CURRENT CONSTITUTIONAL AUTHORITY FOR JURY NULLIFICATION
The Constitutions of Maryland (Art. XXIII, entire), Indiana (Art. I, sec. 19), Oregon
(Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A), currently have
provisions guaranteeing the right of jurors to "judge the law"; that is, to nullify the
For example, the Georgia Constitution says: "In criminal cases, the defendant shall
have a public and speedy trial...and the jury shall be the judges of the law and the
Although these provisions have not been strong enough to withstand decades of
hostile judicial interpretation, and have relatively little current impact, they do
remain "on the books". Attorneys reportedly are able to argue the law in Indiana.
Twenty-three states currently include jury nullification provisions in their
Constitutions under their sections on freedom of speech, specifically with respect
to libel and sedition cases:
Alabama (Art.I, Sec. 12); Colorado (Art.II, sec. 10); Connecticut (Art. First, sec. 7);
Delaware (Art. I, sec. 5); Georgia (Art. I, sec. II, Para. 1); Kentucky (Bill of Rights, sec.
9); Louisiana (Art. XIV, sec. 9); Maine (Art. I, sec. 4); Mississippi (Art. 3, sec. 13);
Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec. 6); New York
(Art. I, sec. 8); North Dakota (Art. I, sec. 4); Oregon (Art. I, sec. 16); Pennsylvania (Art.
I, sec. 7); South Carolina (Art. II, sec. 21); South Dakota (Art. VI, sec. 5); Tennessee
(Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec. 15); Wisconsin (Art. I, sec. 3);
Wyoming (Art. I, sec. 20).
Of these, Texas, Delaware, Kentucky, North Dakota, and Tennessee say that the
jury is the judge of the law in libel and sedition cases, "as in all other cases."
Source: Alan W. Scheflin, "Jury Nullification: the Right to Say No", Southern California Law Review, 45,