VOL. 18  ISSUE NO. 39   |  SEPTEMBER 26 – OCTOBER 2, 2012


Jury nullification alive and well

While jury nullification also became part of American constitutional law, courts often decline to advise juries of that right
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CONCORD, N.H. – On June 18, 2012, N.H. Governor John Lynch signed into law HB146, which permits the defense in all criminal proceedings to inform the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy.

douglas darrellWhile the law does not go into effect until Jan. 1, 2013, jurors’ inherent right to judge the law has been in existence for centuries and was recently used by a Belknap County, N.H. Superior Court jury to find Douglas Darrell (r), 59, not guilty of felony marijuana cultivation charges that could have sent him to prison for up to seven years.

Darrell, who had never had any run-ins with the law, was arrested in 2009 after a National Guard helicopter flew over Darrell’s home, spotted the six marijuana plants growing in his backyard and notified authorities.

Despite the prosecution being able to prove Darrell, a piano tuner and woodworker, guilty beyond a reasonable doubt, the jury sided with the defense lawyer, who informed the jury it could nullify the verdict on the grounds that marijuana use was an integral part of Darrell’s Rastafarian religion.

In 1794, the first Chief Justice of the U.S. Supreme Court John Jay instructed the jury in state of Georgia v. Brailsford: “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 have a right to take it upon yourselves to judge both, and to determine the law as well as the fact in controversy.”

In 1670 William Penn was arrested for preaching Quakerism.

Although Penn admitted to the charge, four of the 12 jurors voted to acquit.

Those four jurors were sent to jail “without meat, drink, fire and tobacco” for failing to find Penn guilty.

The jurors’ action as well as the right of juries to judge the law and the facts was upheld on appeal and the right of juries to nullify the law became part of British constitutional law.

While jury nullification also became part of American constitutional law, courts often decline to advise juries of that right and instruct juries only to judge the facts of the case as they apply to the court’s instructions on the law.

In 1735, publisher John Peter Zenger was arrested and charged with seditious libel when his “New York Weekly Journal” published articles critical of the royal governor.

Zenger, after spending eight months in prison, went to trial, represented by Andrew Hamilton, a Philadelphia lawyer, who pled Zenger’s case directly to the jury.

After closing arguments, the jury deliberated for only 10 minutes before returning a not guilty verdict.

What Hamilton argued, and which became precedent setting, in this landmark case affirming freedom of the press, is truth is an absolute defense against libel, even if defamatory and is not libel if proven to be true.

Up until the mid 1800s, juries were often instructed of their right to disregard the court’s instruction of the law.

However, when northern jurors refused to convict abolitionists who violated the Fugitive Slave Law of 1850, judges attempted to dismiss jurors that appeared prejudiced against the government’s position.

Because the Fugitive Slave Law was found to be repugnant to such a large majority of the people, it was all but hopeless to render a conviction under the law.

Jurors exercised their veto power during Prohibition up to 60 percent of the time and became a major contributing factor leading up to the adoption of the 21st Amendment, which repealed the 18th Amendment that established Prohibition.

During the Vietnam War era, in a 1969 case involving protestors charged with conspiracy to disrupt a draft induction center, the jury acquitted eight Oakland, Calif. defendants after the judge instructed the jury it could acquit if it felt the defendants’ actions were protected under their First Amendment rights to freedom of speech and assembly. 

By 1958, defendants were vindicated by jury nullification in less than 9 percent of all jury trials.
Before the civil rights movement, nullification was criticized for resulting in the acquittal of whites who committed crimes against blacks in the South.

However, it was argued that the problem was not necessarily jury nullification by a bigoted all-white jury but rather the jury selection process, in that it was not representative of the community.

In modern times, it is estimated only 3 to 4 percent of jury trials involve nullification, while the rise in hung juries to almost 20 percent could be attributed to jurors considering the fairness of the law itself.

The low number of cases currently nullified by juries is attributed to courts not informing jurors of that right.

So, as judges instruct jurors they may only consider the facts presented to arrive at their verdict, jurors absolutely have the right to vote on a verdict according to their own conscience, opinion of the law and/or motives of the defendant.

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