The Unreviewable Verdict
Introduction
The American jury occupies an unusual place in the legal system. Judges determine what law governs a case. Lawyers argue over how that law applies. Juries are generally instructed to consider the evidence and apply the law as given by the court. Yet a jury that returns a not-guilty verdict cannot ordinarily be forced to reconsider that decision, even when the verdict appears inconsistent with the law or the evidence.¹
This creates a remarkable contradiction. A jury is instructed to follow the law but an acquittal can remain final even when jurors may have disregarded those instructions. The power exists in practice but doesn’t necessarily exist as a legal right.
Today, this phenomenon is commonly called jury nullification. But the term itself is relatively modern. The practice is centuries older.² The history of that distinction reveals a larger debate about the jury’s purpose: Is a jury simply a fact-finding body or is it also a final safeguard against the government’s application of the law?
Before “Nullification”
The practice commonly associated with jury nullification long predates the phrase itself. In seventeenth-century England juries sometimes resisted judges who attempted to force them toward particular verdicts. One of the most famous examples arose from the 1670 trial of William Penn and William Mead who were prosecuted after participating in a religious assembly. The jury returned a not-guilty verdict despite pressure from the court to reconsider. When the jurors refused several were imprisoned and fined.³
The case became an important symbol of jury independence. Its significance was not simply that jurors could acquit defendants but more importantly the government could not easily compel a jury to reach a particular verdict.
That idea crossed the Atlantic. Colonial American juries too sometimes refused to enforce laws they regarded as unjust or illegitimate. The jury could therefore serve as something more than a mechanical fact-finder but as a point of resistance between an individual defendant and the government.⁴
But that understanding of the jury would gradually change.
The Rise of Judicial Control
During the nineteenth century American courts increasingly separated the responsibilities of judges and juries. Judges would determine questions of law while juries determined questions of fact. That distinction became especially important in Sparf v. United States, decided by the Supreme Court in 1895.⁵
The defendants in Sparf argued that the jury should have greater authority to determine the law governing the case. The Supreme Court rejected that position holding that juries in criminal cases were obligated to receive the law from the court and apply it to the facts.⁶
The decision marked a major turning point.
The jury’s role became more clearly defined, i.e. responsible for deciding what happened not for establishing what the law was. But Sparf created an unusual problem.
Even while rejecting a formal right of juries to disregard the law the Court recognized that a criminal acquittal could not simply be overturned because the jury had reached the wrong conclusion. Power Without Permission
This distinction is at the center of modern jury nullification.
Suppose a criminal jury believes that the government has proven every element of an offense beyond a reasonable doubt. The judge instructs the jurors that the law requires a conviction. The jurors nevertheless return a general verdict of not guilty. The court cannot simply replace that verdict with a guilty verdict. The prosecution generally cannot appeal an acquittal because of the constitutional protection against double jeopardy.⁷
The jury has therefore exercised a practical power that the law does not necessarily recognize as a legitimate right. That is what makes the doctrine so unusual.
A juror may possess the power to produce an unreviewable acquittal while lacking a recognized right to disregard the law and this distinction determines what judges are permitted to tell juries.
The “Nullification” Word
The phrase “jury nullification” became common only much later than the practice it describes.⁸ That matters because terminology influences how legal institutions understand themselves.
“Nullification” suggests that jurors are doing something improper, that they are supposedly invalidating or overriding law. But the word also obscures what actually happens.
A jury does not erase a statute, it does not rewrite the criminal code, it does not issue a binding legal rule for future cases. It returns a verdict in one particular prosecution. The legal system then treats that acquittal as final.
The word therefore describes the effect of the verdict more dramatically than the mechanism itself. The jury is not literally canceling the law but refusing to impose criminal liability in a particular case.
That distinction raises a question that has remained unresolved for generations, i.e. should the legal system describe the jury’s power as a constitutional safeguard, an undesirable loophole or simply an unavoidable consequence of the jury trial?
Dougherty and the Modern Debate
The D.C. Circuit confronted the issue directly in United States v. Dougherty in 1972.⁹ The defendants in Dougherty wanted the jury instructed that it possessed the power to disregard the law to acquit them. The court refused and Judge Harold Leventhal acknowledged the historical existence of jury nullification but concluded that the jury should not be affirmatively instructed to exercise it.¹⁰ The court emphasized the danger of transforming an exceptional power into an announced license for jurors to disregard legal rules.
The concern was institutional. If every jury were told that it could decide whether a law deserved to be enforced the legal system could become unpredictable. Different juries could apply the same statute differently based on their personal views of justice.
The criminal law would no longer operate according to a uniform rule but its application could depend on the composition of twelve individuals.
That prospect deeply unsettles the traditional rule-of-law model.
Mercy or Disorder?
Supporters of jury nullification see the issue differently. They argue that rigid application of criminal statutes can sometimes produce results that conflict with justice, conscience or community standards. A jury because it is drawn from the community rather than appointed as a legal institution can provide a final layer of judgment between the government and the accused.¹¹
History gives the argument some force. Colonial juries occasionally resisted laws they believed were unjust. Later juries have sometimes acquitted defendants in cases involving controversial prosecutions, unpopular laws or circumstances in which punishment seemed disproportionate.¹²
The jury’s independence can therefore act as a safety valve. But every safety valve creates a risk. The same independence that permits a jury to resist an unjust application of law can permit it to ignore law for arbitrary or prejudicial reasons.
A juror’s conscience can serve justice but it can also produce inconsistency.
The Rule-of-Law Problem
The strongest objection to nullification is not that jurors are incapable of moral reasoning but that law is supposed to bind institutions.
A statute is enacted through a legislative process. Judges interpret it. Prosecutors enforce it. Jurors are supposed to apply it to the facts. Allowing each jury to decide independently whether the law itself deserves obedience could weaken that structure.
The Supreme Court expressed this concern in Sparf, warning that allowing juries to determine the law for themselves would undermine the certainty of criminal law.¹³
A defendant in one courtroom could be convicted while an identically situated defendant elsewhere could be acquitted because another jury rejected the statute. The result might be compassionate but would not necessarily be consistent.
Yet Acquittals Are Different
There is an important asymmetry in criminal trials. A jury can effectively disregard the law when returning an acquittal but it cannot do the same thing in a way that creates additional punishment.
A wrongful conviction can be appealed and reversed. A wrongful acquittal generally cannot. That asymmetry is intentional. The Constitution places unusually strong protections around criminal defendants because the government has the power to deprive people of liberty.
The jury’s finality therefore reflects another principle, i.e. it is preferable to tolerate some erroneous acquittals rather than give the government unlimited power to retry an accused person.
Jury nullification exists inside that broader structure of finality.
It is not a separate constitutional amendment but partly the unavoidable consequence of how the criminal jury system is designed.
The Modern Jury
Modern courts have generally resisted treating nullification as something jurors should be affirmatively encouraged to use.
In United States v. Wilkerson the D.C. Circuit reaffirmed that the Sixth Amendment does not give a defendant the right to a juror who intends to disregard the law and reiterated that defendants are not entitled to a jury instruction on nullification.¹⁴ That approach preserves the official structure of the jury trial.
Jurors are told the law and expected to follow it. The legal system simply cannot completely undo an acquittal after the fact.
Why It Matters
Jury nullification exposes a tension at the heart of American criminal justice. The legal system wants predictable rules, judicial authority and consistent enforcement. It also wants independent juries capable of protecting defendants from improper governmental power. Those goals can coexist most of the time but cannot always perfectly.
The jury is both an institution of law and a body of ordinary citizens. It is expected to follow legal instructions while retaining the final authority to return an acquittal that cannot ordinarily be reversed.
That makes the jury neither completely subordinate to the judge nor completely independent of the law but occupies a space between the two.
Conclusion
The phrase “jury nullification” makes the phenomenon sound simple but it is not. The practice is centuries old but the terminology is comparatively recent. The Supreme Court rejected the idea that juries possess a formal right to determine the law yet criminal acquittals remain extraordinarily hard for courts to undo. Modern courts generally refuse to instruct jurors that they may disregard the law while recognizing that an acquittal reached for that reason may remain final.¹⁵
The contradiction is difficult to eliminate because it is built into the architecture of the jury trial itself. The jury is supposed to follow the law but in the most consequential moment of a criminal case, twelve citizens can have the final word.
That is not necessarily a flaw but a reminder that American criminal justice has never been built entirely on judicial authority or legislative commands. It has also depended on the judgment of ordinary citizens.
And sometimes the most powerful decision a jury can make is one the legal system will never review.
See U.S. Const. amend. VI; Sparf v. United States, 156 U.S. 51, 102–03 (1895).
See generally Note, The Semantics of Jury Nullification: How Terminology Shapes (and Misshapes) the Jury’s Role, 139 Harv. L. Rev. 964, 964–66 (2026).
See Note, supra note 2, at 966–69.
See id. at 969–75.
Sparf, 156 U.S. 51.
Id. at 102–03.
See U.S. Const. amend. V; Sparf, 156 U.S. at 101–03.
Note, supra note 2, at 964–66.
United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).
Id. at 1130–37.
See id. at 1132–37.
See Note, supra note 2, at 969–80.
Sparf, 156 U.S. at 101–03.
United States v. Wilkerson, 966 F.3d 252, 258–60 (D.C. Cir. 2020).
See Dougherty, 473 F.2d at 1130–37; Wilkerson, 966 F.3d at 258–60.
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