Nullification? Yes, it’s a noun. Those committing it engage in the act of nullifying, or at least seeking to bring about the state of being nullified. No mother wants her child to grow up to become a nullificationist. Its many synonyms include cancelation, abrogation, negation, rescindment, and repeal. While infrequently used over the last 100 years, it seems to be gaining traction in our divisive political world. It has a long legal history, is occasionally useful for governments and legislatures, and is popular in constitutional circles. In constitutional history, it is a legal theory that a state has the right to nullify, or invalidate, any federal laws which they deem unconstitutional with respect to the United States Constitution. Madame Wikipedia says, “There are similar theories that any officer, jury, or individual may do the same. The theory of state nullification has never been legally upheld by federal courts, but jury nullification has.”[1]

The infamous John C. Calhoun, a former vice president of the U.S. in the 19th century, argued that states could void the actions of the federal government if they deemed them unconstitutional. They could,  he said, nullify federal laws if they were contrary to the economic interests of the entity he cared most about—South Carolina. He may have been our first political nullificationist. His ideas about slavery were profoundly bad and led us to a constitutional crisis. Trump, now a former president, drudged up a similar argument in 2016.[2]

The headline on NBC News way back in 2016 blared, Donald Trump Attacks Voter-Nullification Scheme. “The great irony of this campaign is that the ‘Washington cartel’ that Mr. Cruz rails against is the very group he is relying upon in his voter-nullification scheme,” Trump wrote. “My campaign strategy is to win with the voters. Ted Cruz’s campaign strategy is to win despite them.” Trump may change his mind in 2023 given the number of criminal indictments he’s facing.

The Washington Post’s headline repeated the notion in 2020, Trump would never go for a plea bargain, so it looks like jury nullification is his only option. “When a defendant is caught red-handed, with both the law and the facts against him, he has only two choices: a plea bargain or jury nullification. In President Trump’s impeachment case, the equivalent of a plea bargain would mean admitting that he did something wrong in pressing Ukraine to dig for dirt on Joe Biden, and profusely apologizing while arguing that it’s up to the voters to decide if his actions warrant removal from office.”[3]

The Atlantic headline on June 11, 2023, brought back old Trump ploys. “The Three Biggest Obstacles to Convicting Trump. “The third obstacle that Trump will likely use is jury nullification. “And then, finally, there is the wild-card prospect of jury nullification—the possibility that an adamant pro-Trump supporter will be seated on the jury with the committed mission of refusing to convict Trump, against all the evidence. This risk is not unique to the Trump prosecution. It can arise in any political case and can even appear in situations (like the prosecution of minor drug offenses) where the identity of an individual defendant is irrelevant to the nullifier. But it seems clear to me that the risk of nullification is especially salient with high-profile defendants like Trump, who are often the beneficiaries of cultlike loyalty.”[4]

It’s too early to tell, but Trump’s future in the next two years may turn on whether he can get multiple criminal juries to ignore the law, facts, and justice and nullify everything to keep him out of jail. Nullification of the law includes non-prosecution, judge or jury nullification, and pardon or amnesty. Jury nullification occurs when jurors, based on their own sense of justice, refuse to follow the law, and acquit a defendant even when the evidence presented seems to point to an incontrovertible verdict of guilty.[5] Is it possible that a Florida jury might nullify Trump’s conviction? The Fully Informed Jury Association exists to keep jurors informed by “instilling in them a rich understanding of their protective role, including the jurors’ right to refuse to enforce unjust law.”[6]

FUJA likes jury nullification. “[We] focus on the heart of FIJA’s mission—ensuring that everyone if fully informed of their right, when serving on a jury,  to judge the law as well as the facts.”[7] That is fundamental error because it puts the jury above the judge and denigrates the judge’s primary function in trial—to be the judge of the law. In common-law systems like ours, procedural rules define and divide responsibilities between judge and jury: the jury determines the facts of the case; the judge determines the applicable law and oversees the parties’ presentation of the facts to the jury.[8]

Once the evidence is all in, the parties have had their say and rest their cases, the judge charges the jury by informing them of the applicable law and what they must do to reach a verdict. The jurors are not free to make up their own law, or ignore the legal instructions given by the judge.[9]

At its core, jury nullification is a breach of our rule of law, depriving prosecution, and defense of their obligation to present evidence for or against the defendant in a criminal case. It only happens when a rogue jury ignores the law, the judge, their oaths as jurors, and common sense by nullifying law, evidence, and justice. It is exceedingly rare. “Jury nullification refers to a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. Essentially, with jury nullification, the jury returns a “not guilty” verdict even if jurors believe beyond a reasonable doubt that the defendant broke the law. This happens when a not guilty verdict cannot be overturned, and jurors are protected regardless of their verdicts.”[10]

The law is clear. Juries do not have the legal right to refuse to apply the law, as given to them by the judge. But that does not end the legal discussion. “Anti-government groups are on the rise. While some use violence to further their ends, many consist of “paper warriors” who fight the power of government through quasi-legal mechanisms. Some of the paper warriors’ better-known tactics include filing liens, lawsuits, and bogus letters of credit against IRS agents, judges, county clerks, and other public officials. However, one of the greatest and least noticed challenges paper warriors pose to the constitutional order – and to the criminal justice system in particular – comes from the jury nullification activists of the Fully Informed Jury Association.[11]

The theory behind the FIJA movement is that, by making every potential juror in America fully informed of his ability to veto the law, political power will be returned to the people by making juries the chief determinant of public policy. But that is conservative political thinking.  “Judges have since restricted the jury’s prerogative to make the law. Culminating in Sparf & Hansen v. United States, the Supreme Court has rejected the right of jury nullification and limited the jury’s role to that of finder of fact. As the Court stated in Sparf & Hansen, ‘public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves.’ Under a jury nullification system, the judge’s primary duty would be to preside and keep order, while jurors who were untrained in the law would decide cases according to their perceptions of relevant legal principles. As a result, the courts, although established in order to declare the law, would for every practical purpose be eliminated from our system of government as instrumentalities devised for the protection equally of society and of individuals in their essential rights. When that occurs, our government will cease to be a government of laws and become a government of men. Liberty regulated by law is the underlying principle of our institutions.”[12]

The politics of jury nullification are acutely alive in today’s divided political world. Under Libertarian views, jury nullification is the practice of a jury refusing to convict a defendant of violating a law the jurors view as unjust.[13] Others see it differently. “New Hampshire is poised to be the first state in the country to pass legislation requiring judges to inform juries of their right to ‘nullify.’ Jury nullification has existed since the nation’s founding and allows juries to acquit defendants in cases where conviction would be proper under the law but would result in an unjust verdict. The Supreme Court, however, has held that judges are not required to tell juries of their right to nullify. Some states have even allowed arresting individuals who inform juries of their right to nullify. New Hampshire’s move towards requiring judicial instructions about jury nullification is thus exciting and daunting all at the same time—it is an opportunity to see what could happen if juries really know about nullification.”[14]

In 2023, ProQuest released a Walden University study exploring jury nullification, its political history, current and potential impact on policy nationwide. The abstract is abstract. “Jury nullification (JN) is when a jury knows a defendant is legally guilty, but states they are not guilty, believing that their verdict better serves justice in that case. The problem is the violation of the Constitution’s equal protection clause for all citizens, caused by the intentional omission in most judges’ instructions to juries of JN. The purpose of the study was to fill the gap in the literature on jury behavior and address the problem of JN. The conclusions do not support mistrusting juries or suppressing the knowledge of JN and refute the expectation of HCT. The implications for positive social change include lobbying state legislatures to pass laws mandating JN as part of a judge’s instructions to the jury. If successful, the violation of citizens’ rights as described in this study may be remedied.”[15]

The National Center for State Courts dug into jury nullification by focusing on a recent case. “In United States v. Lewis, the defendant was convicted of several felonies. On appeal, Dashawn Lewis claims, among other things, the district court erred by giving the 9th Circuit model criminal jury instruction on guilt beyond a reasonable doubt. The last sentence of which provides: ‘if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.’ He argued this sentence is a misstatement of the law and ‘akin to a directed verdict,’ because a jury can acquit a defendant, even though the government proved guilt beyond a reasonable doubt, through nullification. In response, a 9th Circuit panel stated, ‘Nullification, however, is a violation of a juror’s sworn duty to follow the law as instructed by the court, and trial courts have the duty to forestall or prevent it, including by firm instruction or admonition. As such, an instruction to the jury to follow the law—i.e., to find a defendant guilty if convinced of his guilt beyond a reasonable doubt—is proper. It is not generally erroneous for a court to instruct a jury to do its job; that is, to follow the court’s instructions and apply the law to the facts. Nor does such an instruction constitute a misstatement of the law, since nullification is by its nature the rejection of such duty. [In a previous case, we explained what a court cannot do: ‘state or imply that (1) jurors could be punished for jury nullification, or that (2) an acquittal resulting from jury nullification is invalid.’ The last sentence of the standard instruction does neither. Here, ‘there was no indication that nullification would place jurors at risk of legal sanction or otherwise be invalid’ nor did the district court “tell the jury that they lacked the actual ability to nullify.’ Accordingly, the district court did not err, much less plainly err, by providing such an instruction to the jury.”[16]

The legality of jury nullification is best understood in a historical context. The U.S. Justice Department documented that history in a study done in 1980 titled “Jury Nullification—The Contours of Controversy.”[17] The abstract is succinct. “Jury nullification was commonly accepted and applied in 17th-century, 18th-century, and 19th-century America. Juries were frequently instructed that they had the power to reject the judge’s interpretation of the law, and to make the application of the law consistent with community notions of justice and fairness. During the late 19th century and early 20th century, this power was curtailed, to prevent the jury from imposing harsh and vindictive law. The controversy was reopened during the political trials of the 1960s. Currently, two States (Maryland and Indiana) provide for giving instructions on the power of the jury to reject the law in specific instances, and their criminal justice systems do not appear to be disrupted by the practice, although most judges and some commentators continue to resist the idea. Arguments against nullification include that it would lead to anarchy; that it is unwise or unnecessary; that it is necessary, but better left implicit; or that instruction on nullification would impair the responsibility of the jurors by confusing them on their duties. These are countered by arguments that nullification is particularized, making the threat of anarchy unrealistic, that in certain instances, nullification is the only remedy to overzealous prosecution; and that it supports democratic principles by supplementing legislation in areas unanticipated by legislators.”[18]

Given its blurry history and its inherent tendency to promote political ends rather than justice, writers on the subject are betwixt and between. Their ethics and empirics are entwined. The word ethics is used in the context of morals. While they’re closely related concepts, morals refer mainly to guiding principles, and ethics refer to specific rules and actions, or behaviors. A person’s idea of morals tends to be shaped by their surrounding environment and sometimes their belief system. Moral values shape a person’s ideas about right and wrong.[19] Empirics on the other hand is elusive. Madame Merrian Webster says it means originating in or based on observation or experience, empirical data, relying on experience or observation alone often without due regard for system and theory.[20]

One way to look at jury nullification in both historical and ethical contexts is to insist on ethics and ignore empirics because an empiricist is more often than not a charlatan, a quack, or a politician. Those people often lack a legal defense to a criminal charge and fall back on nullification as a defense. You can spot them because neither the facts in evidence nor the law from the bench will save them. Writers can narrow the gap between justice and nullification of it by looking at the politics of a criminal prosecution. Who is on trial—a democrat, republican, socialist, libertarian, independent, utilitarian, globalist, opportunist, or the last nominee standing when the political knives are sheathed?

Another way to look at jury nullification from a narrow ethical perspective is to equate ethical decision-making in terms of integrity. “The main ethical issue involved in jury nullification is the tension between democratic self-government and integrity. The argument has been raised that prosecutors are not allowed to seek jury nullification, and therefore defendants should not be allowed to seek it either.  However, for a prosecutor to nullify a law in this context would require negating the presumption of innocence. For this reason, prosecutorial nullification is typically defined as declining to prosecute.”[21]

There are two books whose titles identify their ethical views on whether to nullify or follow judicial instructions. The 1998 book by Clay Conrad is titled, “Using Theories and Themes to Acquit the Guilty.” The 2003 book title by John Wesley Hall Jr. is titled, “Putting on a Jury Nullification Defense and Getting Away With It.” Both authors use the literary device known as foreshadowing. On the other side of the political coin is Thomas E. Woods Jr.’s book—“Nullification—How To Resist Federal Tyranny In The 21st Century.  

Ethically speaking, neither side rests its case on right or wrong. They lean toward conservatism or liberalism, irrespective of party preference. The best advice I can give to writers on the subject is to stay in the neutral corner of the ring and let the politicos fight it out. They won’t notice you because they can’t see the neutral corner; it’s invisible.

[1] https://en.wikipedia.org/wiki/Nullification_(U.S._Constitution)

[2] https://slate.com/business/2017/08/trump-has-a-nullification-crisis.html

[3] https://www.washingtonpost.com/opinions/2020/01/19/trump-would-never-go-plea-bargain-so-it-looks-like-jury-nullification-is-his-only-option/

[4] https://www.theatlantic.com/ideas/archive/2023/06/three-biggest-obstacles-convicting-trump/674366/

[5] J. B. Weinstein. NCJ Number 141821. Journal American Criminal Law Review Volume: 30 Issue: 2 Dated: (Winter 1993) Pages: 239-254. Published 1993.

[6] https://fija.org/what-we-do/overview.html

[7] https://fija.org/what-we-do/podcast/

[8] https://www.britannica.com/topic/procedural-law/The-trial-or-main-hearing

[9] https://www.justice.gov/usao/justice-101/trial

[10] https://www.law.cornell.edu/wex/jury_nullification

[11] https://plus.lexis.com/search/?pdmfid=1530671&crid=1b81f073-65c9-495d-a29f-3d30aa231d2a&pdsearchterms=Jury+nullification&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdstartin=hlct%3A1%3A3&pdpsf=jur%3A1%3A1&pdqttype=and&pdquerytemplateid=&pdsf=&ecomp=c7ttk&earg=pdpsf&prid=d793108c-bf36-4524-80b4-8c9dc82d3fac

[12] COMMENT: CAPITAL CONFUSION: THE EFFECT OF JURY INSTRUCTIONS ON THE DECISION TO IMPOSE DEATH  85 J. Crim. L. & Criminology 532.

[13] https://www.libertarianism.org/columns/introduction-jury-nullification

[14] https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2023/02/53-0-Ainsworth-jury-nullification.pdf

[15] https://www.proquest.com/openview/0cd5371438ce38e544b885b849a0aed9/1?cbl=18750&diss=y&pq-origsite=gscholar David Harold. “Exploring Jury Nullification: Its Political History, Current, and Potential Impact on Policy. Walden University ProQuest Dissertations Publishing,  2023. 30249896.

[16] https://www.ncsc.org/newsroom/jure/2023/feb-24

[17] A. Scheflin and J. Van Dyke, NCJ # 73179 “Law and Contemporary Problems, Vol. 43, Issue 4, Autumn 1980, pages 52-115.

[18] https://www.ojp.gov/ncjrs/virtual-library/abstracts/jury-nullification-contours-controversy

[19] https://www.dictionary.com/e/moral-vs-ethical/

[20] https://www.merriam-webster.com/dictionary/empirical

[21] https://en.wikipedia.org/wiki/Jury_nullification

Gary L Stuart

I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.

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