If there is no statute criminalizing it, no case law making it fit into another criminal category like contempt, and no punishment for it: then it is not a crime. Therefore it is a perfectly legal option available to the jury, period.

There is a tendency in this country to pretend things are illegal when they’re not. (You know, like carrying cash.) There is no excuse for doing so, and if the feared consequences of any act are so great that you must lie to people and tell them it is illegal, then you should go ahead and try to pass a law to reflect that.

I understand that judges (and prosecutors, obviously) have an interest in refraining from putting up “happy nullification” banners in the jury room. But, we all have heard the “there is no such thing as legal jury nullfication” instruction story too… a very carefully crafted lie more befitting a criminal than a judge.

I will continue to tell all my friends who get summonses about their power to nullify, and encourage them to be unintimidated by instructions.

The notion that an animal that cannot be called as witness has the “power” to authorize a search or a DA may grant an unwanted “privilege” as a means to force testimony are but two easy examples of where the government has lost the support of the community.

If you are the DA and all your evidence is circumstantial or the word “conspiracy” appears in your charge you don’t want me on the jury.

You also have a good point that it makes jurors something like legislators. But keep in mind that the legislature writes laws that apply to all people at all times. They cannot be expected to know every instance when it might be unfair to enforce an otherwise good law. The jury serves as a safety valve, keeping that law from being enforced when such enforcement would be unfair and unjust.

There is a saying that hard cases make bad law. It is a warning to judges and legislators to be careful when they create rules that we all must later live by. The usefulness of letting a jury sort out those hard cases is that they can do justice in one case without creating a bad legal precedent.

I don’t advocate taking action against a jury or jurors that reach a verdict contrary to the law, but instructing them that it is OK is like telling a jury to become the legislature. If courts shouldn’t do that, certainly juries shouldn’t.