Jury Nullification in History (Part I)

Well, it's good to see that a few of you are still lurking in the shadows (according to google analytics), even if you don't comment. So I will continue writing. I had hoped to make this into one post, and had started writing it weeks ago, but I honestly need to do a bit more research on jury nullification in the twentieth century in the United States. So here is Part I of a hopefully 2 parter to roll out next week:

Shortly after the Finale of this season, David Simon and other members of the Wire Braintrust wrote an op-ed in Time Magazine. They suggested jury nullification as a way to combat the current drug war on the American underclass. Much of the current discussion revolves around its use in the drug war, its legality, and its effectiveness. Recently, in an interview with the website "Play or Get Played", David Simon elaborated on Jury Nullification as a form of civil disobediance. Though some think it to be an impractical tactic, as the nullifier is often directly asked whether they will convict solely on the evidence at hand or on the law's fairness (especially in death penalty cases). The nullifier is forced to tell the truth and be tossed off the jury, or lie and risk being held in contempt of court. Simon feels the technique could provide some benefit and at a certain tipping point, becomes effective in making life hard for prosecutors because they can't get a jury together without some nullifiers. He cites the prohibition of alcohol as an example where this sidestepping of the law (Volstead Act) worked.

Jury nullification is not new in American history, and came (like much of our legal system) from English Common Law of the 18th century.(1) One of the more famous instances involved the trial of John Peter Zenger, a printer of unauthorized materials in New York. Printing of unauthorized materials (criticizing the New York Governor Cosby) was considered Sedition and Libel (even if the material was true). Zenger's lawyer, Alexander Hamilton (yeah, that guy on the $10 bill), advised the jury that "they have the power to nullify the law in situations when strict application of the law would yield an unjust or inequitable verdict" (2). Hamilton won what was considered to be an unwinnable case using the tactic, increasing his own stature and that of the nullification. Incidentally, the Zenger incident is sometimes credited with helping codify Freedom of the Press in the U.S. Constitution.

Jury Nullification has been used ever since the Zenger trial for a variety of reasons. In the 19th century, the supreme court limited the right of jurors to nullify. Supreme Court Justice Joseph Story felt it was the job of jurors to decide on the facts of a case and the job of the courts to determine interpretation. However, he was more concerned with juries attempting to convict a dependent for an act the legislature did not intend to criminalize rather than juries acquitting based on their position as "conscience of the community."

Despite the dimmer view of jury independence, 19th century juries tried to remain autonomous. One of the more prominent instances involved abolitionists attempting to nullify fugitive slave laws. While these efforts would work in the jury trials of state specific fugitive trials, most of these occurred in far northern or western states. In fact, personal liberty laws were often more effective, requiring that judges and officers of the law ignore slave fugitives in certain states. Some states mandated that jails could not be used to hold fugitive suspects. After the passage of the Fugitive Slave Act of 1850 (part of that Compromise of 1850), all trials were held before federal judges rather than juries, negating any chance at nullification. However states continued passing legislation hostile to fugitive slave law. Wisconsin's Supreme Court even declared the law Unconstitutional (an act which was unconstitutional itself). Despite the efforts of many states, the new Fugitive Slave Act forced many runaway slaves to head for Canada rather than the North. Of course, the Civil War made this pretty null and void.

Though the Supreme court looked poorly on jury independence in the late 19th century, nullification did not disappear. Many have claimed that juries acquitted white southerners accused of murdering African Americans. I will report on that, it's use during Prohibition, the civil rights movement, in other cases, and in the present day next week.

I know everyone awaits with anticip...












(1) Irwin A. Horowitz, "The Effect of Jury Nullification Instruction on Verdicts and Jury Functioning in Criminal Trials," Law and Human Behavior, Vol. 9, No. 1. (Mar., 1985), 26.
(2) Ibid.