Supreme Court Justice Sotomayor supports jury nullification


Current Supreme Court Justice Sonya Sotomayor is now on record: she says the prevailing Second Circuit view of jury nullification is too harsh and that juries could benefit from being aware of their option of jury nullification.

In her hour-long talk at NYU yesterday, Justice Sotomayor questioned the Second Circuit’s decision in U.S. v. Thomas, a decision that savaged jury nullification as lawlessness.

Sotomayor Sees Larger Role For Jury Nullification (Free registration required to view.)

Supreme Court Justice Sonia Sotomayor said Monday that the Second Circuit’s harsh view of jury nullification may be wrongheaded, and that there is a place for juries to make findings that contradict the law — a topic that came up in the context of Sen. Claire McCaskill’s recent jury service.

Speaking to a packed auditorium at the New York University School of Law on Monday afternoon, Justice Sotomayor said juries are sophisticated organisms that could benefit from being aware of the option of nullification.

The Second Circuit, where Justice Sotomayor once sat, said in 1997 in U.S. v. Thomas that a juror’s attempt to nullify the law and instead find in favor of their conscience is grounds for dismissal from the jury.

Justice Sotomayor said the Second Circuit may have been wrong to so assiduously close off nullification.

“As we govern in the system, and watching it, I’m not so sure that’s right,” she said. “There is a place, I think, for jury nullification — finding the balance in that and the role judges should play.”

During contentious deliberations, the trial judge in U.S. v. Thomas dismissed Juror Number 5—the only black juror in a trial of all black defendants—based on the belief that Juror Number 5 was engaging in jury nullification and would not convict the defendants under any circumstances. Subsequently, the remaining 11 jurors convicted all but one of the defendants on one or more counts against each of them.

In U.S. v. Thomas, the court held that:

…the district court erred in dismissing a juror, based largely on its finding that the juror was purposefully disregarding the court’s instructions on the law, where the record evidence raised the possibility that the juror’s view on the merits of the case was motivated by doubts about the defendants’ guilt, rather than by an intent to nullify the law.

But the court had harsh words as far as jury nullification. It found that “a deliberating juror’s intent to nullify constitutes “just cause” for dismissal” under Federal Rules of Criminal Procedure 23(b). While acknowledging that jurors who nullify are protected from punishment, the court stated in no uncertain terms:

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.   Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.


A jury has no more “right” to find a “guilty” defendant “not guilty” than it has to find a “not guilty” defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law.   Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

Whereas the Second Circuit has angrily mischaracterized jury nullification in terms that suggest it is illegal, Justice Sotomayor’s comments indicate quite the contrary. According to NYU, “Justice Sotomayor is the only justice on the U.S. Supreme Court who has presided over a trial by jury.”

Essentially, the only current Supreme Court justice who has presided over a jury trial is on record with comments that effectively verify that jury nullification is a legal, valid option that jurors can exercise. Beyond that, she actually seems to advocate that jurors be informed about this option and even that it is appropriate to exercise it in some circumstances.


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