Jury nullification is a process by which a criminal jury determines that a law is unconscienable, either morally or as it applies to a specific case, and therefore is to be ignored despite the guilt of the defendant. The US Supreme Court has determined that juries do have the power to nullify, but they also determined that juries need not be informed of this power. As a result, very few jurors have any idea that they can ignore the law, if they feel the case before them warrants that action.
Historical examples of jury nullification are abundant. Early in our nation’s history, jurors were regularly informed of this power. Positive examples of jury nullification include cases involving the Fugitive Slave laws, and of course, Prohibition. Negative examples include the refusal of some juries in the south to find white supremacists guilty of murdering African-Americans or civil rights workers, despite substantial evidence of guilt.
Judges worry that informing juries of this power will result in juror anarchy, with jurors deciding cases based on their sympathies rather than on the facts of the case; some argue that this is what happened in the OJ Simpson trial of the early 90s. Another judicial concern is that jury nullification will result in an increase in the number of hung juries, or that jurors will be overwhelmed if they are expected to interpret not only the facts, but the fairness of the law as well. An ongoing concern is that, once found not guilty by a jury, a defendant is protected from ever being tried again on that charge under the Double Jeopardy Clause; so if jurors nullify, guilty defendants will go free. The current conventional wisdom is therefore to not only not inform jurors of their nullification powers, but to specifically instruct jurors that they are to determine the facts, not the law, and that they must follow the law exactly as it is presented to them by the court.
Jurors, of course, take an oath to make a determination based on the evidence presented. Jury nullification is therefore not properly used to send a predetermined message, or to forward one’s personal views; but rather is properly used on the basis of a consensus of juror conscience after hearing all the evidence and being instructed on the pertinent law.
The criminal justice system depends upon juries to make the most serious life-altering decisions on a daily basis, and the majority of Americans believe jurors – not judges, not lawyers – are the most important facet of the American justice system. So shouldn’t jurors be informed of the full extent of their powers?
Negative cases notwithstanding, I believe all juries should be made aware, as part of the formal jury instruction process, of their right to nullify. Jurors are generally fair-minded law-abiding people who take their responsibility very seriously, and try very hard to do what’s right; and, if they think someone is being railroaded by an unfair law, I believe they will nullify if they realize they can do so. I also believe that juries would not nullify if the specific case doesn’t call for that action; in other words, I honestly don’t think the vast majority of juries would nullify just because they can, but would do so exclusively when they believe it to be the only appropriate response under the circumstances. I really don’t think we have to worry too much about the hate groups taking over the jury box in the 21st century, given modern methods of jury selection.
There are any number of laws which should be nullified when appropriate. For example, the three-strikes law doesn’t always seem fair. If someone has molested children and been convicted of those felonies twice before, gotten out of prison and their third strike is for molesting yet another child, then yes, send them to prison for life with no possibility of parole, since there is no doubt whatsoever that their freedom poses a serious danger to the most vulnerable members of our society. However, if someone’s first and second strikes were non-violent offenses, and their third strike involves, for example, stealing food, formula, diapers, etc for their children, a fully informed jury would nullify rather than finding them guilty, when that verdict would automatically send them to prison for the rest of their life.
Jury nullification would also act as a deterrent for overzealous police and prosecutors who file charges which are greatly inflated considering the crime actually committed. In fact, jury nullification probably would result in a number of common charges becoming completely impotent.
Of course, that’s the unspoken reason why no one is in a hurry to inform jurors of their nullification rights. In many jurisdictions, misdemeanor charges such as simple possession of marijuana or public intoxication may be regularly ignored by juries, if the jury is aware that they can do that. Resisting arrest without violence is another charge the juries would nullify with regularity, since the average person recognizes that’s usually a bogus charge anyway; even in cases where the resistance is allegedly with violence, it’s many times just a way for law enforcement to explain acts of brutality on their own part. The average juror is far from stupid, is possessed of common sense, and doesn’t automatically trust the police; as a result, they understand these concepts and are fully capable of considering whether the law appears to be fair as it is being applied in a specific case which has been presented to them. That’s why jury nullification is considered a dangerous power, and one which should not be discussed openly when it most matters: in court.
The courts don’t want juries to start nullifying in the type of cases I just mentioned, because they make a great deal of their operating revenue from the fines imposed on such charges, and some of those charges (like resisting arrest) are usually just used as a prosecution tool in plea bargains. The greatly increased number of trials demanded, in cases likely to result in nullification, would render the courts unable to hear all the cases presented, thus requiring that additional judges be seated (and possibly more courtrooms built) at a huge additional cost. Financially, it would be a nightmare for the court system, should juries decide to nullify certain types of common criminal cases across the board.
Then again, maybe the criminal justice system would take a hint, and realize that the average person doesn’t think possession of a marijuana roach should be a crime at all, nor should it be a crime to carry pills outside the prescription bottle, as long as the person in possession of those pills can show the pills were actually prescribed for them (not unlike how one can in most jurisdictions get ticketed for lacking proof of auto insurance, but they throw out the ticket if you show up at the courthouse within a certain number of days with proof that you were indeed insured).
Those are just a few examples among many, where jury nullification could send a serious message from society to lawmakers and law enforcement, especially in the so-called “War On Drugs”: you can make the laws, and you can enforce them, but we as a society don’t consider them crimes so we will not convict anyone of breaking them. Jury nullification is thus an extremely powerful tool for the populace, to maintain a balance between individual rights and governmental powers. Of course the powers-that-be, who assume the rest of us are not intelligent or educated enough to understand the law – and who believe that just because they are power-hungry, the average juror must also be that way – are in no hurry to inform juries that they wield that much power.
Please bear in mind, I support the concept of juries being informed in other areas as well, so they can make decisions with full and complete knowledge of the potential outcome of their decisions; and that knife cuts both ways. For example, juries should also be informed of the realities in sentencing. Jurors have a right to know if, for example, a 10-year sentence would in actuality only result in about 6 years’ incarceration; and if a life sentence doesn’t really mean that the person will be in prison for life. That kind of information would, of course, result in much more severe punishment for many offenders, in jurisdictions where juries make sentencing decisions.
Trusting jurors to make the right decision in individual cases forms the very basis of our justice system. We should therefore never restrict any jury’s right to be informed of the full extent of their powers, regardless of whether that makes judges or attorneys uncomfortable. To the judges and lawyers, what they do in a courtroom is a job. To a juror, it’s far more, since they are making a decision which will impact another person’s life, possibly forever. To not provide jurors with information regarding the full extent of their powers is therefore, quite frankly, unconscienable in and of itself.