political messages, button, stickers, etc…

      • Oh. Never mind.

  • No rabbi. It is wrong and it is lawless. We can quibble about its illegality but at least in my state it has long been established that “the jury’s function is to apply the legal definition of the crime to the evidence and to convict if it is satisfied that each of the elements of the crime has been established beyond a reasonable doubt.” People v. Goetz, 73 N.Y.2d 751, 752 (1988). Our highest court has described what many call jury nullification as “not a legally sanctioned function of the jury [which] should not be encouraged by the court.” Id. See also People v. Leon, 7 N.Y.3d 109, 114 (2006).

    Yes, we are the state which, as a colony, held what is often called the Zenger “trial” but that proceeding was closer to what we would call a “grand jury” which does have an authorized mercy dispensing function that a petit jury should not and cannot, in a nation under law, have.

    • Edward:

      Reasonable minds can disagree. I have seen far too many abuses in the criminal justice system to look down on those jurors who nullify.

  • Dochantarish

    Jury nullification can be used for good, but it should be noted that it was commonly used in the good old days of Jim Crow by all-white juries who would acquit people who lynched blacks.

    However, I see no problem with allowing non-lawyers to tell the judges how they think the law should apply. I would imagine, based on my experience as a juror, is that juries would be quite able to second-guess the judge about whether evidence presented was collected properly.

    In any event, the Maryland constitution, for one, states that jurors are empowered to judge both the facts and the law. This seems to imply that jurors are free to disregard the judge’s instructions if they think the judge has handed them a steaming stinking plate of BS. When I was a juror, we more or less disregarded the judges instruction because it was so complicated, none of us could figure how to apply it to the various charges that the prosecutor brought. Fortunately, we figured out that all we had to do was decide whether the defendant was the guy in the surveillance video who was holding up the store. We decided he wasn’t and so we acquitted. Frankly, if I had been the judge, I would have dismissed the case because the prosecutor’s evidence was cr@p. I was rather annoyed at the whole experience, because of the DA’s apparent lack of respect for us and the court, wasting the court’s time on this case, and inconveniencing the members of the jury. I was also a fascinating experience, and I’m glad I did it. But I came out of it with very little respect for prosecutors. They seem to be lazy, and think they can use the public’s fear of crime to get juries to convict everyone the cops arrest, regardless of the evidence.

    • Well said. Especially in Baltimore…

  • Dwight Callaway

    Rabbi, Thanks for your article, I like the title. Anytime a jury has gotten it wrong, been prejudiced or corrupt (those are technical terms regarding juries, btw) Anytime this happens it is the lawyers who caused it, including the judge, who STACKED THE JURY that way, or angered the jury in the case of the OJ trial. The OJ trial WAS NOT a nullification, btw. That is one of several “lawyer lies” invented to smear jury nullification and prejudice the people against it. Jurors do not “nullify” laws against murder, for God’s sake!!. OJ murdered Nicole because the LAPD over the years had convinced him he could get away with it – he told her so, because they hero worshipped old number 32 and would never arrest him for beating her up – repeatedly. The OJ verdict was caused by Lance Ito – the judge who went hollywood and treated the jurors like children, kept them waiting, yapping with Geraldo, Gil Garcetti – DA who did not have the guts to put the trial in Santa Monica with an upper middle class jury, where it belonged, Darden and Clark, incompetent and outgunned prosecutors. And the sleazy “dream team” were “just doing their job”. And the blame lies with American culture and people who will let a famous person walk. But the cops had already done this multiple times when he beat her up. Jurors are no more corrupt or prejudiced than cops and judges. You show me a place where a jury has screwed up and I will show you a town where MANY TIMES guilty but wealthy men have walked with no charges filed and innocent but poor people have been framed to protect the guilty. Wanna bet on it? People who do not like jury nullification do not like freedom and liberty or real democracy. Look up the term “jury revolution” for more from me. This is an extremely important topic. Learn more about it. Read the history and the quotations from our founding fathers and greatest jurists on the topic. Dwight Callaway Boise