As previously explained, jury nullification occurs when a jury fails to follow the instructions of the court and instead returns a verdict contrary to those instructions. UN Appeals judge and constitutional law expert Geoffrey Robertson suggests that an independent jury can disregard the strict letter of the law set forth in these instructions and return their verdict of acquittal due to feelings of “sympathy or humanity” or simply based on common sense.
Jury instructions themselves can be part of the problem. Jury instructions are summations of the law and reflect the litigants’ best efforts to distill often complex laws in chunks that can be understood and applied by the jurors when evaluating the facts presented to them at trial.
However, when it comes to criminal cases and the tacit but often necessary application of constitutional law principals, these “chunked summations” of the law are rife with potential pitfalls. According to Duke University School of Law Professor Brandon Garrett, the use of constitutional rights in jury instructions—and in evidentiary practice more generally—is a subject that deserves far more attention in the bar and in scholarship.[i]
Juries can nullify for any number of reasons, but types of nullification can generally be divided into several discrete categories. “Classical” jury nullification occurs where the jury believes that the law itself is unjust, such as when a jury refuses to convict defendants for minor drug offenses.
Classical nullification can also occur where the jury believes the law is just, but the punishment is excessive. “As applied” jury nullification happens when the jury acquits because it believes the law is being unjustly applied, for instance, when a jury refuses to convict campus protestors of trespass. “Symbolic” nullification occurs when the jury acquits to send a political message to the executive or legislative apparatus, or to society, but does not object to the law or its application.[ii]
In some ways these distinctions are theoretical and largely academic because a jury nullification is most often done in stealth. It is highly unlikely that a jury would both enter a verdict of acquittal and admit or explain to the judge that their verdict is also one of nullification. It is likely most often true that a jury does not even necessarily recognize that they have reached their verdict of acquittal either in violation of their instructions or in judgement of the law set forth within them.
It is also worth noting that a jury can “nullify” the law when they return a verdict of guilty. This could happen, for example, when they apply the law based on an improper interpretation of the instructions. Another example might be a case where a verdict of guilty is entered even though the government has failed to prove their case beyond a reasonable doubt.
These miscarriages of justice could occur where the accusations are so unpopular or heinous that the jury essentially makes it easier for the government to gain a conviction. Cases involving child sex crimes, sex trafficking, child pornography and drunk driving are all examples of the kinds of crimes where this “lessening of the burden” might occur, and this would result in a nullification verdict.
Which brings us back to Professor Garrett’s statement set forth above. The burden of proof applicable at a criminal trial, and even the concept that the burden of proof rests solely on the prosecutor, are both Constitutional principles. Instructions that fail to properly set forth and explain these principles can result in an innocent person being found guilty of a crime they did not commit.
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[i] Garrett, Misplaced Constitutional Rights, Boston University Law Review, Vol. 100:2085 (2020).
[ii] Rubenstein, 106 Colum. L. Rev. 959 (2006), supra.