Jury nullification occurs when a jury returns a verdict that is contrary to the law given them by the Judge. In a criminal case jury nullification occurs when the jury, while believing the accused to be guilty, nevertheless return a verdict of not guilty. Usually this happens when the jurors either don’t like the criminal law in question or don’t believe that the criminal law is being appropriately applied. When a jury does this they are thought to “judge” the law.
An example of nullification in Michigan’s recent past would be the not guilty verdicts rendered in three of the five trials against Jack Kevorkian in the late 1990s. Dr. Kevorkian was accused of helping individuals voluntarily end their lives. Called “assisted suicide,” Dr. Kevorkian had created what was referred to as a “suicide machine” that could be operated by the individual wishing to end their life. This case represents a perfect example of and instance where jurors “judged” the law unfavorably, or at least the application of that law, and returned verdicts contrary to the judge’s instructions. For a fictional portrayal of this case, with Al Pacino playing Jack Kevorkian, see: You Don’t Know Jack.
The Kevorkian cases demonstrate that in Michigan the jury has the power but not the right to nullify the law. Understanding what is meant by the statement that jurors have the “power” but not the “right” to nullify requires a much more detailed explanation of nullification, and this series of articles serves to provide this explanation.
Why Don’t Michigan Juries Have the Power to Nullify the Law?
The simple answer is because Michigan jurors take an oath to follow the law. As the law in Michigan has developed over the decades, the right to nullify has been constrained, and this is reflected in the jury instructions. For example, at the beginning of every criminal trial, the jury will be given an oath by the Judge where they will swear to “justly reach a true verdict.” The specific oath is:
Each of you do solemnly swear (or affirm) that, in this action now before the court, you will justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on the evidence introduced and in accordance with the instructions of the court, so help you God.
Thus, jurors are sworn to render their verdicts “in accordance” with the law (instructions) given them by the Judge. Then, at the end of the trial, the Judge will further instruct the jury that they are to “judge” the facts of the case only. By implication, they are not to “judge” the law itself. This is partly why jurors are fact-finders whereas judges are “keepers” of the law. For more information on this demarcation see the prior article addressing the difference between questions of law and questions of fact.
In this jury instruction the jurors are told, by the judge, that “my” role is to instruct you about the law that applies to this case. Further that that you (the jury) must take the law as I give it to you. The jurors are then told that their job is decide the facts of the case, and then to apply these facts “to the law as I give it to you.” And finally, that their decision about the facts is final.
Why Do Michigan Juries Have the Right to Nullify the Law?
This non-enumerated “right” to judge the law arises out of the concept of limited government. Consequently, jurors may still, and still do, nullify the law because this “power” cannot be taken away from them. This is because what happens in the jury room is totally private, and neither judge’s nor prosecutors, nor defense attorneys, may know how juries deliberate or on what basis they reach their verdict. Essentially, juries may nullify, but only if they keep that fact a secret. In most cases of nullification however, jurors enter their not guilty verdicts without understanding that by doing so they are nullifying the law. This is likely what happened in the Kevorkian acquittals. This question is more fully answered in the next article in this series entitled “Jury Nullification is Consistent with the Concept of Limited Government.” You may also wish to read the final article in this series entitled “What Does Michigan Law Say About Jury Nullification?”