I was thinking about the idea of jury nullification.

Let's say somebody does not believe in drug laws and knows about jury nullification. They get selected onto a jury. They are selected without them knowing that they are anti anti-drug-laws. Then, that juror refuses to convict that person and instead chooses to nullify the person based on that juror's political views.

Is such ideologically motivated activist judicial behavior legal?

1 Answer 1


Yes. This is legal. See, e.g. SPARF v.U.S. 156 U.S. 51 (1895); U.S. vs Moylan, 417 F 2d 1002, 1006 (4th Cir. 1969); U.S. v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ("the jury asked the judge about jury nullification. The judge responded, "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error.").

Indeed, procedurally, the system is specifically designed to prevent courts from even considering such a question.

See also, e.g. People v. Iannicelli, 2019 CO 80, § 2 (Colo. 2019) (holding no crime was committed) ("Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering")

This is deeply entwined with the U.S. law interpretation of the Fifth Amendment Double Jeopardy Clause's protections, which prohibit a retrial or appeal following a judgment of acquittal, which have been incorporated by the U.S. Supreme Court as applicable in state courts as well.

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    With the caveat that this prohibition runs both ways. In most jurisdictions the judge will smack down any attempt by the defense counsel to inform the jury that they have this power. Some jury instructions go so far as to state that the jury is obligated to return a verdict if guilty if it is proven beyond a reasonable doubt.
    – EvilSnack
    Oct 20, 2020 at 16:11
  • Is it really legal? I'd be more inclined to characterize it as very illegal but unreviewable as a legal matter -- like impeaching Obama for being black.
    – bdb484
    Oct 20, 2020 at 16:37

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