Can a Jury Ignore the Law? Nobody Wants to Say So Out Loud

The capacity follows from two rules that exist for other reasons. A jury's acquittal is final, since a person cannot be tried twice for the same offence, so no appeal corrects it. And jurors cannot be punished or questioned for the verdict they return, so nothing compels them to explain or justify it. Together these mean that a jury which decides to acquit somebody it believes did the act can simply do so, and the system has no response. This is not a right granted anywhere but a consequence of protections built for other purposes, which is precisely why courts find it difficult to discuss, since acknowledging it looks like inviting it.

A handful of historical trials shaped the position:

• •Penn and Mead in 1670, whose jurors were imprisoned for refusing to convict
• •Bushel's Case that same year, which established that jurors cannot be punished for a verdict
• •The trial of John Peter Zenger in 1735, acquitted of seditious libel against the evidence
• •Nineteenth century American prosecutions under fugitive slave laws, where juries repeatedly refused to convict
• •Prohibition era trials, where acquittal rates rose so high that enforcement became impractical
• •British trials of protesters, where several acquittals have followed admitted acts

The position taken almost everywhere is that the power exists and must not be advertised, which is an uncomfortable compromise defended on practical grounds. Judges instruct juries that they must apply the law as given, and in several jurisdictions a lawyer who invites a jury to disregard the law can be stopped or sanctioned. The reasoning is that a power operating rarely and from conscience acts as a safety valve, while a power operating routinely and by invitation would make outcomes depend on the composition of the jury rather than on the law, which is arbitrary in both directions. The counterargument is that jurors are entitled to know what they are actually able to do, and that concealing it is a form of misleading them.

The awkwardness is specific to systems using lay juries with unreviewable acquittals, and most legal systems in the world have neither. Systems built on the continental European model use professional judges, or panels mixing judges and lay members, who must give reasons for a verdict and whose decisions can be appealed by the prosecution, so a decision to disregard the law would have to be written down and would be overturned. Several countries have introduced lay participation in recent decades under arrangements that deliberately avoid this outcome, requiring reasoned verdicts and permitting appeal. Where the power does exist, the frequency with which it is used is unknown and unknowable, since a jury never has to say why it acquitted and researchers in several countries are prohibited from asking.

Discussions of this power tend to cite the cases where it protected people and to pass over the cases where it did not, which gives a distorted picture. The same mechanism produced repeated acquittals of white defendants charged with murdering Black people in the American South, where juries drawn from the local population refused to convict regardless of the evidence, and those acquittals were final in exactly the same way. Juries have acquitted in cases of racial and political violence elsewhere. The power has no direction of its own, since it delivers whatever the jury's conscience contains, and a community whose conscience is corrupted delivers that. Any honest account has to hold both sides of this together rather than selecting the flattering examples.

The capacity follows from an acquittal being final and jurors being unpunishable, neither of which exists for this purpose. Bushel's Case in 1670 established that jurors cannot be punished for their verdict, and prosecutions under fugitive slave laws and prohibition collapsed because juries refused to convict. Courts allow the power and forbid advertising it, and the same mechanism produced acquittals in racial murder cases.