Jury nullification in New York is a power jurors have but not a right anyone will tell them about: a jury can vote to acquit a criminal defendant even when the evidence clearly supports a conviction, and no court can undo that verdict. The entire courtroom apparatus, from the judge’s instructions to the rules governing defense lawyers, is built to keep jurors from learning about this power or acting on it deliberately. The power exists only because, once an acquittal is entered, there is no legal mechanism to reverse it.
A Power, Not a Right
No provision of the New York State Constitution or any state statute gives jurors the right to disregard the law. The U.S. Supreme Court settled the question at the federal level in 1895 in Sparf v. United States, holding that “it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts.”1Justia US Supreme Court. Sparf and Hansen v. United States, 156 U.S. 51 (1895) The Court acknowledged jurors have the physical power to ignore instructions but made clear that using it violates their duty.
The Second Circuit, which covers all federal courts in New York, went further in United States v. Thomas (1997), stating it “categorically reject[s] 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.”2Justia Law. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) The court compared a juror who nullifies to one who votes guilty despite insufficient evidence, calling both lawless and a denial of due process.
What keeps the power alive despite this hostility is structural. A judge cannot direct a guilty verdict in a criminal case. The government cannot appeal an acquittal. Nullification survives not because anyone endorsed it, but because no one can touch it after the fact.
Why an Acquittal Verdict Stands
Two features of criminal procedure make a nullification verdict permanent the moment it is delivered.
The first is deliberation secrecy. Jurors do not have to explain their reasoning or justify their verdict to anyone. A not-guilty verdict requires no written rationale, so there is no way for a court to distinguish an acquittal based on reasonable doubt from one based on a conscious decision to reject the law. A judge may suspect nullification happened, but suspicion supports no legal action after the verdict is recorded.
The second is double jeopardy. The Fifth Amendment prohibits the government from putting a person on trial twice for the same offense, and New York reinforces this through Criminal Procedure Law Section 40.20: “A person may not be twice prosecuted for the same offense.”3New York State Senate. New York Code CPL 40.20 – Previous Prosecution; When a Bar to Second Prosecution The protection is absolute as to acquittals: “The acquittal being final, there is no governmental appeal constitutionally possible from such a judgment.”4Legal Information Institute. Reprosecution After Acquittal Once the jury says not guilty and is discharged, the case is over.
Why a Lone Holdout Changes Nothing
A nullification attempt only succeeds if all twelve jurors vote to acquit. If even one juror insists on following the law and voting to convict, the result is not an acquittal but a hung jury, and the protections above do not apply.
When a jury cannot reach a unanimous verdict, the judge declares a mistrial. Double jeopardy does not bar retrial after a deadlocked jury, which means the prosecution can bring the same case again in front of a new panel. The decision whether to retry belongs to the prosecutor, who may push forward, offer a plea, or drop the charges. A juror who holds out for nullification but cannot persuade the rest has accomplished nothing permanent; the defendant goes through the whole process again.
The pressure in that deliberation room is also calibrated against the holdout. When a jury reports it cannot reach a verdict, the judge delivers a supplemental instruction known as an Allen charge. New York’s version tells jurors to “resume your deliberations with an open mind,” to “have the courage to be flexible,” and to change their position “if a re-evaluation of the evidence convinces you that a change is appropriate,” and reminds them their decision must be “based solely on the evidence and the law.”5New York Courts. CJI2d Deadlocked Jury Charge The charge is careful not to demand any particular verdict, but it is designed to move holdouts, and for a juror attempting to nullify, it raises the social and procedural cost of staying put.
What Can Happen to a Juror Who Tries
Dismissal During the Trial
New York law allows a judge to discharge a seated juror during trial if the court finds, based on facts unknown at jury selection, that the juror is “grossly unqualified to serve” or “has engaged in misconduct of a substantial nature.”6New York State Senate. New York Code CPL 270.35 – Trial Jury; Discharge of Juror; Replacement by Alternate Juror If a juror announces during deliberations that they intend to ignore the law, the judge has grounds to remove them and seat an alternate.
The Second Circuit addressed removal directly in Thomas, holding 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.”2Justia Law. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) But the court set a high bar. A juror can be removed for refusing to follow the law only when the record is “clear beyond doubt” that the juror is not simply unpersuaded by the prosecution’s evidence. If there is any possibility the holdout genuinely doubts guilt, the court must leave them on the panel. In practice, that means a juror who keeps their reasoning to themselves is largely protected; a juror who announces an intent to nullify is not.
Perjury Exposure From Voir Dire
Prospective jurors are questioned under oath during jury selection about their ability to be fair and follow the law. A juror who conceals a predetermined intent to nullify is giving false sworn testimony on a material matter. Under New York Penal Law Section 210.15, perjury in the first degree is a Class D felony.7New York State Senate. New York Penal Law 210.15 – Perjury in the First Degree Prosecutions of jurors on this theory are extraordinarily rare, in part because proving a secret pre-trial intent is nearly impossible. The exposure, however, exists.
There is also the oath itself. Before hearing evidence, every juror in New York swears under Criminal Procedure Law Section 270.15 to “try the action in a just and impartial manner” and to “render a verdict according to the law and the evidence.”8New York State Senate. New York Code CPL 270.15 – Trial Jury; Examination of Prospective Jurors; Challenges Generally A juror who votes to acquit based on disagreement with the law rather than doubt about the evidence is, strictly speaking, breaking that oath, which is why courts treat nullification as misconduct rather than a legitimate exercise of judgment.
What the Judge Will and Won’t Tell the Jury
Judges in New York use the state’s Criminal Jury Instructions to frame the jury’s role as narrow. Jurors are told to accept the law as the judge explains it and apply it to the facts they find in the evidence.9New York Courts. Criminal Jury Instructions and Model Colloquies The language is mandatory, not suggestive. No judge will mention that the jury has the power to reject the law entirely.
If a defense attorney or a self-represented defendant asks the court to instruct the jury on its nullification power, the judge will refuse. New York courts have consistently held that defendants have no right to such an instruction, on the view that telling jurors they can ignore the law would undermine the trial itself.
What Defense Attorneys Can and Cannot Argue
A defense attorney in New York cannot ask a jury to disregard the law. They cannot use the word nullification, argue that the statute is unjust, or suggest the jury should acquit as a form of protest. A judge will shut the argument down and may instruct the jury to disregard it.
The most directly relevant professional conduct rule is Rule 3.4(c), which prohibits a lawyer from disregarding, or advising a client to disregard, “a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding.”10New York Courts. New York Rules of Professional Conduct – Part 1200 Because the court instructs jurors to follow the law, an attorney urging the opposite is arguably violating this rule. Rule 3.3, candor toward the tribunal, can also apply if the attorney frames nullification as a legal right, because telling jurors they have a right to nullify would be a false statement of law.11Legal Information Institute. 22 NYCRR 1200.3.3 – Conduct Before a Tribunal An attorney who persists risks being admonished in front of the jury or held in contempt. The same restrictions apply to a pro se defendant; the court does not relax them for someone representing themselves.
What a defense attorney can do is argue the case hard on its facts: challenge witness credibility, question the investigation, and emphasize sympathetic facts about the defendant’s circumstances. Skilled lawyers build closings that make jurors uncomfortable convicting without ever asking them to reject the law. The line between a powerful closing and a nullification plea is narrow, and experienced defense counsel know where it falls.
Federal Court in New York Is Stricter
Many criminal cases in New York are prosecuted in federal court, and the environment there is more hostile to nullification than state court. Sparf remains binding precedent that jurors have no right to be told about the power.1Justia US Supreme Court. Sparf and Hansen v. United States, 156 U.S. 51 (1895) And under Thomas, federal judges in New York’s jurisdiction can remove jurors suspected of nullifying during deliberations, going beyond mere discouragement.2Justia Law. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997)
Federal judges can also give anti-nullification instructions proactively, warning jurors before deliberations that they are not free to ignore the law. Appellate courts have been reluctant to reverse convictions even where trial judges gave coercive instructions. For a defendant facing federal charges in the Southern or Eastern District of New York, the practical odds of a nullification verdict are lower than in state court, where judges have fewer tools to intervene once deliberations begin.
Talking About Nullification Outside the Courtroom
Discussing jury nullification in general terms is protected speech. Writing about it, publishing material about it, and debating the concept publicly fall within First Amendment protections. The analysis gets harder near a courthouse.
The principle that matters is the difference between general advocacy and conduct aimed at a specific case. Public discussion of nullification as a concept is lawful. Targeting the jurors in an active case with information designed to influence their verdict can be characterized as jury tampering. New York has not produced a defining high-profile case on courthouse-sidewalk pamphleteering, but the distinction between speech directed at the public and speech aimed at a particular proceeding is the line to watch.