What is jury nullification?
A quick overview of FIJA's main focus area.
My name is Kirsten Tynan, and I am executive director of the Fully Informed Jury Association (FIJA). FIJA is an educational organization dedicated to fully informing everyone of jurors’ right to exercise jury nullification when they believe it is just to do so.
But what do we mean by jury nullification?
In its strictest sense, jury nullification occurs when a jury returns a verdict of not guilty even though jurors believe beyond reasonable doubt that the defendant has broken the law. Because the not guilty verdict cannot be overturned, and because the jurors cannot be punished for their verdict, the law is said to be nullified in that particular case.
To be clear—not every verdict of not guilty results from jury nullification. If jurors simply believe that the accused has NOT been proven beyond reasonable doubt to have committed the offense and so vote not guilty, that is not jury nullification. If jurors believe beyond reasonable doubt that the accused committed the offense, but that the accused had a reason allowed for in law as a legal justification for doing it (for example, they were acting in self-defense) and so voted not guilty, that is also not jury nullification.
Jury nullification, rather, occurs when jurors find the accused WAS proven beyond reasonable doubt to have committed the offense, that there was no legal justification for doing so, and STILL find the person not guilty.
A real life example of this, for instance, is the jury nullification acquittal of Antonio Willis. He was caught on tape engaging in a cannabis transaction with an undercover cop, and acknowledged this to the jury when he took the stand and testified. In just 18 minutes, however, the jury came back with a not guilty verdict.
In what can be said to be a milder form of jury nullification, some of the jurors, or even just one, can hang the jury by maintaining a not guilty verdict even though they believe the defendant broke the law. There is no requirement that jurors must come to a unanimous verdict. If the jury cannot unanimously agree on a verdict of either not guilty or guilty, this is known as a hung jury. When further deliberation clearly will be unproductive, the judge will declare a mistrial. The prosecution may or may not retry the case in the future, but the law has at least been nullified in the trial at hand.
Neither these acquittals nor mistrials set a legal precedent, nor do they take the laws that jurors refuse to enforce off the books. But when these kinds of refusals to convict stack up over time, the laws become unenforceable. Eventually, it is no longer worth the time, hassle, or embarrassment for government officials to try to enforce these laws and legislators may even remove them from the statutes.
Jurors’ refusal to enforce alcohol prohibition, for example, helped undermine such laws’ enforcement, eventually culminating in the 21st Amendment repealing the 18th.
Another permutation of jury nullification might be referred to as grand jury nullification. This occurs when, despite grand jurors finding that there is probable cause to believe that the accused committed a crime, they choose not to indict anyway.
An example of this happened in Tucson, Arizona in 2018. The 269th Pima County Grand Jury became known in the courthouse halls as “the Notorious 269th” when it made a habit of refusing to indict victimless drug crimes for small amounts of drugs being charged as felonies.
When jurors in capital cases convict the accused and find in the sentencing phase of the trial that the necessary conditions have been met to impose the death penalty, but choose instead to sentence them to life without parole, this may also be referred to as a type of jury nullification.
My aims are to ensure that every accused person’s supposedly Constitutionally-guaranteed right to trial by jury actually is guaranteed and to educate so many people that it is impossible to seat juries that have no fully informed jurors. Once an accused person has access to a fully informed jury, I trust and leave it up to jurors to decide for themselves whether or not to engage in jury nullification in the cases before them.
In the coming weeks, I’ll be sharing with you information to help make sure you are fully informed should you be called for jury duty. This will include not only the basics of jury nullification, but current information on the state of trial by jury; how judges and prosecutors are undermining the jury’s traditional, protective role; and how we can restore the full authority of the jury in delivering just verdicts.
I’ll close with a final reminder: the one person guaranteed NOT to be on your jury should you one day be accused is you. It is not in your best interest to just read this information and keep it to yourself. Please share this information with others to ensure you have fully informed jurors ready to stand up for you and your rights if one day you should need them.