Jury Nullification: The Top Secret Constitutional Right

Jury nullification refers to the inherent power of a jury in a criminal trial to refuse to convict a defendant if the jurors are convinced that such a conviction would be fundamentally unjust. According to the Supreme Court of the United States, this power was intentionally given to criminal jurors by the framers of the Constitution, who were determined to ensure that the jury would preserve an inviolable power to act as a guardian against political oppression and unjust prosecutions. Despite those impressive constitutional roots, however, jury nullification has received a great deal of unfavorable press, at least among modern judges. For many years, state and federal courts throughout the nation have been unanimous in rejecting any suggestion that jurors ought to be advised about their power to nullify, and have in fact agreed that the jurors should generally be told that they have no such authority. This article examines the constitutional roots behind the power of jury nullification. It also lists the six most common reasons given by courts for their persistent refusal to instruct the jurors about the nature of that power – and exposes the logical fallacies underlying all six of those objections. It concludes with a reminder as to how the absurdity of modern American legal doctrine on this topic was accurately predicted, more or less, by a British moral philosopher in the 19th century, and offers some practical suggestions as to what jurors should be told by the trial judge.