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Jury nullification may not be the worlds best know term, but it's certainly no stranger to this Stack.

I'm curious how it comes about, and how it is legally justified, that an officer of the court is forbidden from telling a jury of a right that it has.

I can imagine "populist" and "conservative" (small c) answers that it would create chaos, or throw the law into disrepute, or allow guilty parties to be free. I can well believe those are practical arguments to contemplate, but I'm still not convinced.

When I think it through, these are some of my main concerns:

  1. The status quo is that a jury has absolute discretion to follow the law or substitute its own finding in lieu, without need to justify. But the court and its officers may not tell them they have that right. That's going to mean that some trials will have a jury informed of its discretion before retiring, and some won't. How is this justified as fair justice?
  2. We trust 12 individuals to decide whether they believe a matter is proven beyond reasonable doubt. Surely if so, we may also trust them to not misuse discretion either? (At most, add a suitable direction)
  3. Individuals informed of their right to ask a jury to nullify, must artificially fire their representative, then self-represent, to do so. It's artificial in that they don't wish to, but it's then only way to directly seek it of a jury or inform them or address the possibility. This is disruptive and contrary to the interests of justice. Also probably ineffectual as it doesn't stop anyone, just raises a mental barrier.
  4. Surely having a right as a defendant that may accrue to one's benefit, but be forbidden by national law or formal court processes as written, to have competent counsel mention or request it, with the express purpose that the jury shall be ignorant of their full rights in the matter of a verdict (and left with the incorrect belief that they have no discretion available), is in breach of human right to a fair trial?

So... we trust a jury to rightly judge guilt - including capital guilt. But not to be even aware of discretion. And I'm left with the question at the start, as a result.

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    I'm not sure about the premise that a jury has the "right" to nullify. AFAIK, legally they do not; they are responsible for making a decision in accordance with the law and on no other basis. They do have the ability to nullify, since nothing actually prevents them from doing it, nor is there any punishment if they do. But that's not the same as a right. It's like the distinction between legalization and decriminalization. Jan 11 at 2:37
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    As you know, of course, this site is not for debates on how the law ought to work or what principles it should or shouldn't uphold; our own opinions on such things are off topic. It's rather for objectively answerable questions about what the law is. As such, you may want to re-focus your question away from subjective things like "is this fair?" to something like "have courts found this to be legal, and what reasoning did they give?" Jan 11 at 2:40
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    As ohwilleke says, it's a compromise that the legal system has created. You are totally free to think such a compromise is stupid / absurd / inconsistent / unfair / immoral / etc, but this site isn't the place to air it. Jan 11 at 2:42
  • @NateEldredge - I was going to use the term "equitable". A primary legal principle is that defendants are equal in the eyes of the law, and (I think also!) have equal access to the benefits of rule of law. I used the term "is this fair" because I wasn't sure that equitable, with its specific legal meaning, would convey the issue, "this appears to breach the principle that all defendants are equal with equal rights under the law". What would the correct term be?
    – Stilez
    Jan 11 at 12:01
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    "a jury has absolute discretion to follow the law or substitute its own finding in lieu, without need to justify" Actually that's not correct; look up "JNOV". Judges seldom do it because it's seldom necessary, but it is a thing.
    – TylerH
    Jan 11 at 14:45

3 Answers 3

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The "why" is pretty simple: the duty of the court is the ensure compliance with the law and uphold the rule of law. A statement to the contrary would undermine that obligation and would undermine a juror's oath to rule consistent with the law.

But, out of institutional considerations, any rule that would make jury nullification impossible would also undermine other aspects of the jury trial that are designed to make a jury's determination of the facts of a case in a manner consistent with the law independently. And the oath of jury members to uphold the law is seen as adequate to secure the goal that juries uphold the law.

One of the main points of a jury as an institution is to make random members of the general public who will never assemble together again and whose reasons aren't disclosed, rather than an identifiable individual who will continue to serve for decades and is identified with the government responsible for unpopular resolutions of particular criminal cases. If a judge could inquire about the reasons for a jury decision and punish them for making a decision for the wrong reasons, this appearance of independence and transfer of responsibility would be defeated.

Another purpose of a jury trial system is to democratize the courts and to make a collective decision of the people at large look like one. But, even rare instances of jurors being disciplined for rendering a verdict in a manner that a judge grilled the jurors upon and found wanting would be problematic with respect to the cause of getting jurors (who already readily evade service) to serve.

Therefore, continuing to keep in place the practices with respect to appellate review and the privacy of jury deliberations that makes jury nullification possible in fact, while not acknowledging this "loophole" in the system, is viewed as a suitable compromise.

This isn't a breach of a human right to a fair trial because jury nullification is an extra-legal benefit to a criminal defendant to which they have not entitlement for the trial to be fair, and because governments don't have human rights. A jury nullification is in the same moral and human rights territory as an executive branch pardon. It can provide a safety valve that, because of the persons who are exercising it, we believe to be fairly safe from undue abuse, even though it does not implicate legal rights strictly construed.

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    That sounds like an implicit statement that nullification is somehow unlawful? It would be easy to remove the jury's right by statute, if so, or if wanted. But until that happens, it must surely be part of the law, and part of its compliance, for a jury to have a mind to all possibilities that a jury may rightfully have?
    – Stilez
    Jan 10 at 18:42
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    @Stilez Jury nullification is contrary to the juror's oath when empaneled. But the courts have made a policy choice for the reasons suggested to make that oath unenforceable as a matter of law, so it is merely a moral obligation.
    – ohwilleke
    Jan 10 at 18:46
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    @Stilez I think the "de facto" makes all the difference though. The legal system doesn't consider it a rule, and on that basis ignores the effects. Trials have all manner of "unfairness"/inequality due to all manner of practical effects, but you can only get a new trial when your actual, de jure, legal rights were violated.
    – mbrig
    Jan 11 at 18:25
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    @Vikki Not really. Courts ensure compliance with the law and uphold the rule of law even if the law is unjust. Determining if the law is just is not the job of the courts in most cases. The power to issue a JNOV in a civil case is one of the reasons that jury nullification is largely limited to criminal cases (although the U.K. has almost no civil juries).
    – ohwilleke
    Jan 11 at 20:21
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    @Vikki Incidentally, there are government officials in the system who do have a legal obligation to serve justice (although not, on those terms, a legally enforceable duty), who just happen to not be judges. Those officials are prosecuting attorneys.
    – ohwilleke
    Jan 12 at 17:43
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I don't disagree with the other answer but I think it would be helpful to add some points about UK law specifically, since that is tagged in the question.

For England and Wales, the role of the jury is subject to the Criminal Procedure Rules, which provide that anyone involved in a criminal case must (among other duties) deal justly and fairly, acquitting the innocent and convicting the guilty. They swear or affirm that they will give "a true verdict according to the evidence", which is to say that the verdict should not be based on such factors as the punishment the defendant might receive, or information not presented and argued in court. The position in Scotland and Northern Ireland is essentially the same.

The jury members do not have the right to step outside their assigned role as finders of fact, within the set process. The accused also does not have the right to tell them to do that. Rather, it is the accused who has the right to a fair trial, and the jury who have the shared duty to give them that trial. The accused does have the specific right for the jury to be impartial, and many other rights. The jurors are protected from reprisal for returning a not-guilty verdict (see Bushel's Case), but still have to follow the court's rules, just like everyone else in court.

It's true that the privacy of jury deliberations mean that they might not do their sworn duty, but as a matter of law they are meant to decide based on the evidence presented, and on the law as explained to them. Aside from contempt of court, there are now several specific offences for jurors who fail to do this - mainly directed at those who do their own research - but also including engaging in "prohibited conduct", which is

conduct from which it may reasonably be concluded that the person intends to try the issue otherwise than on the basis of the evidence presented in the proceedings on the issue.

This provision, introduced in 2015, is in response to a case of a juror who posted on Facebook:

Woooow I wasn't expecting to be in a jury Deciding a paedophile's fate, I've always wanted to Fuck up a paedophile & now I'm within the law!

Contempt proceedings followed (Attorney General v Davey [2013] EWHC 2317 (Admin)) and the 2015 legislation was introduced to make that kind of situation easier to administer. In Parliamentary committee discussions it was suggested that this offence might also cover the giving of a perverse verdict, and although that intention was denied, the case still illustrates that juries can deviate in both ways from their duty. There are plenty of other cases about racially biased jurors, jurors who knew the accused or a victim, and so on, all of which are potentially compromising to the proper basis on which they should decide.

Barristers may be found in contempt if they suggest the jury should disregard the instructions of the court. The judge has the last word on jury instructions, literally, and is in a position to give them the proper basis on which they should decide, or in more extreme examples to discharge the jury and start again. So it is a bit tricky for a barrister, or a litigant in person, to sneak through the suggestion.

In response to your enumerated concerns -

  1. There are many appellate cases concerning judges' instructions to jurors, and the expectations in the summing-up are well established. This will include language explaining how the jurors are meant to proceed.
  2. It is not a question of absolute trust but a system of overlapping safeguards. These include early removal of potential jurors from the pool if they cannot promise to participate properly, the various briefings given to them, the possibility of being held in contempt of court, the possibility of inquiring into jury deliberations if there is misconduct, the jury policing themselves within the room, the eventual option of returning a majority verdict (e.g. 11/12) if there is a stubborn minority, and the fundamental asymmetry between prosecution and defence.
  3. It is not the case that litigants in person are able to suggest that the jury should not follow the law. There are lowered expectations from the court about how they might behave compared to professional lawyers, and they don't face the possibility of professional sanctions, but the judge is still entitled and expected to stop them from messing up the proceedings. More commonly, LiPs face other obstacles in properly presenting their case, and the current policy is that judges are meant to nudge them back into bounds without impairing their right to take part. So judges may have a different manner with LiPs but they are not exempt from the rules.
  4. There are some ECtHR cases about jury trials (and recall that not all European jurisdictions even have juries). The Convention language requires a fair hearing by an "independent and impartial tribunal", and there is a right for the accused to participate effectively. But in Miljevic v Croatia [2020] and Brandstetter v Austria [1991], it was held that this does not entail "an unlimited right to use any defence arguments", and in Melin v France [1993] that he has to show diligence himself if he refuses legal assistance. In Legillon v France [2013], it is restated that in a system where a lay jury returns a verdict without having to give reasons,

Article 6 requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction. Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury's answers.

This would suggest that the regime in England and Wales is compatible with the Convention rights, given that its overriding objective (from the Criminal Procedure Rules) is to guarantee a fair trial. While "the rule governing the secrecy of jury deliberations is a crucial and legitimate feature of English trial law which serves to reinforce the jury's role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors on the evidence which they have heard", Gregory v United Kingdom [1997] ECHR 9, the potential for arbitrariness arises and that is offset by the surrounding procedural safeguards. Again, some of those exist for the protection of the accused against prejudiced jurors, or jurors who do outside research and so might find negative information that the accused had no chance to see and counter in court. The suggestion in the question about the jury being "ignorant of their full rights" does not apply, since the jury members do not have Convention rights (such as free expression) which would operate in this context, where they are required to be impartial in the interests of justice.

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    This is much more helpful,- the detail and depth I mean. Thanks. And yet, the point could do with a bit more direct addressing. Ignoring those who seek information outside the courtroom, and so on, and sticking to nullification...... The answer as it stands seems to say, a jury must not find in defiance of the evidence (= perverse/nullified) but equally should they decide to anyway, they are in fact allowed. To underline this, even if the judge says they * must * find guilty and they don't, they are still allowed. There is no sanction, no inquiry, no reversal and retrial.....
    – Stilez
    Jan 11 at 13:32
  • That stops being an aberration, and becomes a part of court procedure and practice, at that point, de facto if not de jure. (Even if for many, undesired but hard to eliminate: there's still no sanction/reversal, it's permitted de facto.) Realistically, some D's benefit (however slim) from a jury knowing that fact, that they do have discretion without sanction to vote contrarian for any or no reason without inquiry, in practice, and some are prevented by policy from their jury knowing it, and so never have that equal option in reality, however slim/unlikely. That's my fundamental query.
    – Stilez
    Jan 11 at 13:54
  • Would it be considered proper or improper for jurors to place their own judgment as to whether things are e.g. "unreasonable" ahead of any judicial instruction on the matter? If a situation arises which is somewhat different from any that were contemplated by Parliament or have previously arisen in case law, I wouldn't think anyone but the jury would be adequately placed to judge whether the differences are sufficient to render existing statutory and case law insufficient to reach a verdict without applying additional judgment of their own.
    – supercat
    Jan 11 at 19:53
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    Being "impartial in the interests of justice" would seem to require that the jury have the right of nullification, to guard against situations where strictly following the law would result in injustice.
    – Vikki
    Jan 11 at 20:16
  • Interestingly, in the US, proceedings against someone for telling the jury they have the right to nullify the law tend to fail because there's no way to present the case to the jury without them hearing what it is about. I haven't seen what happens when defense lawyer does it, but I've seen what happens when someone holds a sign outside the courthouse.
    – Joshua
    Jan 12 at 2:57
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It isn't; not by any manner of means.

It's the jury's job to find as they see fit, absolutely.

It's the job of every court officer - including the judge - at least to explain that much to the jury and so long as it doesn't in any affect their deliberations, to help the jury achieve what verdict they think fit, absolutely.

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  • Except apparently it * is *. Forbidden or not allowed to tell or inform, that is. Otherwise I wouldn't have asked the Q.....
    – Stilez
    Jan 12 at 1:21
  • @Stilez If that's so, would you rather insist, or explain? Despite your lengthy diatribe, everything I said remains true. Can you explain how "it * is *. Forbidden or not allowed to tell or inform" works in English? Jan 15 at 1:32
  • Google is your friend for things like this: findlaw.com/criminal/criminal-procedure/jury-nullification.html ("Some judges forbid any mention of jury nullification in the courtroom. Defense attorneys are not allowed to tell the jury that they can ignore the legal instructions of the judge."). Or ....
    – Stilez
    Jan 15 at 4:18
  • famous-trials.com/zenger/99-nullification ("In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not ... Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law. Recently, several courts have indicated that judges also have the right ... to remove any juror who makes clear his or her intention .... to nullify....
    – Stilez
    Jan 15 at 4:18
  • Do your research, and ask if it isn't clear.
    – Stilez
    Jan 15 at 4:18

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