Jury Nullification is a term you will not hear from a judge when he issues his/her instructions to members of a jury at the conclusion of a trial just before asking them to begin their deliberations.The reason being that the concept of a jury arriving at a verdict at variance with the judge's instructions is not tolerable from a judge's point of view. Nevertheless, a jury can and often does arrive at a verdict at variance with the judge's instructions. That this is actually accepted by legal scholars, jurists, lawyers and even presidents, as legally justified is shown by the list of views and opinions provided below. This is an important concept to keep in mind should you be chosen to be a juror. Two organizations which espouse the concept of Jury Nullification are the Fully Informed Juror Asociation (FIJA) and the Jury Rights Project (JRP).

• THOMAS JEFFERSON (1789): I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.

• JOHN ADAMS (1771): It's not only ....(the juror's) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.

• JOHN JAY (1794): The jury has a right to judge both the law as well as the fact in controversy.

• ALEXANDER HAMILTON (1804): Jurors should acquit even against the judge's instruction...."if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong."

• SAMUEL CHASE (1804): The jury has the right to determine both the law and the facts.

• OLIVER WENDELL HOLMES (1920): The jury has the power to bring a verdict in the teeth of both the law and the facts.

• U.S. vs. DOUGHERTY (1972) [D.C. Circuit Court of Appeals]: The jury has...."unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge."

• BYRON WHITE (1975): The purpose of a jury is to guard against the exercise of arbitrary power--to make available the common sense judgement of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over conditioned or biased response of a judge.

• Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 155-156 (1968)):
  • "A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government."

  • "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority."

  • "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it."

• Justice BYRON WHITE (Taylor v. Louisiana, 419 US 522, 530 (1975)): "The purpose of a jury is to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge."

• Justice THURGOOD MARSHALL (Peters v. Kiff, 407 US 493, 502 (1972)): "Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well."

• Justice ROBERT H. JACKSON (Douglas v. Jeannette, 319 US 157, 182 (1943): "Civil liberties had their origin and must find their ultimate guaranty in the faith of the people."

• JOHN LOCKE (Second Treatise of Government): "Yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them....And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject."

• THOMAS JEFFERSON: "To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

• THOMAS JEFFERSON (1789): "The new Constitution has secured these [individual rights] in the Executive and Legislative departments: but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury."

• JOHN JAY (1st Chief Justice, U. S. Supreme Court, 1789): "The jury has a right to judge both the law as well as the fact in controversy."

• SAMUEL CHASE (Justice, U. S. Supreme Court and signer of the Declaration of Independence; in 1804): "The jury has the right to determine both the law and the facts."

• Justice OLIVER WENDELL HOLMES (Horning v. District of Columbia, 249 U.S. 596 (1920)): "The jury has the power to bring a verdict in the teeth of both law and fact."

• U.S. v. DOUGHERTY, 473 F.2d. 1113, 1139 (1972): "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...."

• U.S. SUPREME COURT (State of Georgia v. Brailsford, 3 DALL. 1,4): "...it is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."

• Lord Chief Justice MATHEW HALE (2 Hale P C 312, 1665):
  • "...it is the conscience of the jury that must pronounce the prisoner guilty or not guilty."

  • "...it was impossible any matter of law could come in question till the matter of fact were settled and stated and agreed by the jury, and of such matter of fact they [the jury] were the only competent judges."

• SIR JOHN VAUGHAN, Lord Chief Justice ("Bushell's Case, 124 Eng Reports 1006; Vaughan Reports 135, 1670): "...without a fact agreed, it is impossible for a judge or any other to know the law relating to the fact nor to direct [a verdict] concerning it. Hence it follows that the judge can never direct what the law is in any matter controverted."

• U.S. v. GAUDIN (S.Ct. 1995): in which SC ruled that juries are empowered to determine relevance and materiality.

• LYSANDER SPOONER (An Essay on the Trial by Jury, 1852):
  • "Our American constitution have provided five...separate tribunals, to wit, representatives, senate, executive, jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. "

  • "The authority to judge what are the powers of the government, and what are the liberties of the people, must necessarily be vested in one or the other of the parties themselves--the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with."

  • "This preposterous doctrine, that "ignorance of the law excuses no one," is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government."

  • "...there can be no legal right to resist the oppressions of the government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions...."

  • "The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these--that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government."

  • "For more than six hundred years--that is, since Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws."

• Justice OLIVER WENDELL HOLMES JR. (Frank v. Mangum, 237 US 309, 347, 1915, not verified): "It is our duty to declare lynch law [to be] as little valid when practiced by a regularly drawn jury as when administered by one elected by a mob intent on death."

• Justice OLIVER WENDELL HOLMES, JR. (Frank v. Mangum, 237 US 309, 347 (1915)): "Mob law does not become due process of law by securing the assent of a terrorized jury."

• ARIZONA SUPREME COURT ? (Marston's, Inc. v. Strand, 560 P.2d 778, 114 Ariz. 260): "Grand jury is [an] investigative body acting independently of either prosecutor or judge whose mission is to bring to trial those who may be guilty and clear the innocent."

• JOHN ADAMS (Second President of U.S.) (1771) (Quoted in Yale Law Journal 74 (1964):173): "It is not only his right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

• BRANCH, MAX. 155: "The verdict of a jury is a bar to equity."

• HGW ("NOT GUILTY!" 4/17/93):
  • "The conscience of the jury is the yardstick of justice."

  • "The jurors have the right to leave the courtroom with a clear conscience."

  • "If citizens, in their roles as jurors, are incompetent to judge the worthiness of the law, how are they, in their roles as voters, competent to judge the worthiness of those who would write the laws?")

  • "If the meaning of the law is not a fact, what is it? Is it just an opinion? When the Trial Judge proclaims the law to the jury, he declares it to be a fact of law. But it is just one more 'fact' to be submitted to the jury for confirmation or rejection. They alone have the right to determine whether the judge's opinion is, indeed, a 'fact.'"

  • "The Jury is the Achilles heel of tyrants."

• THEOPHILUS PARSONS (2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution, p. 267):
  • "The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation." (Parsons was a leading supporter of the Constitution in the convention of 1788. He declined President Adams' nomination to be Attorney General and became Chief Justice of Massachusetts).

  • "If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty, -- For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time."

• WILLIAM KUNSTLER (quoted in Franklin M. Nugent, "Jury Power: Secret Weapon Against Bad Law," revised from Youth Connection, 1988): "Unless the jury can exercise its community conscience role, our judicial system will have become so inflexible that the effect may well be a progressive radicalization of protest into channels that will threaten the very continuance of the system itself. To put it another way, the jury is...the safety valve that must exist if this society is to be able to accommodate its own internal stresses and strains...[I]f the community is to sit in the jury box, its decision cannot be legally limited to a conscience-less application of fact to law."

• LORD DENMAN, (in C.J. O'Connel v. R. ,1884): "Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case."

• CONSTITUTION OF MARYLAND (Article XXIII): "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."

• INSTRUCTION TO JURORS IN CRIMINAL CASES IN MARYLAND (Quoted by Alan Scheflin and Jon Van Dyke, "Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 83, 1980): "Members of the Jury, this is a criminal case and under the Constitution and the laws of the State of Maryland in a criminal case the jury are the judges of the law as well as of the facts in the case. So that whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. And you may apply the law as you apprehend it to be in the case."

• 4TH CIRCUIT COURT OF APPEALS (United States v. Moylan, 417F.2d1006, 1969): "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."

• ALAN SCHEFLIN and JON VAN DYKE("Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 1980): "The arguments for opposing the nullification instruction are, in our view, deficient because they fail to weigh the political advantages gained by not lying to the jury...What impact will this deception have on jurors who felt coerced into their verdict by the judge's instructions and who learn, after trail, that they could have voted their consciences and acquitted? Such a juror is less apt to respect the legal system."

• INDIANA CONSTITUTION (Article 1, Section 19, Upheld in Holliday v. State 257N.E.579, 1970): "In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts."

• ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 170, 174, 1964):
  • "It is useful to distinguish between the jury's right to decide questions of law and its power to do so. The jury's power to decide the law in returning a general verdict is indisputable. The debate of the nineteenth century revolved around the question of whether the jury had a legal and moral right to decide questions of law."

  • "Underlying the conception of the jury as a bulwark against the unjust use of governmental power were the distrust of 'legal experts' and a faith in the ability of the common people. Upon this faith rested the prevailing political philosophy of the constitution framing era: that popular control over, and participation in, government should be maximized. Thus John Adams stated that 'the common people...should have as complete a control, as decisive a negative, in every judgment of a court of judicature' as they have, through the legislature, in other decisions of government."

  • "Since natural law was thought to be accessible to the ordinary man, the theory invited each juror to inquire for himself whether a particular rule of law was consonant with principles of higher law. This view is reflected in John Adams' statement that it would be an 'absurdity' for jurors to be required to accept the judge's view of the law, 'against their own opinion, judgment, and conscience.'"

  • "During the first third of the nineteenth century,...judges frequently charged juries that they were the judges of law as well as the fact and were not bound by the judge's instructions. A charge that the jury had the right to consider the law had a corollary at the level of trial procedure: counsel had the right to argue the law its interpretation and its validity to the jury."

• ALEXANDER HAMILTON (as defense counsel for John Peter Zenger, accused of seditious libel, 7 Hamilton's Works (ed. 1886), 336-373): "That in criminal cases, nevertheless, the court are the constitutional advisors of the jury in matter of law; who may compromise their conscience by lightly or rashly disregarding that advice, but may still more compromise their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong."

• Justice KENT (New York Supreme Court 3 Johns Cas., 366-368 (1803)): "The true criterion of a legal power is its capacity to produce a definitive effect, liable neither to censure nor review. And the verdict of not guilty in a criminal case, is, in every respect, absolutely final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned, and upheld in constant activity, from the earliest ages." [Quoted in Sparf and Hansen v. U.S., 156 U.S.51, 148-149. (1894), Gray, Shiras dissenting.]

• Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion, Sparf and Hansen v. U.S., 156 U.S. 51, 154-155, 172, 174, 176 (1894)):
  • "Within six years after the Constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction conferred upon it by the Constitution."

  • "The report shows that, in a case in which there was no controversy about the facts, the court, while stating to the jury its unanimous opinion upon the law of the case, and reminding them of 'the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide,' expressly informed them that 'by the same law, which recognizes this reasonable distribution of jurisdiction,' the jury 'have nevertheless a right to take upon themselves to judge of both, and to determine the law as well as the fact in controversy.'"

  • "It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and consequently that the jury have the legal power to decide for themselves the law involved in the general issue of guilty or not guilty."

  • "...It is a matter of common observation, that judges and lawyers, even the most upright, able and learned, are sometimes too much influenced by technical rules; and that those judges who are...occupied in the administration of criminal justice are apt, not only to grow severe in their sentences, but to decide questions of law too unfavorably to the accused." The jury having the undoubted and uncontrollable power to determine for themselves the law as well as the fact by a general verdict of acquittal, a denial by the court of their right to exercise this power will be apt to excite in them a spirit of jealousy and contradiction..."

  • "...[A] person accused of crime has a twofold protection, in the court and the jury, against being unlawfully convicted. If the evidence appears to the court to be insufficient in law to warrant a conviction, the court may direct an acquittal...But the court can never order the jury to convict; for no one can be found guilty, but by the judgment of his peers."

  • "But, as the experience of history shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield from the most patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law of amplifying their own jurisdiction and powers at the expense of those entrusted by the Constitution to other bodies. And there is surely no reason why the chief security of the liberty of the citizen, the judgment of his peers, should be held less sacred in a republic than in a monarchy."

• ALAN SCHEFLIN and JON VAN DYKE ("Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 71 1980):
  • "If juries were restricted to finding facts, cases with no disputed factual issues would be withheld from the jury. But such cases are presented to the jury. By its general verdict of innocence, the jury may free a person without its verdict being subject to challenge. The judge cannot ask jurors to explain their verdict, nor may the judge punish the jurors for it. Although judges now generally tell jurors they must obey the judge's instructions on the law, the jurors may not be compelled to do so. If the jury convicts, however, the defendant is entitled to a broad range of procedural protections to ensure that the jury was fair and honest.

  • "When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion in the enforcement of the laws. Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic.

• STEVEN E. BARKAN ("Jury Nullification in Political Trials," Social Problems, 31, No. 1, 38, October 1983): "Jury acquittals in the colonial, abolitionist, and post-bellum eras of the United States helped advance insurgent aims and hamper government efforts at social control. Wide spread jury acquittals or hung juries during the Vietnam War might have had the same effect. But the refusal of judges in trials of anti war protesters to inform juries of their power to disregard the law helped ensure convictions, which in turn frustrated anti war goals and protected the government from the many repercussions that acquittals or hung juries would have brought."

• JUDGE LEARNED HAND (U.S. ex rel. McCann v. Adams, 126F.2d774, 775-76 (2d Circuit Court, 1942): "...[T]he institution of trial by jury especially in criminal cases has its hold upon public favor chiefly for two reasons. The individual can forfeit his liberty to say nothing of his life only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions. A trial by any jury...preserves both these fundamental elements and a trial by a judge preserves neither..."

• JUDGE DAVID BAZELON ("The Adversary Process: Who Needs It?," 12th Annual James Madison Lecture, New York University School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852, 5855 (daily ed. April 29, 1971)): "It's easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law. And when the public reads newspaper accounts of criminal trials and convictions, they too may think about whether the convictions are just. As a result, jurors and spectators alike may bring to public debate more informed interest in improving the criminal law. Any law which makes many people uncomfortable is likely to attract the attention of the legislature. The laws on narcotics and abortion come to mind and there must be others. The public adversary trial thus provides an important mechanism for keeping the substantive criminal law in tune with contemporary community values."

• LEWIS CARROL (Alice in Wonderland):
  • "I'll be the judge, I'll be the jury," said cunning old Fury; "I'll try the whole cause, and condemn you to death."

  • "No! No! Sentence first -- verdict afterwards."

• WILLIAM SHAKESPEARE (Measure for Measure, 17): 'Tis one thing to be tempted, Escalus, Another thing to fall. I not deny, The jury, passing on the prisoner's life, May in the sworn twelve have a thief or two Guiltier than him they try.

• CLARENCE DARROW (Debate with Judge Alfred J. Talley, Oct. 27, 1924): "Why not reenact the code of Blackstone's day? Why, the judges were all for it -- every one of them -- and the only way we got rid of those laws was because juries were too humane to obey the courts. "That is the only way we got rid of punishing old women, of hanging old women in New England -- because, in spite of all the courts, the juries would no longer convict them for a crime that never existed."

• Justice OLIVER WENDELL HOLMES, JR. (I Holmes-Pollock Letters, (Howe, Mark DeWolfe, ed., Cambridge, Mass: Harvard University Press, 1946, p.74): "The man who wants a jury has a bad case....The use of it is to let a little popular prejudice into the administration of law -- (in violation of their oath)." [Mr. Justice Holmes should have noted that the "oath" itself was not binding. Administering such an oath is not authorized by the Constitution. If a juror refused such an oath, he would be disqualified, thus denying the defendant a fair jury. -- HGW]

• SIR WILLIAM BLACKSTONE (Commentaries on the Laws o England, 1765-1769): "Every new tribunal, erected for the decision of facts, without the intervention of a jury...is a step towards establishing aristocracy, the most oppressive of absolute governments."

• Justice ROBERT H. JACKSON (Morisette v. United States, 342 U.S. 246): "But juries are not bound by what seems inescapable logic to judges."

• U.S. v. WILSON (629 F.2d 439