It seems that if jury nullification is a right, then jurors should be told about it.

  • 1
    This can be a state-level issue. Several states (UT, NH, OR) have recently considered legislation requiring or permitting information about nullification in the jury instructions.
    – Pat W.
    Jun 10, 2019 at 21:33
  • Possible duplicate of How can a jury know about jury nullification?
    – feetwet
    Jun 11, 2019 at 0:04
  • I'm voting to close this question as off-topic because it is about politics (why laws are what they are)
    – A. K.
    Jun 19, 2019 at 20:42

2 Answers 2


In general they are not told. In fact, I am not aware of any jurisdiction where they are told by the judge officially. In fact judges will normally charge a jury that they must accept the law as stated by the judge, and ignore any other source of the law, whether they like it or not. But the Judge has no way to enforce such a charge.

According to the Wikipedia article

The 1895 decision in Sparf v. United States, written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5–4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. 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.

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.

It is not so much that jury nullification is a right of the jury, as that there is very little right for the prosecutor or judge to inquire into why the jury acted however it did. If there is a suspicion that the jury was bribed, or influenced by prohibited communications, that can be looked into. But otherwise a jury is like an oracle, its actions have no specified reason or justification, they are whatever they are.

The judge (or an appeals court) can set aside a jury verdict on the grounds that no rational jury could find in a particular way -- this is mostly used to overturn convictions based on insufficient evidence. But a jury has almost total freedom to believe of disbelieve any witnesses, so if it disbelieves, it could acquit, regardless of whether it rejects the law under which charges are brought. So there is no way to tell if a particular verdict was based on nullification, or on disbelief of the witnesses, or some other possible ground.

In any case, there is no provision -- that I k now of -- to set aside a jury verdict on the grounds that it was an instance of nullification, so inquiring into whether it was would be of little point.

This attitude toward jury verdicts goes back to the very early origins of trial by jury, when it was a replacement for Trial by Ordeal. The Ordeal had been considered a way of asking God to decide the issue, and there was no way to ask God to clarify the decision. When it was replaced by jury trial, no way to ask for clarification was considered possible there either -- the jury was said to voice the decision of the community at large: the formal term for jury trial was "to be tried by the country". See C. Rembar's The Law of the Land and H.C. Lea's The Duel and the oath for more on this history.

This article reports on recent cases where juries have refused to convict in Marijuana cases.

  • Of course there's a way, that's common sense. If the evidence is very strong then it's clear that the jury used nullification. Jun 10, 2019 at 21:39
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    @This They could have simply not believed the particular evidence. that may be unlikely, but it is possible, Jun 10, 2019 at 21:40
  • I mean there's no way of knowing for sure, but common, when there's very clearly proof beyond a reasonable doubt, one can be 99.999999999999999999999999999999% sure the jury used nullification. Jun 10, 2019 at 21:41
  • Actually the courts have held that jury nullification is a legal right. Just that it is not something that would change the evidence to show that you were guilty or not. Juries decide facts, the court decides the law.
    – Putvi
    Jun 10, 2019 at 21:49
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    @Putvi I'm not so sure American courts have held it as a right so much as a loophole in the system. I believe rulings have even strongly denied it as a "right", holding it only as a (hidden) "power" that derives from other explicit powers and constraints. David's answer contains much of the rationale: jury deliberations are confidential and in all but the most exceptional cases no one has the legal power to pry into the minds of the jurors or second guess them. Appeals are based on procedural errors and use hypothetical juries when necessary rather than the actual one(s). Jun 11, 2019 at 11:20

They could be told about it in the right circumstances. There just isn't always a reason to in most cases.

Generally, the court will try to only listen to relevant things.

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    Isn't often to the defendant's advantage to bring up jury nullification? Does this not happen often? If not, why? For example, some parts of the US are very pro-legalization of marijuana, wouldn't a jury in such areas be eager to not convict someone being charged for possession? Jun 10, 2019 at 21:29
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    That's very counterintuitive. I would definitely make my decision based on whether or not I think the defendant should face a conviction. Because I'm pro-legalization, I would completely disregard whether someone is guilty or not in such a case. Jun 10, 2019 at 21:33
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    That is your right, but it's not what you are supposed to do honestly.
    – Putvi
    Jun 10, 2019 at 21:34
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    I'm very convinced that almost anyone who's pro-legalization would act as I would (knowing that they have the right to do so). I don't see why someone would have much respect for a law that they strongly disagree with. Jun 10, 2019 at 21:36
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    Under what circumstances will the jury be officially told that they have a right to nullify? can you cite a case where this was done? Jun 10, 2019 at 21:38

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