the Power to Acquit
Jury nullification, when a jury returns a verdict of not guilty despite their belief that the defendant has broken the law, has a paradoxical stance in the American criminal justice system. At its core, there lies a conflict between two foundational ideals: one being the democratic legitimacy of citizen juries serving as a check on governmental power and, in broader terms, community conscience; the other, the rule of law principle requiring consistent, fair, and predictable application of statutory and judicial commands. This doctrine allows for safeguarding against unjust laws or excessive prosecution, although critics warn against it, raising concerns about arbitrary decisions and the erosion of legal uniformity. Recently, the spotlight on jury nullification has grown tighter and brighter, resulting from high-profile grand and petit jury results in politically charged prosecutions, which have forced renewed attention to its normative dimensions and aspects.
The legal posture of jury nullification is best captured by the dual propositions that juries have the power to acquit in contravention of the strict letter of the law, yet they do not have a right to be instructed by the court to nullify or to be told they may refuse to apply the law. On the power side, appellate courts have acknowledged that once a jury returns a verdict of not guilty, double jeopardy prevents retrial and so the verdict stands—even if it is plainly inconsistent with the evidence or law. On the right side, courts have uniformly held that judges may refuse to provide instructions that encourage or even inform jurors about their power to nullify. A seminal case is United States v. Moylan, in which the Fourth Circuit stated that while jurors have the power to acquit contrary to the law, the court was not required to instruct them that they had the power. Similarly, more recently, courts have characterized so-called “anti-nullification” instructions—telling jurors they must apply the law—as constitutionally permissible and frequently upheld. The model federal jury instructions continue to direct jurors to follow the law and the judge’s instructions, without mention of nullification.
At the same time, the doctrine intersects with First Amendment issues in the public eye. While a defendant or attorney in the courtroom may not argue for nullification during trial, individuals outside the courtroom—whether in public or private places—may speak about nullification as a form of free speech that is protected by the Constitution. As such, the system enforces an “in-court blackout” in which nullification advocacy is hidden, while still permitting public civic education about juror power.
Research on jury nullification is limited but informative. Studies show that when jurors are given instructions that specifically reference their power to acquit or to judge the law, verdicts may shift, but the effect is neither large nor uniform. For example, a summary of criminal justice literature by the Office of Justice Programs found that while nullification instructions can alter the way a jury functions, whether they increase acquittals depends heavily on case type, community attitudes, and whether the instructions are explicitly specific. One advocacy group estimates that nationwide nullification occurs in roughly 3–4% of jury trials, though these estimates are contested and likely understate the total impact of juror discretion. These findings suggest that reforms involving instruction or education must account for the complex interaction among juror perceptions, local norms, and case salience; wide-scale mandates without empirical testing risk unintended consequences.
Jury nullification has its roots in colonial and early American practices. Jurors in colonial America sometimes refused to convict for violations of British law, and the English case Bushell’s Case (1670) is often viewed as the foundation. A jury that acquitted William Penn and others despite the judge’s pressure led to the prohibition of punishing jurors for their verdicts. In the U.S., juries during the antebellum era sometimes refused to enforce the Fugitive Slave Act because they believed it unjust—a classic example of nullification in a political context. Scholars such as Jenny E. Carroll argue that nullification underscores the role of the citizen-juror as co-author of legal meaning, pushing law beyond static statutory text to communal norms and values. More skeptical scholars, like John W. Bissell, characterize nullification as a perversion of the system, arguing that juries, unlike judges or legislators, should not sit as “second defenders” rewriting the law case by case.
The normative debate hinges on several fault lines. First is democracy versus uniformity. Defenders of nullification argue that juries are a democratic institution—“the peers of the community”—capable of preventing enforcement of unjust or unpopular laws, and thus provide a check on governmental power. Critics respond that while local conscience is important, the criminal justice system demands uniform standards to ensure fairness and equal protection; allowing juries to selectively block enforcement undermines that. Second is mercy versus arbitrariness. Nullification can enable juries to show mercy in cases in which they cannot decide, allowing them to decline convictions in nonviolent, low-harm offenses that nevertheless carry severe punitive regimes. Critics argue that mercy is better administered by legislatures or prosecutors with consistent criteria than by ad hoc jury verdicts hidden from review. Third is rule of law versus political resistance. In politically contentious prosecutions (civil rights era or government crackdown cases), juror resistance may serve as legitimate democratic pushback. Yet equally, it may allow bias, local majorities, or injustice to dictate outcomes regardless of statutory purpose or victim interest. Fourth, transparency and accountability issues loom large because jury deliberations are secret and verdicts are unreviewable. Nullification leaves no accountability trail, raising concerns about equality, consistency, and litigant rights.
Recent events highlight how jury or grand jury discretion can become a flashpoint in a politically charged context. For instance, in 2025, several grand juries in the District of Columbia declined to return indictments in high-profile cases brought by federal prosecutors—a phenomenon widely portrayed in media coverage as trespassing on enforcement prerogatives. These episodes have sparked renewed concern that juror or grand-juror discretion may operate as a quasi-political veto over prosecutions, particularly where questions of race, class, or partisan polarization are involved. In response, some commentators urge greater statutory guidance, prosecutorial reform, or changes in grand jury instruction. The renewed attention places jury nullification not as an academic curiosity but as a live institutional pressure point. Balanced jury instructions represent one moderate reform path. For example, an instruction might acknowledge the tremendous responsibilities of jurors and the importance of following the law while encouraging jurors—through civic education channels—to effect law change via the political process rather than verdicts of veto.
In all, jury nullification remains a perpetual paradox: juries have the practical power to defy statutory commands, yet the legal system does not acknowledge that as a right, and judicial instruction explicitly discourages it. The doctrine appeals to democratic sensibilities and community participation in justice, yet simultaneously threatens equal treatment and rule-of-law stability. Recent high-profile grand jury refusals highlight its contemporary resonance and institutional fragility. The most promising path forward rejects both wholesale endorsement and blanket suppression of nullification. Instead, the law should aim for calibrated reforms: ensure prosecutorial restraint, improve public juror education, refine jury instructions in an empirically grounded way, and preserve the jury as a democratic institution.
Bibliography
American Civil Liberties Union. “It’s Perfectly Constitutional to Talk About Jury Nullification.” ACLU.org. Last modified January 22, 2019. Accessed November 2, 2025. https://www.aclu.org/news/free-speech/its-perfectly-constitutional-talk-about-jury-nullification.
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Office of Justice Programs, U.S. Department of Justice. “Considering Jury Nullification: When May and Should a Jury Reject the Law to Do Justice?.” National Criminal Justice Reference Service (NCJRS). Accessed November 2, 2025.
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https://constitutioncenter.org/the-constitution/amendments/amendment-vi/interps/151
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https://www.akleg.gov/basis/get_documents.asp?docid=20611&session=28
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