By Saxon Bryant
Saxon Bryant is a freshman at the University of Pennsylvania and Associate Editor of the Penn Undergraduate Law Journal.
When it comes to due process, we have a flawed assumption as to how a trial by jury can proceed. As commonly understood, the two options presented before the jury are guilty or not guilty. The jury is meant to deliberate on the evidence presented during the trial, and based on that reach one of the two aforementioned verdicts. While simple, this choice does not tell the full story. Jurors have another option they can use. This third option is known as jury nullification. But what exactly jury nullification is and whether or not it’s legitimate has been a subject of debate for hundreds of years.
Jury nullification is a jury's knowing and deliberate rejection of the evidence or refusal to apply the law.  It occurs when juries render a verdict that is contrary to the evidence and has been a staple of the American judicial and constitutional system for centuries now. The Declaration of Independence gives nullification credence in saying that a government only has legitimate power with “the consent of the governed.”  A law which lacks that consent is arguably an improper law. Juries also have a constitutional basis, such as the Sixth Amendment, which grants the accused an inviolable right to a jury determination of his guilt or innocence in all criminal prosecutions. Because of this right, a trial judge absolutely cannot direct a verdict in favor of the State or set aside a jury's verdict of not guilty, "no matter how overwhelming the evidence," as was reaffirmed in Sullivan v. Louisiana (1993).  This rule is designed to safeguard what United States v. Spock (1969) defined the jury's power as: intended "to arrive at a general verdict without having to support it by reasons or by a report of its deliberations" and to protect its historic power to nullify or temper rules of law. 
Empirically, juries have not been shy to use nullification as a tool for correcting injustices committed by the government. Take the case of John Zenger, who in November of 1734 printed critical articles about the Governor of New York’s corruption. Considered libel at the time, John was brought before the court and, while fully confessing to the crime, argued that due to their truth the articles were not libelous. The jury, despite the fact that Zenger printed the articles being established as fact, went against the instructions of the judge and voted not guilty. 
Jury nullification was almost prominently used during the 1800s, when northern jurors would acquit charges brought against individuals violating the Fugitive Slave Laws. The Camden 28 are another example of the public outcry fueling jury nullification. On August 22, 1971, this group of 28 students, blue collar workers, clergy, and others broke into a draft board office in Camden, New Jersey and destroyed draft records in protest of the Vietnam War. On May 22, 1973, the jury, after listening and deliberating over the case for two months, declared each and every one of the defendants not guilty.
Jury nullification also plays an interesting role in our system of checks and balances. Just as the president possesses the power to veto and pardon, the jury is given a veto power as a check on the legislative and judicial branches per United States v. Wilson (1980).  However, without jury nullification, the power of the people to act as a check is greatly diminished because the jury would be forced to rigidly apply the law just as the judge would. Jury nullification allows not only for greater flexibility in enforcement of the law, but also evaluates the law in terms of the public values and changing social norms. 
This is not to say that jury nullification has not been a controversial topic. What are the arguments against nullification? First, the courts have been outspoken against nullification. The Fourth Circuit U.S. Court of Appeals was clear in United States v. Moylan (1969): “By clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences...we would indeed be negating the rule of law in favor of the rule of lawlessness.”  Opponents, such as Judge Harold Leventhal, argue that by allowing jurors to decide which rules they should and should not abide by, nullification diminishes the rule of law and increases the arbitrary application of justice.  The Courts have consistently agreed, reinforcing the idea that nullification should not be allowed in courtrooms through United States v. Boardman (1967), United States v. Washington in 1975), United States v. Krzyske (1988), United States v. Sepulveda (1993), and more.
A second argument is that nullification is inefficient at achieving justice. The U.S. District Court of Massachusetts said rather candidly in 2008 that “the notion that nullification will change the law is drivel. Those who would characterize it as a noble form of civil disobedience are deeply delusional.”  Instead of promoting societal change through the proper democratic channels, jury nullification circumvents the legislative process and makes every trial a not just an determination of the facts of the case but also a referendum on the law in question. By focusing on short term acquittals, the long term benefit of jury nullification in creating a sustainable system of delivering justice is contested.
Third, there is evidence that nullification is not applied equally. Frequently when jurors are informed of jury nullification, they place less emphasis on evidence and instead direct their focus towards emotional appeal or other factors.  Studies indicate that when the judge or defense attorney informed juries of nullification, they were more likely to acquit a sympathetic defendant and judge a dangerous defendant more harshly.  Allowing such biases to not only underlie the verdicts of our juries, but also guide them as occurs in nullification, raises serious questions regarding justice and fairness.
Jury nullification is not a law in and of itself, but rather a byproduct of two constitutional guidelines. First, a jury cannot be punished for a “wrong” decision. It is the final arbiter of evidence and for the most part its word is final. Second, a person cannot be retried for a crime they were acquitted of. A functioning democracy with the rule of law requires both of these, and the byproduct is the potential for jury nullification. Nullification is like any other democratic power; while some may try to misuse it, that does not mean it should be revoked. Ultimately we are a nation of laws, but also a nation of people. Our legislators are hardly infallible, as evidenced by the Fugitive Slave Act, Volstead Act, USA PATRIOT Act and other unjust laws. Jury nullification serves an important role in combating injustices, expressing public discontent,promoting just laws, and ensuring the will of the people is respected in all branches of government.
 “Jury Nullification” Legal Information Institute. Accessed March 13th 2018. https://www.law.cornell.edu/wex/jury_nullification
 Edwin Meese III. “The Meaning of the Constitution” Heritage.org. Accessed March 13th, 2018. https://www.heritage.org/political-process/report/the-meaning-the-constitution
 “Sullivan v. Louisiana” Justia.org. Accessed on March 13th, 2018. https://supreme.justia.com/cases/federal/us/508/275/case.html
 “United States v. Spock” Justia.org. Accessed on March 13th, 2018. https://law.justia.com/cases/federal/appellate-courts/F2/416/165/401712/
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 “United States v. Wilson” Justia.org. Accessed on March 13th. https://law.justia.com/cases/federal/appellate-courts/F2/629/439/266223/
 Brown, Darryl. “Jury Nullification Within the Rule of Law” 81 Minnesota Law Review 1149 1996-1997. Accessed on March 11th, 2018. http://www.law.virginia.edu/pdf/faculty/hein/brown/81minn_l_rev1149_1997.pdf
 “United States v. Moylan” Justia.org. Accessed on March 11th, 2018. https://law.justia.com/cases/federal/appellate-courts/F2/417/1002/190492/
 “United States v. Dougherty” Justia.org. Accessed on March 13th. https://law.justia.com/cases/federal/appellate-courts/F2/473/1113/226019/
 United States v. Luisi, 568 F. Supp. 2d 106 (D. Mass. 2008). Wall Street Journal. Accessed on March 11th, 2018. http://online.wsj.com/public/resources/documents/youngnullification.pdf
 Devine, Dennis & D. Clayton, Laura & B. Dunford, Benjamin & Pryce, Jennifer. “Jury Decision Making: 45 Years of Empirical Research On Deliberating Groups” Psychology, Public Policy, and Law. Accessed on March 12th, 2018. https://pdfs.semanticscholar.org/5cf0/c05cf4cf27e3912ecaeddac03d71b01d4532.pdf
 Horowitz, Irwin A. “Jury nullification: The impact of judicial instructions, arguments, and challenges on jury decision making” Law and Human Behavior, 12(4), 439-453. Accessed on March 13th, 2018. http://dx.doi.org/10.1007/BF01044627
Photo Credit: The Times Jonathan Miano
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