What is Jury Nullification?

In April of 2010, Mr. Cornell had his home raided by police where 1/16th of an ounce of marijuana had been found – not enough to roll a joint. None of the potential jurors called for the case where willing to consider convicting someone for possessing a very small amount of marijuana.[1]


November 16th 2010, Touray Cornell from Montana, breathed a sigh of relief and smiled as Judge “Dusty” Deschamps convened his court to report that out of all the potential jurors who had been called, not one would be willing to convict Mr. Cornell. Dumbfounded by the jurors’ decision, the District Attorney quickly spoke to Mr. Cornell’s defense counsel and an immediate plea deal was made. Mr. Cornell walked out free without admitting guilt and without probation.

Mr. Cornell witnessed the power of Jury Nullification, a show of citizen’s power through the legal system have a long and storied history in America. it is the power of Jury nullification and Mr. Cornell saw a version of that power first hand.

What is Jury Nullification?
Jury Nullification is commonly understood in criminal law as a situation where a jury chose to acquit a defendant of charges brought by the state, even though the jurors believe the defendant committed the illegal act. Due to the 5th Amendment of the U.S. Constitution, people cannot be tried twice for the same crime. A type of “Jury Nullification” may also occur as in Mr. Cornell’s case where no juror can be found out of a pool of potential jurors who will consider convicting someone of a specific crime.

When a pattern of jury nullification rises, it has the effect of nullifying the law or statute in practice. This power essentially allows citizens to demonstrate public opinion about certain laws and may be a catalyst for legal reform.

When was Jury Nullification established?
Jury Nullification was first established in the United States by the case Georgia v. Brailsford[2]. The case established a basic principle of the American justice system with regard to jury power. In the words of Chief Justice John Jay delivering the unanimous decision:

“It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy[3].”

With this opinion, the Supreme Court blessed the power of jury nullification. While this power was held to exist, the use of that power was constrained by a later Supreme Court decision in Sparf v. United States[4]. In a 5 – 4 decision, the Court held that while the power of jury nullification existed, the Court was under no obligation to inform the jury of that power. Unfortunately, this decision instructed the judiciary to deal with the issue of nullification for decades to come.

Often, courts have done all they can to prevent the exercise of Jury Nullification. Most state courts prevent attorneys from discussing the issue in court, and most state bar associations prevent attorneys from speaking about it outside of court. State courts further restrict this power through jury selection, with jurors who express a desire to use, or acknowledge Jury Nullification, struck from jury selection.

Historical Examples of Jury Nullification

However, even though the power of jury nullification is suppressed, it has had a profound impact throughout our history. In the 1850’s when many states had passed fugitive slave laws criminalizing the aid and support of runaway slaves, northern juries continuously nullified these laws.[5] Unfortunately, the other side of jury nullification was shown in the South during this time period as well, with crimes committed by white men against African- Americans routinely ending in jury nullification.[6]

In the 1920’s, during the height of alcohol prohibition following the passage of the 18th Amendment, as many as 60% of jury trials regarding the manufacture, sale, and possession of alcohol resulted in jury nullification.[7] This constant public pressure helped result in the passage of the 21st Amendment which repealed the 18th.

Jury Nullification Today
Today, many advocates for cannabis reform see jury nullification as a way of undermining the drug war, much like what jurors did during prohibition. This specific strategy has been adopted by those seeking marijuana law reform. Jury Nullification advocacy groups estimate that between 3 – 4% of criminal cases in the United States result in Jury Nullification, with the vast majority of those occurring for misdemeanor state cases, and the bulk of those relating to marijuana possession.[8] Further, a steady rise in the number of hung juries throughout the Unites States has been suggested to result from jurors exercising their power to nullify.[9]

Recently, some states have sought to pass laws requiring judges to give jury nullification instructions to juries in criminal cases. In 2012, New Hampshire passed a law to allow defense attorneys to speak about jury nullification in court.[10] However, the law was later gutted by the New Hampshire Supreme Court in 2014[11]. Interestingly, on March 7th, the New Hampshire Legislature passed a law similar to the 2012 law aimed at addressing the issues that state Supreme Court had found. The law currently is waiting to be signed by Governor Margaret “Maggie” Hassan (D- New Hampshire).[12]

While The United States Supreme Court has not directly addressed the issue of Jury Nullification for some time, some of the current Justices have expressed support. Justice Sonia Sotomayor, the only sitting Justice on the Supreme Court to actually preside over a jury trial, spoke about the issue in February of 2016. While speaking about the case of United States v Thomas[13], in which a juror was dismissed for expressing support for jury nullification, the Justice said, “As we govern in the system, and watching it, I’m not so sure that’s right. There is a place, I think, for jury nullification—finding the balance in that and the role judges should play.”[14]

What Does Jury Nullification Mean for Me?
If one is facing charges of minor drug possession, jury nullification offers a way to avoid a conviction. For a criminal justice reformer, jury nullification offers a tangible way to advance reform through the judicial system. For the state, jury nullification remains as a constant check on the public opinion concerning laws that are passed.

The only way for Jury Nullification to work is to be informed of the power it offers, a willingness to serve on a jury, and the conviction to go to trial and fight against unjust laws like POM.

Written by Hunter white

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com

[1] http://billingsgazette.com/news/state-and-regional/montana/missoula-district-court-jury-pool-in-marijuana-case-stages-mutiny/article_d6b1aaca-edfc-527f-ad11-f1691fdc6e3b.html

[2] Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794)

[3] James R. Perry, The Documentary History of the Supreme Court of the United States, 1789-1800, Volume 6, “Georgia v. Brailsford,” p. 73.

[4] Sparf v. United States, 156 U.S. 51, 15 S. Ct. 273 (1895)

[5] http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

[6] Conrad, Clay S. (1998). Jury Nullification, The Evolution of a Doctrine, Carolina Academic Press, pp. 167-185

[7] http://www.counterpunch.org/2003/02/05/a-guide-to-surviving-as-a-juror/

[8] http://fija.org/docs/BR_YYYY_surviving_voir_dire.pdf

[9] http://www.washingtonpost.com/wp-srv/national/jury080299.htm

[10] http://reason.com/blog/2012/06/29/new-hampshire-adopts-jury-nullification

[11] http://fija.org/2014/10/24/new-hampshire-supreme-court-nullifies-jury-nullification-statute/

[12] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/14/jury-nullification-instructions-coming-to-new-hampshire/?utm_term=.5f925524049e

[13] United States v. Thomas, 116 F.3d 606 (2d Cir. 1997)

[14] http://reason.com/blog/2016/02/11/justice-sotomayor-says-there-is-a-place