[4] In 1735, journalist John Peter Zenger was acquitted in New York by a jury that nullified a law making it a crime to criticize public officials.
In 1895, in Sparf and Hansen v United States, the Supreme Court held that its own earlier decision had been wrong, and that a jury had a duty to apply the law as set out by the trial judge.
[13] In the 21st century, many discussions of jury nullification center around drug laws that many consider unjust either in principle or because they disproportionately affect members of certain groups.
[15] Spock was convicted of conspiracy to counsel, aid, and abet registrants to avoid the draft, after the judge instructed the jury to apply the law as he laid it down,[16] but the United States Court of Appeals for the First Circuit overturned the conviction because the judge had committed prejudicial error in putting to the jury ten special yes-or-no questions.
Likewise, in a case involving ten Seattle protestors accused of blocking a munitions train carrying bombs destined for Vietnam, the jury acquitted after the judge allowed the defendants to talk about their motives and permitted the defense to ask the jurors to invoke their consciences and object to the war by acquitting.
[18] There was also a case in which a jury voted 9–3 to acquit peace activists despite their admission that they poured blood in a military recruiting center.
Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger's statements had already been extensively reported in the media.
King wrote, "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes or other mandatory sentence, and in assisted suicide, drug possession, and firearms cases.
The first major decision in this direction was Games v. Stiles ex dem Dunn,[23] which held that the bench could override the jury's verdict on a point of law.
The 1895 decision Sparf v. United States,[24] written by Justice John Marshall Harlan, held that a trial judge has no responsibility to inform the jury of its right to nullify laws.
In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.
This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge.
Then-chief judge David L. Bazelon wrote an opinion dissenting in part, arguing that the jury should be informed of its power to render a verdict according to its conscience if the law is unjust.
We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.
Circa 1996, Laura Kriho was the sole juror holdout in a drug possession trial, one eventually declared a mistrial.
[32] Additionally, while not asked about her opinions about the fairness of the drug laws or her own legal history, she was prosecuted for obstruction of justice for failing to volunteer this information on her own.
[37] In 2017, the Ninth Circuit in United States v. Kleinman reviewed the jury's instruction: "You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not.
Moreover, the statement that '[t]here is no such thing as valid jury nullification' could be understood as telling jurors that they do not have the power to nullify, and so it would be a useless exercise.
[45] Reviewing Conrad's book, University of Tennessee law professor Glenn Reynolds wrote that jury nullification is parallel with the doctrine of prosecutorial discretion.
[48] The statute under which Heicklen was charged, Title 18 USC Section 1504, reads in pertinent part: Whoever attempts to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any written communication, in relation to such issue or matter, shall be fined under this title or imprisoned not more than six months, or both.
[54] James Wilson, founding father and one of the leading legal theorists of the day, was one of the only sources from the era that addressed jury nullification.
[56] Some have argued that it is not sufficient to instruct jurors that they may judge the law if legal arguments are not made to them, that such incomplete information may indeed do more harm than good, and that we must return to the standard of due process represented by the Stettinius and Fenwick cases.
David L. Bazelon argued, "One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks.
That repellent practice cannot be directly arrested without jeopardizing important constitutional protections-the double jeopardy bar and the jury's power of nullification.