Tuesday, April 1, 2008

Jury Nullification: The Law's Dirty Little Secret

First, a few articles on the subject. And what happened in practice to this guy. I'm sure one could find many more articles with a simple google search.

In a nutshell, Jury Nullification is the inherent power of any jury to decide a defendant is not guilty even if they conclude that factually, defendant broke the law charged (factually beyond a reasonable doubt). Reasons for this could be mercy, or a disagreement with the law, or a disagreement with the law's enforcement in that particular case. Though motivation really is irrelevant. The fact is, once the jury votes "not guilty," regardless of the reason, that's it - the defendant goes free and cannot be retried because of double jeopardy.

But here's the catch - you can't admit in advance that is what you intend to do. And sometimes they will try and root out a juror who might do this, either through voire dire or, as was indicated in one of the articles I linked, if a jury member brings it to the attention of the judge and then the judge kicks you out.

So it is a power that everyone has as a juror that almost no one is aware of. It used to be that juries could be told about this, but no more. I think that is wrong. I think the ultimate check on government power, at least when it comes to criminal laws, is juries. But they can't be if they are shackled by a judge that won't let a juror vote his or her conscience on the actual legitimacy of the law being enforced.

One way around this would be to publicize, outside of courts, jury nullification, so juries go in knowing about it. Of course, if you are on a jury, you still can't tell other jurors about it or you risk getting pulled from the jury. Which is too bad. Because some laws are so stupid they should not be enforced, ever. It would be a wonderful check on the government and on out of control prosecutors (who have WAY too much power). So let's use it. Tell everyone you know about it. And tell them to keep mum about it when actually in court. It probably won't have a huge effect, but it might have an effect for individuals here and there who would otherwise be crushed under the weight of our prosecutorial-happy, everything-is-illegal legal system.


The Barefoot Bum said...

As best I can remember, the whole point of trial by jury in England in the first place was to provide for nullification for unjust laws.

DBB said...

Yeah, precisely. So the King could make whatever stupid laws he wanted to, but because juries existed, he'd never actually be able to implement them - any random 12 people off the street would be able to veto them, in essence.