The definition
What jury nullification is
In plain English: a jury decides the defendant did what they are accused of — and votes “not guilty” anyway, because convicting would be unjust in their view.
More formally: jury nullification is a jury’s deliberate refusal to apply the law as the judge has given it, returning an acquittal even though the jurors believe the prosecution proved its case beyond a reasonable doubt. It happens because an acquittal cannot be overturned and jurors are protected regardless of the verdict they return.
Definition follows Cornell Law School, Legal Information Institute, Wex: “jury nullification”.
The word “nullification” is misleading. A jury that nullifies does not repeal a law, strike it down, or change it for anyone else. The law stays exactly as it was the next morning. What the jury does is decline to apply it to one person, once.
It only runs one direction. A jury can acquit against the evidence and nothing can be done about it. A jury cannot convict against the evidence and make it stick — a judge can throw that verdict out, and the defendant can appeal. There is no such thing as nullifying someone into a conviction.
The mechanism
Why the power exists at all
No statute grants it. It falls out of four ordinary features of a criminal trial, each of which exists for its own separate reason.
The general verdict
Criminal juries return one word — guilty or not guilty. They are not asked to show their working, and no one may compel them to.
No directed conviction
A judge may explain the law, but may not order a jury to convict, however strong the evidence looks.
Sparf and Hansen v. United States, 156 U.S. 51 (1895)
Double jeopardy
Once an acquittal is entered, the government cannot appeal it and cannot try the person again for that offence.
U.S. Const. amend. V
Juror immunity
Jurors cannot be fined or jailed for the verdict they reach. English courts settled this in 1670 and it carried into American law.
Bushel’s Case (1670) 124 E.R. 1006
Precedent — in order
The cases this comes from
The order matters here. Courts first protected the jury’s independence, then spent a century narrowing what anyone is allowed to say about it.
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1670
Bushel’s Case (1670) 124 E.R. 1006 — Court of Common Pleas
William Penn and William Mead were prosecuted in London for unlawful assembly after a Quaker meeting on Gracechurch Street. The jury refused to convict. The judge locked the jurors up without food, drink or heat, and when they still returned “not guilty”, fined and imprisoned them.
Juror Edward Bushel refused to pay and petitioned for habeas corpus. Chief Justice Vaughan held that a juror cannot be punished for the verdict returned — not for going against the judge’s view of the evidence, and not for going against the judge’s instruction on the law.
Read it precisely: the ruling establishes that jurors are immune, not that they are entitled to disregard the law. That distinction runs through everything below.
Foundation of juror independence -
1735
Trial of John Peter Zenger New York colonial court
Zenger, a printer, was tried for seditious libel over articles attacking the colonial governor. He admitted publishing them. The judge instructed the jury that truth was no defence and that publication alone was enough to convict.
The jury acquitted him. It is the most cited American example of a jury refusing a law it considered unjust, and it fed directly into the founding generation’s view of the jury as a check on government.
The archetypal American example -
1794
Georgia v. Brailsford 3 U.S. (3 Dall.) 1 (1794)
In an early case tried to a jury before the Supreme Court itself, Chief Justice John Jay told the jury it had the right to determine the law as well as the facts. For a century this was quoted as settled American doctrine.
Caution: it is a civil case, the remark came in a jury charge rather than a holding, and the Supreme Court later rejected the position. It is history, not usable authority.
Later repudiated -
1895
Sparf and Hansen v. United States 156 U.S. 51 (1895)
The turning point, decided 5–4 with Justice Harlan writing. The Court drew the line that still governs federal courts: a jury has the raw power to disregard the law, but no right to do so, and no entitlement to be told the power exists.
Two things survive from Sparf at once. A judge may not direct a jury to convict — and a judge need not, and in practice will not, tell jurors they may acquit against the law.
Power, but not a right -
1969
United States v. Moylan 417 F.2d 1002 (4th Cir. 1969)
Vietnam-era draft-board protesters asked to argue nullification to the jury. The Fourth Circuit acknowledged plainly that juries have the undisputed power to acquit in the teeth of the evidence and the judge’s instructions — and then upheld the trial court’s refusal to let defence counsel argue for it.
Acknowledged, then walled off -
1972
United States v. Dougherty 473 F.2d 1113 (D.C. Cir. 1972)
Protesters who ransacked a Dow Chemical office argued the judge should have instructed the jury on nullification. The court refused, 2–1: the jury’s prerogative is a real and useful counterweight to harsh laws and hard-line prosecutors, but that does not oblige a judge to advertise it. Judge Bazelon dissented on this point.
Dougherty remains the standard answer when a defendant asks for a nullification instruction: no.
No instruction required -
1997
United States v. Thomas 116 F.3d 606 (2d Cir. 1997)
The modern limit, and the one jurors are most likely to meet. The Second Circuit held that a juror who is genuinely refusing to apply the law may be removed mid-deliberation — but only where the evidence of that is unmistakable. If there is any possibility the juror is simply unconvinced by the prosecution’s case, removal is improper.
The practical effect: a juror who announces an intention to nullify may lose their seat; a juror who is unpersuaded cannot be touched.
A juror can be removed -
2012
United States v. Heicklen 858 F. Supp. 2d 256 (S.D.N.Y. 2012)
Julian Heicklen, a retired chemistry professor, handed out nullification pamphlets outside the federal courthouse in Manhattan and was indicted for jury tampering under 18 U.S.C. § 1504. Judge Kimba Wood dismissed the indictment: the statute reaches attempts to influence a juror about a specific case pending before that juror, not general advocacy about the role of juries.
This is why pages like this one are lawful to publish, and why leafleting outside a courthouse is a different matter from approaching a sitting juror about their trial.
Talking about it is not tampering
State law
Four state constitutions say it out loud
Federal doctrine follows Sparf. But several state constitutions still carry text giving criminal juries a role in deciding the law itself.
In all criminal cases whatever, the jury shall have the right to determine the law and the facts.
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.
In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law…
In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.
Do not over-read these. State appellate courts have narrowed every one of them, and none has been held to license nullification outright. Indiana’s courts, for example, have said a jury has no more right to ignore the law than to ignore the facts. Oregon’s text contains its own limit on its face — “under the direction of the Court as to the law”. The provisions matter historically and occasionally shape jury instructions; they are not a permission slip.
The limits
What actually happens in a courtroom
Everything above describes a power. Almost nothing above describes a permission.
- The judge will instruct the opposite. Jurors are told they must take the law from the court and apply it, whatever they think of it.
- Lawyers may be barred from raising it. Courts routinely grant motions preventing defence counsel from arguing nullification or hinting at it.
- Saying it in jury selection ends your service. A prospective juror who says they would refuse to apply the law will be struck for cause.
- Saying it during deliberations can get you removed. That is the holding in Thomas.
- Lying to get seated is a separate offence. Juror immunity covers the verdict. It does not cover false answers under oath during voir dire, which can carry contempt or perjury exposure.
- It cannot convict anyone. A conviction returned against the evidence can be set aside by the trial judge and attacked on appeal.
- It is one verdict, not a rule. The law is unchanged for the next defendant.
Both things are true at once, and any honest description has to hold both: the power is real and unreviewable, and the entire apparatus of the trial is arranged so jurors will not use it or hear about it.
The record
It has cut in both directions
Nullification is usually introduced with its sympathetic history: colonial juries refusing seditious libel convictions, Northern juries in the 1850s refusing to convict people who helped enslaved people escape under the Fugitive Slave Act, Prohibition-era juries refusing liquor convictions.
The same power produced the opposite result. In the Jim Crow South, all-white juries acquitted white defendants in the face of overwhelming evidence of racial violence — the 1955 acquittal in the killing of Emmett Till being the case most often named. Some scholars argue the failure there lay in jury selection rather than in the nullification power itself, since those juries were not drawn from the whole community. Either way, the record is what it is.
A conscience-based veto is only as good as the consciences on the panel. Anyone forming a view on this should weigh both halves of the history, not one.
Corrections
Five things people get wrong
- “It’s illegal.” No. There is no offence of returning an acquittal. But it is not a legal right either, and courts actively discourage it. “Power, not right” is the accurate phrase.
- “It cancels the law.” No. It disposes of one prosecution. The statute is untouched.
- “Judges must tell juries about it.” No. Sparf and Dougherty settled that they need not, and federal judges do not.
- “One juror can nullify a case.” Not quite. A single holdout produces a hung jury, not an acquittal, and the prosecution may retry the case. Nullification proper requires the whole panel.
- “It only exists in America.” No. It comes from English common law, and English juries have done the same thing since — the 1985 acquittal of civil servant Clive Ponting under the Official Secrets Act is the standard modern example.
About this page
Why this exists
Jury nullification is one of the few legal concepts that courts have a working interest in most people never hearing about. That is not a conspiracy claim — it is the express reasoning of Sparf and Dougherty, which hold that the power is real and that jurors need not be told of it.
So this page is a reference, not an instruction. It exists so that “what is jury nullification?” has a short, sourced, honest answer that includes the parts advocates leave out.
This is not legal advice. It is a general explanation of American law, with English roots, written for people who are not lawyers. It is not a guide to conduct in any actual case, and it cannot tell you what to do if you are summoned for jury service. If you are facing charges, serving on a jury, or under investigation, talk to a lawyer licensed where you are.
Verify it yourself
Sources
Every claim above traces to one of these. Primary legal texts are quoted directly; everything else is summarised.
- Cornell Law School, Legal Information Institute — Wex: jury nullification
- Bushel’s Case (1670) 124 E.R. 1006 (C.P.) (Vaughan CJ)
- Trial of John Peter Zenger (N.Y. 1735), 17 How. St. Tr. 675
- Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794)
- Sparf and Hansen v. United States, 156 U.S. 51 (1895)
- United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969)
- United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972)
- United States v. Thomas, 116 F.3d 606 (2d Cir. 1997)
- United States v. Heicklen, 858 F. Supp. 2d 256 (S.D.N.Y. 2012)
- U.S. Const. amend. V (Double Jeopardy Clause); 18 U.S.C. § 1504
- Ind. Const. art. 1, § 19 · Md. Decl. of Rights art. 23 · Or. Const. art. I, § 16 · Ga. Const. art. I, § I, ¶ XI(a)