An empty courtroom in Clatsop County, Oregon. Occasionally, juries use the process of jury nullification when deciding a verdict. (Photo courtesy of Clatsop County Circuit Court)
High school students are on the verge of breaking out into the real world; the world of adulthood and responsibility. They’re reaching the age where they’re able to buy a car, make decisions on how late to stay out, vote, and possibly receive a summons for jury duty. This new civic duty, available to those who’ve turned 18, shouldn’t be taken lightly. Believe it or not, some questions about a juror’s rights are not entirely straightforward, and can fall into a moral and ethical gray area. Does a jury always have to apply a judge’s instructions word for word, upholding existing law firmly to convict, whenever that law has been violated? Or, in some cases, should jurors be able to consider whether it is in fact fair or ethical to follow the full force of the criminal law, possibly even declining to convict if the guilty verdict is conflicting with community or personal standards of justice and morality? During a criminal trial, a judge will issue instruction for the jury, and will tell them to set aside all personal feelings and come to a verdict based only on the evidence presented and the law as currently written. In some cases, juries overlook these instructions and acquit those who technically broke the law. This may happen because a single juror or the entire jury feels the law itself is unjust or they may think the punishment doesn’t fit the crime. When this happens, it is virtually impossible to know the actual underlying motives of the jurors, because jury deliberation happens behind closed doors. This rare and controversial practice is referred to as jury nullification. Essentially, jury nullification is the process of disagreeing with a law from within the system. Despite its extensive history, the majority of judges forbid even the very talk of jury nullification in their courtrooms. The underlying rationale for jury nullification is vital to democracy, and has a long history of use within our judiciary. Even if there are some aspects of the practice that could be considered outdated and with a potential to be used maliciously, jury nullification is worth saving.
Jury nullification is useful in situations where the law is clearly unjust and can be beneficial in avoiding unnecessarily harsh laws. Laura Kriho is a jury nullification advocate who was a juror in a drug possession case in 1994. Kriho was the sole juror to uphold her decision of “not guilty.” She told fellow jurors that she felt drug problems should be solved by families, not courts, and expressed opposition to the current drug laws in general. Kriho also explained jury nullification to her fellow jurors. In the aftermath of the case, Kriho was found in contempt of the court and fined $1,200. These charges were later dropped after it was found that Kriho had not technically broken any law. This is an example of jury nullification being used on moral precedent.
Another example of jury nullification being used to uphold personal standards is the trial of John Peter Zenger in 1733. Zenger ran a publication in New York, and in one issue harshly pointed out the corrupt actions of the royal governor. Zenger was sent to jail and accused of libel, which at the time meant publishing information opposed to the government. After specific instructions from the judge to convict Zenger if they believed he had published the stories, the jury returned with a shocking verdict of not guilty, feeling as though Zenger had the right to publish the stories, despite technically committing libel. This case was considered a step toward liberty for colonial America, and would not have had the same outcome without jury nullification.
“Jury nullification served an important function in colonial America,” says Presiding Multnomah County Judge Stephen Bushong. “The colonists were not represented in English parliament, so they did not have any way to change a law they believed to be unjust. They used jury nullification, particularly when individuals were charged with treason for criticizing or taking other actions against the king.” Bushong says that using jury nullification in the modern day could have adverse effects, and other options for changing the system should be used first. “In the United States today, citizens are represented in Congress and in their state legislatures. As a result, the underlying rationale for jury nullification no longer applies.” This is technically true; Americans are not currently living under monarchical rule and have considerably more rights to free speech and press than those living in colonial times. But the notion behind the practice is still relevant today. Jury nullification is not a perfect process. Though it can be used in productive ways, there are instances where jury nullification has been used unjustly. After the Civil War, white jurors in the South sometimes refused to convict white defendants charged with committing crimes against black victims. This is an example of jury nullification instituted on racist grounds. Racial discrimination within the American justice system is sadly not a new concept, and has been happening for as long as there has been a justice system. Jury nullification relies heavily on personal opinion and disregards existing legal standards, which is dangerous thing. Presiding Clackamas County Judge Susie Norby asserts that jury nullification is too heavily reliant on personal opinion and emotion and could be invoked too randomly to be used without negative consequences. “We all have to follow the same rules or face the same penalties,” says Norby. “Ignoring the law, even in just one case, threatens the fairness that all people deserve, because one person is treated very differently than others who came before and after him or her, and it wreaks havoc on society.” Norby says that due to nullification’s unpredictability and potential to erode away the sense of fairness that a court should be presenting, the process is a detriment to society. This perspective on jury nullification is easily understood and is certainly reasonable, but, overall, the act of nullifying as a jury or juror remains vital and shows that civilians have a voice in the decision-making process. It is preferred over the risk of jurors not having a voice against an authoritarian government, which has the ability to emerge incrementally through repeated unfair rulings and enactment of laws which target specific individuals unfairly and wreak havoc all on their own. Jurors should always retain the right to deliberate fully.
Though jury nullification may seem like an obscure concept, perhaps one that is unnecessary in the modern day, the sentiments behind the practice are essentially what hold up our modern-day democracy. Laws should exist with continued disputation and rigorous consideration. Used wisely and under compelling circumstances, jury nullification is not an open act of anarchy, but a way to provide feedback and alert lawmakers when their work is flawed. Recognizing that a law is unjust or not being applied correctly can be the first step in making crucial societal change. Many states, including Oregon, allow the use of the initiative process to change a law, so working for change outside of the jury room is often a better choice than waiting for a chance to get on a jury and utilize jury nullification. But realizing that individual citizens still have an immense amount of power and voice is truly what jury nullification represents.
