Commentary

Practice Pointer

Prosecutors would have you believe that it is against the law to mention the term “jury nullification” in a courtroom. Don’t believe it.

The leading case with respect to whether the jury should be apprised of the nullification option by the trial court is United States v. Dougherty.’ The facts in Dougherty were undisputed. Nine individuals broke into the Washington, D.C. offices of the Dow Chemical Company. They threw documents about the place and vandalized equipment. It was the height of the Vietnam war and Dow Chemical was manufacturing napalm for the U.S. government. The purpose of the break-in was to draw attention to Dow’s role in the war.

The so-called “D.C. Nine” were prosecuted for malicious destruction of property and burglary. At trial, the defendants asked the trial judge to apprise the jury of its nullification option or, alternatively, to allow defense counsel to discuss the jury’s nullification prerogative during closing argument. The trial judge denied both requests. The “D.C. Nine” were each convicted of malicious destruction. The jury acquitted on the burglary charges, but convicted on the lesser included offense of unlawful entry.

On appeal, the defendants maintained that their convictions had to be overturned because they had a right to have the jury apprised of its nullification prerogative. The court of appeals rejected that argument. Thus, Dougherty stands for the proposition that a trial court does not abuse its discretion when it declines an invitation to deliver a nullification instruction. The key point that is often overlooked is that the propriety of a jury nullification charge is a discretionary matter for the trial judge .2

Prosecutors have been sowing confusion on this point of law by arguing that the Dougherty case stands for the proposition that a jury nullification instruction is totally inappropriate and constitutes reversible error. Unfortunately, that sleight-of-hand 3 has been successful. Because there is a split in the authorities, you’ll have to check where the law stands in your federal circuit and state.

As a practical matter, it’s true that most trial judges are hostile to jury nullification and will not be inclined to give you the instruction you want, However, there will be scenarios when the stars may be aligned in your favor-such as when your judge is (a) outraged by government misconduct; or (b) angered by a prosecutor who has overcharged your client; or (c) appalled by the government’s reliance upon the testimony of sleazy informers. When those occasions arise, you may want to request a nullification instruction. Whatever happens at trial, be sure to pounce on the government’s appellate brief if it misstates the holding in Dougherty.

The defense bar is at a distinct disadvantage on this point of law. That’s because if the trial judge gives a nullification instruction and the outcome of the case is an acquittal, there will be no reported decision. And where the outcome is a conviction, the nullification point will not come up on appeal (since the court gave the instruction requested by the defense). Consequently, virtually all of the reported decisions are cases where the instruction was denied. That confluence of events gives a misleading impression on this important point of law and that explains why everybody seems to buy the prosecutorial line that jury nullification instructions are totally inappropriate.

To counter that disadvantage, I intend to collect favorable outcomes from trial lawyers and make this data base available to all practitioners. So kindly contact me if a trial judge gives your jury a nullification instruction and/or allows you to discuss the nullification option in your closing argument. 4


  1. 473 F.2d 1113 (D.C. Cir. 1972).
  2. See United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1991); State v. Maloney, 490 A.2d 772, 775 (N.H. 1985). Note also Wyley v. Warden, 372 F.2d 742 (4th Cir. 1967); Alan Scheflin and Jon Van Dyke, “Jury Nullification: The Contours of a Controversy,” 43 LAw AND CONTEMPORARY PROBLEMS 51 (1980)(where the authors discuss a 1973 trial in federal district court in which the judge allowed defense counsel to make a nullification argument directly to the jury).
  3. See e.g. United States v. Cooley, 787 F. Supp. 977, 992 (D. Kan. 1992)(“[N]ullification instructions should not be issued”).
  4. Cato Institute, 1000 Massachusetts Ave. NW, Washington D.C. 20001: phone (202) 842-0200/fax (202) 842-3490.
Timothy Lynch is director of the Cato Institute’s Project on Criminal Justice.