Mentioning jury nullification carries real consequences, and what happens if you mention jury nullification depends entirely on who you are and where you say it. A prospective juror who raises it during selection gets struck from the panel. A seated juror who brings it up in deliberations can be removed and, in rare cases, held in contempt. A defense attorney who argues for it risks sanctions, bar discipline, and a mistrial that burns their client’s case. Someone handing out pamphlets on a public sidewalk is on firmer ground, though prosecutors have tried to charge that too.
Underneath all of it is a rule the Supreme Court set in Sparf v. United States: in federal criminal trials, the jury’s job is to “receive the law from the court, and to apply it as given by the court.”1Justia U.S. Supreme Court Center. Sparf and Hansen v. United States, 156 U.S. 51 (1895) The D.C. Circuit later acknowledged in United States v. Dougherty that jurors have the raw power to nullify, but held that nothing in the trial should encourage it.2Justia. United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) Every rule below flows from that posture.
If You Mention It During Jury Selection
Voir dire is where attorneys and the judge probe prospective jurors for anything that would prevent them from applying the law. A standard question asks whether you can follow the judge’s instructions on the law even if you disagree with it. Say you’d vote your conscience instead, or raise nullification on your own, and you’ll be struck for cause. There is no cap on for-cause dismissals, so this is a certainty rather than a risk.
The more serious scenario is lying to get on the jury. If you know about nullification and conceal your views when asked, you’ve made a false statement under oath. Courts treat that as potential perjury or contempt, and if the dishonesty surfaces during or after trial, the losing side has strong grounds for a new trial regardless of whether your intent affected the verdict.
If You Mention It as a Seated Juror
Once deliberations begin, raising nullification exposes you to removal. If another juror reports it, the judge will question you to determine whether you’re refusing to apply the law as instructed. If the answer is yes, you can be excused “for good cause” under Federal Rule of Criminal Procedure 23(b), and the remaining jurors can continue to a verdict without you.3Office of the Law Revision Counsel. 18 USC App, Federal Rules of Criminal Procedure Rule 23
There is a safeguard worth knowing about. In United States v. Thomas, the Second Circuit held that a juror may be removed for refusing to follow the law “only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution’s case.”4Justia. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) A holdout who finds the evidence insufficient looks a lot like a nullifier from the outside, and the court reversed a trial judge’s removal in that very case because the record didn’t clearly distinguish between them. In practice, a juror who says “I’m not convinced” fares much better than one who says “I don’t care what the law says.”
Contempt is the outer edge. Federal law gives courts broad power to punish disobedience “by fine or imprisonment, or both, at its discretion.”5GovInfo. TITLE 18 – CRIMES AND CRIMINAL PROCEDURE 401 – Power of Court Judges rarely use it against jurors because removal solves the problem without creating appellate complications.
If a Defense Attorney Mentions It
A lawyer who argues for nullification in front of the jury draws an immediate warning from the bench. Persist, and the judge can hold them in contempt on the spot. Beyond the courtroom, the attorney risks a bar complaint, because asking jurors to disregard the law conflicts with the duty not to misstate the law to a tribunal, and bar discipline can reach disbarment.
The client pays too. If the judge concludes the argument may have tainted the panel, the result is a mistrial, which wipes out the trial and lets the prosecution start over with a new jury. That’s why experienced defense attorneys avoid the word “nullification” even when their strategy depends on jury sympathy, choosing instead to build the sympathy through facts the jury can lawfully consider.
If You Mention It Outside the Courthouse
Speech outside a courtroom is treated very differently, but two federal statutes still loom. Under 18 U.S.C. § 1504, it’s a crime to try to influence a juror’s decision through a written communication “in relation to” an issue pending before that juror, with up to six months in prison.6Office of the Law Revision Counsel. 18 U.S. Code 1504 – Influencing Juror by Writing Section 1503 is broader, reaching anyone who “corruptly… endeavors to influence, intimidate, or impede” a juror, with penalties up to ten years.7Office of the Law Revision Counsel. 18 U.S. Code 1503 – Influencing or Injuring Officer or Juror Generally
Prosecutors have reached for both against pamphleteers. A retired professor indicted under § 1504 for handing out nullification brochures outside a federal courthouse in Manhattan had the indictment dismissed; a federal judge read the statute to cover only communications aimed at a specific juror in a specific pending case, not general advocacy. The Colorado Supreme Court likewise affirmed the dismissal of state jury tampering charges against two activists who handed nullification pamphlets to people entering a Denver courthouse for jury duty.8Justia. Colorado v. Iannicelli, 2019 CO 80
The courts have drawn the line between education and interference. A blog post, a social media thread, or a leaflet on nullification as a concept is protected. Pressing a flyer into the hand of someone you know is about to decide a specific case, urging them to acquit that defendant, moves toward tampering. Prosecutors have argued the line sits further toward the speaker; courts have mostly rejected that when the speech isn’t tied to a particular case.
Can a Defendant Ask the Judge to Mention It?
No. Defendants have asked for nullification instructions for well over a century, and courts have refused. Sparf established that judges have no obligation to tell jurors they can ignore the law, and Dougherty added that they shouldn’t.2Justia. United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) No federal court recognizes a right to such an instruction. New Hampshire passed a 2012 statute that appeared to let defense attorneys inform jurors about nullification, but the state supreme court effectively gutted it soon after, leaving the law intact on paper and inoperative in practice.
What a Mention Does to the Case
When nullification talk reaches the jury and the judge concludes a lawful verdict is no longer possible, the result is a mistrial. The prosecution can generally retry the case with a new jury; the Double Jeopardy Clause does not bar retrial after a mistrial.9Justia. U.S. Constitution Annotated – Fifth Amendment – Reprosecution Following Mistrial So raising nullification openly tends to produce a do-over, not a win.
If a juror quietly nullifies and nobody finds out, the acquittal stands. The prosecution cannot appeal a not-guilty verdict. That is why nullification is often called a power rather than a right: the system cannot undo it after the fact, but it works hard to prevent it beforehand, and the surest way to lose the chance is to announce the intention out loud.