Jury Nullification: Exercise Your Right to Fight Unfair Laws

Jurors should acquit, even against the judge’s instruction…if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong. — Alexander Hamilton, 1804

Lily Dane
Activist Post

What would you do if you were selected for jury duty, but felt that the “broken” law itself was unjust, unfair, or unconstitutional?

Did you know that, as a juror, you have the right to acquit a defendant in a criminal case if you determine the law itself to be flawed?

Even if the court proves the law in question was actually broken, a jury has a right to find the defendant innocent if the law is found to be unfair, immoral, unjustly applied, or unconstitutional.

This is called jury nullification.

JuryBox.org provides this example of how the process works:

Say Congress passed a bill, and the President signed it, stating that the official religion of the United States is Christianity, and that no other forms of religion are to be practiced under penalty of jail. While almost 80% of the United States is Christian, the 1st Amendment clearly states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof […]”. Our hypothetical example does both: establish and prohibit. So say someone continued to openly practice Judaism and was arrested for breaking this law. Upon trial, the prosecution laid out mountains of evidence of the defendant breaking this law and the accused got on the stand and proudly admitted his guilt. Can the jury find him not guilty? Yes. And they should.

In our hypothetical case, the law was clearly unconstitutional. Therefore, not only is the accused on trial but so is the law. It is the responsibility of the jury to judge not just the facts of the case but also the law in question.

While the law will still be on the books, a pattern of juries voting to acquit effectively nullifies the law.

If jury nullification is new to you, may be wondering why you haven’t heard of it before. The reason is likely this: most judges don’t want jurors to know about it, and they often prevent defense attorneys from letting juries know it is an option.

JuryBox.org explains:

In the 1895 case Sparf v. US, the Supreme Court ruled 5-4 that a trial judge has no responsibility to inform juries of their right & responsibility to nullify laws. Sometimes, in direct opposition to the purpose of a jury, a judge will instruct a jury to apply the law as it is given to them whether they agree with the law or not. In some situations, the judge will call a mistrial if an attempt by the defense attorney to inform the jury about this important right and responsibility.

What if you are called for jury selection, or are chosen for a jury? Here, Steve Silverman of Flex Your Rights discusses how jury nullification works: