Radiolab on jury nullification

I have written many times about jury nullification, the little known right of juries to acquit defendants even if the defendant has clearly violated the law, if the jury feels that the law used to convict them is unjust.

We are all familiar with the process by which laws are created. We, the citizens, vote legislators into office. These legislators propose and debate bills. Once passed by the legislature and signed by the elected executive, these bills become laws and that, we think, is the end of the story unless courts rule the law to be unconstitutional. We are now obliged to follow the laws. If we do not like a law, the only option is to get the legislature to change it.

But that is not the whole story. The fact is that the signing of a passed bill by the chief executive is not the last step that determines the validity of a law. The last step is determined by juries who get to decide on whether or not to convict someone based on the law. In other words, juries, representing the common people, have the final say in determining if a law is just or not and whether it should be used to convict people or not.

Although jury nullification is a well-established right, judges and prosecutors hate it and go to extreme lengths to silence advocates of it and to prevent jurors from being told about it. The judges have arrogated to themselves the sole right to decide what the law says and what sentences to impose and prosecutors of course hate it because nullification only goes one way, to acquit people. So jurors are told to decide only the facts of the case and not take into account whether the law and sentences are just.

Jury nullification is not without its problems. On the plus side, juries have used it to refuse to convict people for helping those who harbored fugitive slaves in clear violation of the law. The refusal of juries to convict has led to some of our current fundamental protections such as those enshrined in the First Amendment. On the negative side, white juries have often refused to convict white police who have blatantly abused their power to brutalize and even kill black people, not because they thought the laws that they were charged with were unjust but for other reasons.

This Radiolab episode does a good job of explaining the history of this complex issue and you can listen to it below. It frames the issue around the case of Laura Kriho who was selected in 1996 to be on the jury of a case involving a young woman who, in a traffic stop, was found to have one ounce of meth in her purse, an offense that can result in two-to-six years in prison and a lifelong felony conviction. Kriho felt that there was sufficient doubt about the facts and wanted to acquit the woman but all the other jurors wanted to convict. Kriho also felt that even if the defendant was guilty, the punishment was much too harsh for this offense and would ruin her life. She told the other jurors that they did not have to convict if they felt the law was unfair.

One of the jurors sent word to the judge that Kriho was talking about sentences (which jurors are told not to do) and that they could ignore the law. He got really angry and ordered a mistrial. A month later Kriho got a summons for contempt of court, becoming the first person to be charged for over three hundred years for this kind of offense. But in the end they did not prosecute her for that charge because they probably felt they would lose. But in an act of vindictiveness, they charged her on a different technical issue, that she had not answered the jury questionnaire fully by not disclosing elements of her history that the questionnaire had not even asked about. She was convicted on that charge but the conviction was overturned on appeal because the court said that things that are said in a jury room is protected speech and cannot be used against people.

While I can appreciate the pitfalls, I think that on balance juries having the power to nullify what they perceive is an unjust law leads to more good outcomes than bad ones, and juries should be made aware of this right, not have it kept hidden from them as is the case now.


  1. jrkrideau says

    An interesting example of serial jury nullifications in Canada.

    To summarize, between 1973 and 1975, Morgentaler was tried three times in Montreal for defying the abortion law; each time, he raised the defence of necessity, and each time he was acquitted. Each time, the jury took less time to reach their decision to acquit: at the third trial, they took one hour.

    For some reason the people of Québec did not seem to like the law.

  2. cweigold says

    I happened to mention jury nullification during the interview portion of the jury selection process.

    This got me a private audience with the judge who told me in no uncertain terms that jury nullification was not a thing. He said that I would cause a mistrial, if selected, because my comments indicated that I was unable to be impartial. He asked if I wanted to be responsible for wasting two weeks of everyone’s time and how much I thought it cost to put on a trial for that amount of time. He really scared me.

    I was not selected.

  3. marner says

    The prosecutor (Washington State) asked us if any of us believed in it. I answered, yes, and she asked me to explain. I gave a short history of it and finished with it remains legal, but courts use the selection process to exclude jurors because they do not want us substituting the states morality for our own. I was dismissed, of course, but it was fun seeing the judge glare at me

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