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Frequently Asked Questions

What does jury nullification refer to in capital cases?

In the criminal legal realm, a capital case is a case in which there is a possibility that the accused could be punished by being put to death if they are convicted.

When people talk about jury nullification in non-capital cases, they are usually referring to the jury’s power of delivering a verdict of not guilty during the trial phase, even if the accused offense or offenses have been proved beyond reasonable doubt. Jurors have this power in all criminal cases.

In a capital case, however, when jurors believe that someone has committed a crime so heinous that the death penalty is a possible punishment for it, usually they are not inclined to vote not guilty. Yet you will sometimes hear about jury nullification in the context of capital cases. What does this mean?

In the context of capital cases, jury nullification usually refers to the sentencing phase of the trial, rather than the phase determining whether the accused is not guilty or guilty. Rather than completely absolving someone of a heinous crime in a capital case, jurors who nullify in capital cases most often do so by sentencing people they believe guilty of such crimes to life in prison without the possibility of parole instead of death even if the evidence and testimony they've heard justifies a death sentence according to the sentencing guidelines and jury instructions.

When jurors are asked to determine whether a person convicted of a capital crime will be put to death or imprisoned for life with no possibility of parole, they are given the task of weighing aggravating factors against mitigating factors.

Aggravating factors are facts associated with the offense that increase the severity of the crime and warrant more severe punishment of the person convicted of that crime. For example, two common aggravating factors are (1) that the victim or victims are particularly vulnerable, such as children or the elderly, or (2) that the convicted person killed or attempted to kill more than one person.

Mitigating factors are facts associated with the offense that reduce the severity of the crime and warrant less severe punishment of the person convicted of that crime. Some examples of mitigating factors include (1) that a person committed the crime while under unusual and substantial duress, (2) that the person committed the crime under severe mental or emotional disturbance, or (3) another person who is equally culpable in the crime will not be punished by death.

If jurors find that the mitigating factors in a case outweigh the aggravating factors and consequently sentence the convicted person to life imprisonment without the possibility of parole, that is NOT jury nullification. In such a case, even if other people disagree with their conclusion from weighing those factors, they have done precisely what the law instructed them to do.

For jury nullification to occur in this context, one or more jurors would have to set aside the law to come to their verdict. For instance, if one or more jurors who believe that the aggravating factors outweighed the mitigating factors, but voted for life without parole anyway, that could be considered an example of jury nullification in such a case. Another example of a capital sentencing jury nullification scenario would be if one or more jurors voted for life without parole without giving any consideration whatsoever to the mitigating and aggravating factors or weighing them against each other.

Centuries ago, capital crimes automatically resulted in a penalty of death if the verdict was guilty. There was no separate phase to determine the sentence, nor an option to impose life without parole instead of death. If juries in such cases conscientiously chose to spare the defendant from the death penalty, their only option was to find the accused not guilty or guilty of some lesser offense that was factually inaccurate.

This often happened in cases where they judged death too harsh a sentence for the crime committed. For example, during the era of the Bloody Code in England, over 200 offenses were punishable only by death. These included most people would consider pretty minor compared to such a punishment. If an accused person was convicted of  things such as illegally cutting down a tree, being out at night with a blackened face, pickpocketing goods worth a shilling (an amount worth less than $50 in today's dollars), or any of a long list of other offenses, their sentence would be death. Jurors in these types of trials frequently found the accused either not guilty or guilty of lower level offenses that would not trigger such excessive punishment, even though they believed the accused was proved guilty of the death penalty-level offense of which they were accused.

Crimes punishable by death in today’s legal codes are extremely serious crimes, however, frequently described as “the worst of the worst” possible offenses that could be committed. Jurors in capital cases in the United States now have authority not only to decide if the accused is not guilty or guilty, but also to decide between sentencing someone found guilty either to life without parole or death.

Those who believe a defendant has committed such a crime are likely to support a guilty verdict in such a case. While there is little controversy over convicting a defendant who jurors believe has committed a heinous crime, however, there is significant disagreement over the appropriate penalty once a guilty verdict has been delivered.

Even though they are specifically screened during jury selection to prevent this, some jurors in the sentencing phase may decide that they cannot or will not impose a sentence of death, regardless of guidelines that might encourage them to do so. Some jurors with misgivings about imposing the death penalty are able to make it onto the jury. Others start the trial willing to impose the death penalty, but in the course of the trial, they have a change of heart. These people may choose to conscientiously exercise their right of jury nullification in the sentencing phase and vote for life without parole even if circumstances are such that the sentencing guidelines and jury instructions point to a death sentence.

It is their right to do so. Death is NEVER a required sentence in ANY capital case. Jury instructions, however, may not make this clear, and the United States Supreme Court, in Weeks v. Angelone (2000), allowed judges to mislead jurors on this point by refusing to clearly answer a question about unclear jury instructions. However, note that in the jury instructions in question, death was not a required sentenced as subtly indicated by the verbiage that:

"If you find from the evidence that the Commonwealth has proved, beyond a reasonable doubt, either of the two [aggravating circumstances], and as to that alternative, you are unanimous, then you may fix the punishment ... at death, or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment ... at [life] imprisonment.''

Though it was apparently not clear to the jury, as indicated by their question about their options, the "may"/"shall" dichotomy here indicates an option not to impose death in the former case as opposed to no option in the latter case but to impose life without parole. No matter how clearly or not this is expressed in any capital case, jurors always have the option to decline to impose the death penalty if they so choose.

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