A More Civilized Sort Of Jury Nullification

by Sherry F. Colb

In my column for this week, I write about the topic of jury nullification, occasioned by an episode of RadioLab that begins with a woman who served on a jury discussing having been criminally penalized for telling her fellow jurors about their ability to acquit the defendant for any reason. I talk about some of the pros and cons of nullification and conclude that if one has a basic trust of government and its officials, one will tend to oppose jury nullification and favor leaving it up to prosecutors to exercise their discretion in a just and wise fashion.
In this post, however, I want to consider what jury nullification might look like if we decided that we liked it and wanted to encourage jurors to use it whenever they deemed it appropriate. We could continue to have the system we have now, in which jurors are basically empowered to acquit in any case they like, and many (though not all) jurors know that they can do this (and--with the one exception discussed on RadioLab--know that they will not be punished for it). We could, in addition, allow defense attorneys to inform jurors of their power to acquit against the evidence, a move that would make jurors more likely to exercise this power than they otherwise might be.

Another alternative would be for us to accept juries as fully accountable power-wielding decision-makers within the justice system. This could mean that we would ask jurors to explain their verdicts in each criminal case and not simply indicate their verdict of "guilty" or "not guilty." It could mean as well that we would require jurors to provide reasons for a decision to depart from their ordinary role as fact-finders, such as when they acquit against the evidence. Because they are not experts in the law, they might be given options, such as "I voted to acquit because I believed the evidence was not strong enough to persuade me of the defendant's guilt beyond a reasonable doubt" and "I voted to acquit, even though the evidence was sufficient to prove each element of the crime beyond a reasonable doubt, because the law under which the defendant was prosecuted is unjust, in my view" and "I voted to acquit, even though the evidence was sufficient to prove guilt beyond a reasonable doubt, because it was abusive of the prosecutor to use an otherwise unobjectionable law to pursue a charge against a person who acted in a morally justifiable or morally obligatory fashion."

If we asked jurors either to explain their verdicts or to select from a group of explanatory options (like those above), we would be in a position to know (to the extent that jurors are forthright about their reasons) why jurors have acquitted a particular defendant. This might avoid public assumptions about jury nullification and our tendency perhaps to assume that whenever we disagree with a jury's decision, this means that the jury must have nullified. In such contentious cases as the O.J. Simpson and Rodney King prosecutions, we might have learned either that the jurors really were nullifying or that they simply viewed the evidence differently from how the public viewed it. Coming to a different conclusion about the evidence is quite different from nullification and might do less to inspire public anger and recriminations.

By proposing that jurors provide their reasons for issuing a verdict of acquittal, I aim to make the process of jury nullification--when it does occur--more transparent and more rule-like. Having to say why one is doing something has a disciplinary effect. One does not want to say "I acquitted the defendant because I could just get lost in those deep brown eyes." If one is thinking of acquitting an obviously guilty person but knows that a statement of reasons is required, one might change one's mind about the plan. And to the extent that jurors are honest about ugly prejudices that they hold, we would know what we are dealing with and could undertake public education campaigns to try to combat the prejudice.

Say, for example, in a date rape case, jurors wrote "I voted to acquit the defendant despite the fact that I was convinced beyond a reasonable doubt that he had sex with the victim without her consent, because I believe the woman should have to put up a fight if she really doesn't want sex" or "I voted to acquit against the evidence because with what she was wearing on the date, the woman was asking for it." This would be very disturbing and would (one hopes) occasion, first, a lecture from the judge about the legitimacy and importance of the rape law and second, a public conversation about the misogynist assumptions that drove the acquittal. We would no longer have to guess what jurors were doing or rely on the lazy and unconvincing "he said/she said" narrative to explain the verdict.

I still think I favor avoiding jury nullification as much as possible. Thus I would not tell jurors about their power to nullify, and I would encourage judges to tell jurors that they are to find the facts and must acquit if the evidence does not persuade them of guilt beyond a reasonable doubt and must convict if the evidence does so persuade them. Even if we left nullification in the shadows, where it currently lurks, it might still be useful to ask jurors to explain their verdicts in their own words. We might not like what we would learn if we did this, but it could be valuable to have the knowledge that such explanations would provide.  With or without a change in how we handle jury nullification, then, it would be beneficial to begin to require that jurors account for their decisions rather than remaining a "black box" that issues verdicts of guilty and not guilty without explanation.