THE RECORD - New York City Bar Association

J U R Y N U L L I F I C A T I O N
for voting to acquit, even when the trial judge believed that the verdict
contradicted the evidence. The concept of jury nullification became incorporated
in the American common law, notably in seditious libel cases,
the most well-known of which was the prosecution of John Peter Zenger.
Under our law, jurors may not be penalized or even called upon to explain
their verdicts, and as a result they have the power to acquit out of
compassion or lenity:
As courts have long recognized, several features of our jury trial
system act to protect the jury’s power to acquit, regardless of
the evidence, when the prosecution’s cases meets with the jury’s
‘moral[] disapprov[al]’. Since the emergence of the general verdict
in criminal cases and the famous opinion in Bushell’s Case,
124 Eng. Rep. 1006 (C.P. 1670), freeing a member of the jury
arrested for voting to acquit William Penn against the weight
of the evidence, nullifying jurors have been protected from being
called to account for their verdicts.
U.S. v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997. Moreover, juries may “acquit
out of compassion or compromise or because of their assumption of
a power which they had no right to exercise, but to which they were
disposed through lenity.” Standefer v. United States, 447 U.S. 10, 22 (1980).
SPARF V. UNITED STATES AND THE
MODERN “LAW” OF JURY NULLIFICATION
Although courts recognize that juries continue to have the power to
nullify, modern courts hold that juries do not have the right to do so. E.g.,
Thomas, supra, 116 F.3d at 615. This principle is generally expressed in the
concept that a judge may not instruct a jury that it may nullify the evidence.
The genesis of this principle can be found in Sparf v. United States, 151
U.S. 51 (1895). In Sparf, the Supreme Court ruled that juries do not have
the right to judge and decide the law. Defendants’ counsel in a murder
case had requested that the trial judge instruct the jury that it had the
option of convicting defendants of the lesser-included offense of manslaughter.
The trial court refused, and instead instructed the jury that it
“could not, consistently with the law arising from the evidence, find the
defendants guilty of manslaughter, or of any offense less than the one
charged...” 156 U.S. at 106. Accordingly, the Court held that judges, not
juries, decide the law, while juries decide the facts:
The trial was thus conducted upon the theory that it was the
T H E R E C O R D
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