Many of us have received it at one point or another—the dreaded jury summons. You arrive home, collect your mail, and get the letter mandating that you show up at a particular courthouse at a given date and time. Many of us see jury duty as a necessary inconvenience—serving on a jury is part of our civic duties, but it absolutely can be an annoying interruption to our daily lives. And most people think being on a jury is incredibly simple—if you’re selected, it’s your job to determine guilt or innocence based on the facts, evidence, and testimony you’re shown. But what many people don’t realize is that guilt and innocence, as they are currently defined, are far from the only options. There’s one particularly controversial option open to juries that you may have never heard of: jury nullification. Read on to learn about jury nullification, what it is, and why it’s important to the American justice system.

Jury Nullification: A Primer

Jury nullification is essentially when a jury decides to acquit a defendant not because the evidence indicates that they were innocent, but because they disagree with the law or the harshness of the punishment the law mandates. Sometimes this is done to make some sort of political point; sometimes it happens on an individual basis. For example, imagine you have a woman, in a state where medical marijuana is illegal, who has purchased marijuana to give to her sister who has cancer and is suffering from nausea. If the buyer is caught, she could be charged for her crime—in this case, purchasing marijuana. There may be all the evidence in the world to indicate that she did buy the marijuana. In fact, the jury may believe beyond a reasonable doubt—the burden in a criminal case—that she is guilty of purchasing marijuana. But, if the jury believes that purchasing marijuana for medical reasons shouldn’t be against the law, or that the punishment that the woman would receive for purchasing marijuana is unduly harsh, they can still recommend an acquittal. At the most basic level, jury nullification means that a jury has chosen to acquit a defendant, despite believing that the defendant is guilty beyond a reasonable doubt.

Jury nullification is possible in the United States based on a few different principles. For one, if someone is acquitted of a crime, per the Fifth Amendment’s Double Jeopardy Clause, they cannot be tried again. Jury nullification is also possible because juries cannot be punished for the decisions that they make (although someone who becomes part of a jury with the intent to push jury nullification or in some other way not uphold their duties can technically be prosecuted, however rarely.) But generally speaking, for ethical reasons, juries cannot be punished for the decisions they come to, or the important American principle of being judged by a jury of your peers would simply be moot. Additionally, judges cannot direct a verdict of guilt, the way that they can a verdict of innocence if the evidence doesn’t match the conviction.

It’s difficult to actually quantify the number of acquittals that stem from jury nullification. Juries are never under any sort of obligation to explain why they have come to the decisions that they did—although individual jurors may speak about their opinions, if they so wish. Some researchers have attempted to study the subject, and indicate that jury nullification most likely plays a role in fewer than 10 percent of cases, but there’s no real way to pinpoint exactly which cases were affected by jury nullification.

Shh…

One thing that could contribute to jury nullification’s relative obscurity is that it’s in many ways a well-kept American secret. In fact, most people seemingly don’t know that it’s a possibility, and they almost certainly aren’t told about it while serving on a jury. An 1895 Supreme Court decision, Sparf v. United States, found that jurors aren’t guaranteed any sort of Constitutional right to be told about jury nullification. In many cases, attorneys will actively try to avoid seating jurors who may know about jury nullification by asking roundabout questions along the lines of: “do you have any beliefs that might keep you from making a decision purely on the basis of the law?”

While a juror cannot be punished for an acquittal, people can get in trouble as a consequence of jury nullification. One high-profile instance involved a man named Julian P. Heicklen, a retired chemistry professor who was an advocate for jury nullification. He was charged with jury tampering in 2011. He used to stand outside of a federal courthouse in Manhattan and hand out pamphlets about jury nullification, brandishing a sign that said “Jury Info.” He didn’t target any particular jurors, rather attempted to hand the pamphlets to anyone who walked by his station. The charges against Heicklen were dismissed in 2012, but the idea that informing people about jury nullification could be tantamount to jury tampering isn’t too far-fetched to imagine.

Specific Cases of Jury Nullification in the United States

Jury nullification has a long history in the United States. In fact, an early and well-known example actually predates the nation. In 1735, a man named John Peter Zenger printed articles that criticized the colonial British government. Zenger lived in the colony of New York, and it was against the law for him to publish anything without governmental approval. As a result of his controversial publications, he was charged with libel. Despite the fact that there was no question about whether or not Zenger had written the articles—he actually presented an affirmative defense in which he admitted that they were his work—the jury acquitted him.

Throughout American history, there have been other notable instances in which jury nullification is believed to have been used. Some were seemingly noble; others were almost certainly not. The Fugitive Slave Act was updated in 1850 to prescribe up to six months in prison for anyone who was found guilty of helping fugitive slaves escape. It’s widely believed that some of the acquittals that came out of that era came from abolitionist jurors essentially practicing jury nullification. On the other hand, there’s also evidence to suggest that jury nullification popped up in the Jim Crow-era south with some amount of frequency, when all-white juries chose not to convict white defendants who were accused of violence against black citizens.

There have also been recent cases of suspected jury nullification involving public figures. Washington D.C. Mayor Marion Barry was acquitted of 13 out of 14 drug charges, despite overwhelming evidence, including a videotape of Barry smoking crack cocaine. Barry’s lawyers argued that he was entrapped by the federal government. Barry, a longtime civil rights leader, was very beloved in D.C. and it was a popular belief in the nation’s capital at the time that he was targeted for his political stances and his role as one of the nation’s most prominent black elected officials.

Perhaps one of the most well-known suspected cases of jury nullification is O.J. Simpson. Although many of the jurors involved in that decision have come forward to say that they were compelled by the evidence presented by Simpson’s defense attorneys, Simpson’s attorney, Johnnie L. Cochran, was accused of hinting at the concept of jury nullification in his closing argument by the prosecutor in the case, Marcia Clark.

Other suspected jury nullification situations include the cases of Dr. Jack Kevorkian, the controversial physician-assisted suicide advocate who killed patients he deemed to be terminally ill; Lorena Bobbitt, the woman who cut her husband’s penis off after she claimed he raped her; and Oliver North, the NSA staff member who claimed responsibility for the sale of some weapons to Iran during the Iran-Contra affair.

While it’s obviously next to impossible to know exactly why juries chose to acquit Barry, Simpson, Kevorkian, Bobbitt, North, and many others, jury nullification was suspected based on the amount of evidence damning the defendants, and the decision on the jury’s part to acquit despite that evidence.

Conclusion

While serving on jury duty may not be the most glamorous of activities, it is often viewed as one of the most noble civic duties each American is beholden to. But, guilt and innocence aren’t always as black and white as they seem on “Law & Order.” In many cases, jurors take moral issue with the convictions they’re asked to participate in. That’s where jury nullification sometimes comes in. While advocates argue that it’s a way for jurors to protest unfair laws, detractors argue that it makes an unfair playing field for those accused of the same crimes, and can sometimes be used for nefarious or heavily biased purposes. But while jury nullification is somewhat of a well-kept secret, it sometimes makes its way in to the spotlight—often in cases that are beholden to the court of public opinion.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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Jury duty is often considered to be one of the “necessary evils” of life. Some people are lucky enough to never get the summons, while others seem to be prime choices. But few people know what to do once they get that summons in the mail, and fewer still know about the judicial history and roles that juries play. Read on to learn about the intricacies of the American jury process.

Why do we have juries?

Though it is often maligned, serving on a jury is an important civil service that allows us to have fair trials. Many consider this act to be one of the best ways that citizens can assure that the judiciary holds up our rights and liberties. Each potential member of a jury will first receive a mailing. Any other form of contact, including phone calls and in person visits, should be considered fraud and reported.

A jury is promised to citizens of the United States in the Constitution:

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Juries are representatives from the community that make up a cross section of that community; rarely will there be two people who are alike. The goal is to be as impartial and fair as possible when trying to reach a verdict.

There are slight differences between juries in civil and criminal cases, but both are given clear instructions on what they need to decide. In a civil case, the burden of proof o the plaintiff, or the obligation to prove what one says, is much lower than the burden of proof on the prosecutor in a criminal case. The burden in a criminal case is beyond a reasonable doubt, while in a civil case the burden is “preponderance of the evidence,” or more likely than not, in most cases.

To serve on a jury, one must:

• Be a United States citizen.
• Be at least 18 years of age.
• Reside primarily in the judicial district for one year.
• Be adequately proficient in English to satisfactorily complete the juror qualification form.
• Have no disqualifying mental or physical condition.
• Not currently be subject to felony charges punishable by imprisonment for more than one year.
• Never have been convicted of a felony (unless civil rights have been legally restored).

However, some people can still avoid jury duty even if they meet the above requirements, such as members of the armed forces on active duty, police and firemen, and “public officers” of local, state, or federal governments. These people are not likely to receive a mailing from the state, but in such a case they often can just call in and report the problem. With only a few exemptions, including being physically unable to get to the courthouse, there are few other reasons that a person would be allowed to call in with an excuse–everyone else must fill out the form they received and show up on the given day.

Are there any controversies over juror eligibility? 

As our nation grows and changes, questions about who exactly can be on a jury have evolved. A recent example includes a 2013 California bill that would have allowed undocumented immigrants to serve on juries. California assemblyman Bob Wieckowski (D-Fremont) did not want to change any of the other stipulations for serving on a jury, but hoped that this particular bill would reduce the amount of times one person would have to serve on a jury, and would also “help integrate immigrants into the community.” The bill was eventually vetoed by Governor Jerry Brown, who said, “Jury service, like voting, is quintessentially a prerogative and responsibility of citizenship.” Still, it helped to raise questions about who exactly should serve on a jury.

There are also concerns about the age at which one can serve on a jury–questions are raised that 18 may be too young, or on the flip side, not young enough. In George v. United States, a minor defendant who was under indictment for violation of the Selective Service Act of 1948 challenged the exclusion of minors from the grand jury. The Ninth Circuit rejected the challenge, upholding the right to exclude minors from jury service.

What does a jury do?

Serving on a jury is a very formulaic procedure that requires a lot of “hurry up a wait” timing. Each step is meticulously thought out, but just takes time because of the sheer amount of people that they call at one time.

Here’s how the process is supposed to go: You’ll be expected to bring photo identification (driver’s license, state ID card, student ID) so that they can verify your identity and jury summons. Then you will sit and wait while everyone else checks in and things happen behind the scenes. Eventually, you may be subject to a voir dire. Voir Dire is “the second stage of jury procedures, and is the process by which the court and the attorneys narrow down the pool of juries to the 12 people that will decide the case.” How this happens largely depends on the state, the case, and even the specific judge. You may be asked questions so that the lawyers can determine who is going to be fair and able to listen to the facts of the case without jumping to conclusions. Lawyers are trained to look at every single thing you do while answering the questions; as a result, people are often released for reasons that may seem unclear.

The lawyers are looking for anything that may make the potential juror biased against the person he or she is defending. Some of those disqualifiers may be personal knowledge of the case, or prejudicial views. Others include:

• Negative pretrial publicity.
• A connection to law enforcement.
• Being a victim in a similar case.
• A past connection with someone involved in the trial.

Jurors can also be disqualified for falling asleep, illness, contact with the defendant, or bringing outside information into the court.

What problems are there in jury selection?

One of the biggest problems that comes from juries and jury selection is that “well rounded” aspect that they go for–often, it isn’t as well rounded as they had hoped. One of the biggest problems in recent memory was the grand jury in the Ferguson case: the jury was largely white, middle-class people on the older side.

According to CNS News:

The grand jury is composed of 12 people “selected at random from a fair cross-section of the citizens,” according to Missouri law. The jury is 75 percent white: six white men, three white women, two black women and one black man. St. Louis County overall is 70 percent white, but about two-thirds of Ferguson’s residents are black. Brown was black. The officer is white.

While a grand jury is a slightly different process, this example highlights the difficulty of finding a good cross section of people to serve on an unbiased jury.

Sometimes the problem isn’t always with who is included in the jury, but who was excluded and why. The Equal Justice Initiative explains that many African American jurors are excluded from juries because lawyers sometimes think that they won’t be unbiased, explaining:

In Powers v. Ohio, 141 the United States Supreme Court held that jurors have a right not to be excluded based on their race, yet race-based exclusion continues to stigmatize growing numbers of Americans.

Serving on a Jury

If you are one of the “lucky” few, you are then sworn in by the judge. You will receive some basic notes about what you can and cannot do during the trial. Both sides will remind you not to make decisions until you have heard everything, and you will be encouraged to pay attention to every little detail. During the trial, you will not be allowed to talk to anyone about what is going on inside the courtroom; this rule includes members of your family, or reporters who might want a scoop.

After the trial starts, you may be shuffled back and forth a few times depending on what is argued. From there, you can just expect discussions and explanations from many different people. Each case is handled differently depending on the evidence and the people present. Eventually you will hear the closing arguments and move to deliberation.

The first step of the verdict is usually to select a spokesperson whose “role is to preside over discussions and votes of the jurors, and often to deliver the verdict.” The jury is also free to ask questions or look closely at evidence. They then have to deliberate away from any other people. If something goes wrong, like a juror speaking to an outside party, or if a juror seems “off,” they can be removed. Deliberations may take a few hours, or they could take days. In some cases, the jury will not be able to reach a unanimous decision. While in some courts having ten out of 12 people agree still serves as a valid decision, others will call it a hung jury and declare a mistrial.

However, there is another controversial choice that few people know about–jury nullification.

Jury Nullification

When many people serve on a jury, they often think that they have two options to decide upon: guilty or not guilty. However, there is a third option that few people know about–jury nullification, or the practice of saying “not guilty” in a case involving a law you feel is unjust. Basically, the jury feels that the defendant does not deserve that particular punishment for what he or she did.

This is a jury’s way of saying, “by the letter of the law, the defendant is guilty, but we also disagree with that law, so we vote to not punish the accused.”

For a full explanation, see the video below.

 Conclusion

Some people love serving on a jury while others hate it–it all really depends on what kind of person you are; however, it is one of your duties as a citizen, and the chances of you actually serving are very low. While the juror system has evolved significantly over time, and there are still questions that routinely pop up, it stands strong as one of the tenets of the American justice system.

Resources

Primary

U.S. Courts: Juror Qualifications, Exemptions, and Excuses

New York Western District Courts: Frequently Asked Questions – Jury Duty

U.S. Courts: Jury Service

Additional

American Bar Association: How Courts Work

Cornell: Sixth Amendment

FindLaw: How Are Potential Jurors Selected?

Fox News: California Bill Would Let Illegal Immigrants Serve on Juries

New American: New Hampshire Jury Nullifies Major Felony Marijuana Case

American Bar: Effective Voir Dire

Bloomberg View: Ferguson’s Grand Jury Problem

Court Listener: George v. United States

Find Law: What is the Role of a Jury in a Criminal Case

Fully Informed Jury Association: Can a Juror Be Removed?

The People’s Law Library of Maryland: What to Expect the Day You Go to Court

Lawyers: Excluding Jurors: Removing and Disqualifying

The New York Times: Jury Duty? Prepare for Rejection; Though Many Are Called, Few Ever Deliberate

Primer: Five Easy Steps For Surviving Jury Duty

The Pennsylvania Code: Conduct of Jury Trial

Truth Out: Jury Nullification: Why Every American Needs to Learn This Taboo Verdict

Wise Geek: What Happens When There’s a Hung Jury?

Flex Your Rights: Nine Arguments for Nullification Debunked

Lifehacker: Eight Myths About Jury Duty, Debunked

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

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