Jury nullification occurs when a jury decides that a defendant is guilty of the crime he is charged with, but returns a verdict of not guilty. The jury ignores the judge’s instructions concerning the law and decides the case in accordance with their own conceptions of fairness.
Is jury nullification a new idea? Not at all. The principle goes back to the early days of the common law in England. In 1670, an English jury refused to convict William Penn (the man who founded the great state of Pennsylvania) for preaching Quakerism. The British government believed Quakerism to be subversive and made every effort to suppress it. The jurors were fined and one was imprisoned until he was released by a judge who ruled that jurors could not be punished for their verdicts.
In 1735 a New York jury acquitted John Peter Zenger, a newspaper publisher who was clearly guilty of seditious libel against William Cosby, the governor of the New York colony. Zenger’s statements against the governor were truthful, but still violative of the law as it was written at the time. By their verdict, the jury helped to establish the great principle of freedom of the press, which would later be written into the bill of rights of the new democracy.
During the wild and turbulent period of our history known as the Roaring Twenties, juries refused in many cases to convict persons engaged in the making of illegal alcohol. More recently, draft protestors, war protestors, nuclear armament protestors and people for or against abortion–to name but a few of the burning issues of the day–are sometimes acquitted because of the jury’s sympathy with or antagonism toward the law alleged to have been violated.
Juries clearly have the power to ignore the judge’s instructions and vote to acquit, no matter how strong the proof of guilt may be. And jury acquittals are final. They cannot be appealed for any reason. Although each juror can be and often is polled–that is, asked if he concurs in the verdict–he cannot be made to explain or to justify his verdict to anyone. So the temptation to practice jury nullification may be strong. But do the jurors have the right to do so? If jury nullification is practiced, will the defendant have received the kind of trial that he is guaranteed by the United States and the Colorado Constitutions?