Jury Nullification – The power to do what is right. Part 3

Jefferson City Criminal lawyerWe have seen that juries can render a “not guilty” verdict even where the evidence clearly shows the defendant did what he is accused of doing. Missouri cases have seldom spoken of this issue. Thirty years ago, the Missouri Supreme Court acknowledged jury nullification: “While courts recognize that jury nullification may occur from time to time, the practice is not encouraged.” State v. Hunter (Mo. banc 1979).

This, however, misses the point. No one suggests that juries should be encouraged to render verdicts inconsistent with the law. The question is whether they should be informed of this power and instructed in its use. Such independent juries have been the leading edge of political change.

Before the American civil war, it was the refusal of northern juries to enforce the Fugitive Slave Act of 1850 that moved the nation toward war and the abolition of slavery. Later, refusal of juries to enforce Prohibition led to the 21st Amendment. Whenever the government gets out of step with the people, the citizens have the power to fight back from the safety of the jury box.

Still, the courts are uncomfortable with the idea. Some will acknowledge that acquittal by jury nullification can be beneficial in certain situations, but they pretend to be terrified by the prospect of the jury going the other way. What if the jury doesn’t like the defendant and convicts him when he didn’t actually break the law? There are a couple reasons why this would not be a problem in actual practice:

  1. The courts would only instruct the jury about their right to judge the law (as well as facts) if the defendant requested that instruction. That way it would not be used by the state to falsely convict a defendant; and
  2. Unlike an acquittal (which can neither be reversed, nor the case re-tried) an illegal conviction could be set aside by the trial judge, and if not by the judge, then by the court of appeals.

With such protections in place, jury nullification is not the double-edged sword as some would suggest. It could only be used to acquit when a jury believed that the law–as given by the court–would cause an unjust, unfair result.

Another problem with the current system is that it sometimes creates an intolerable dilemma for jurors who must decide between following orders and following their conscience. Some argue that a juror—in taking his oath—commits perjury when he later delivers a “not guilty” verdict in spite of proof beyond a reasonable doubt. This is untrue for two reasons:

  • First of all, the jurors’ oath says nothing about following the court’s instructions. The oath states that the juror will “truly try the issues in this case and render a true verdict according to the law and the evidence.” The juror would probably believe this to be the equivalent of promising: “I’ll do the best I can.”
  • Second, even if the oath clearly demanded that the jurors follow the court’s instructions to the letter, any reasonable juror would assume that the law (as given by the court) will be fair, and would be applied in a fair way.

No juror imagines that his government would put him in a position where his oath cannot be fulfilled in good conscience. If the juror intended to follow the law at the time he took his oath—and later discovered that he could not—there can be no perjury.

The idea of an independent jury goes back before the Magna Carta. When government crosses the line, it is a great thing that twelve fellow citizens can step in and tell the state it has gone too far. If it happens just once, it saves just one person. If it happens over and over, even bigger things happen.

For more information on the importance of informed, independent juries:

Verdicts Of Conscience: Nullification And The Modern Jury Trial

Fully Informed Jury Association

7 thoughts on “Jury Nullification – The power to do what is right. Part 3

  1. Casey O'Brien says:

    And the court will supply the law. Therefore jury nullification in fact is an illegal act unless the court provides incorrect instructions.

    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.

  2. I understand what you are saying, but you have to admit that it is a strange illegality that can neither be stopped, nor punished.

    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.

  3. Gary French says:

    A juror must have an avenue to demonstrate their view of the law. It is well understood by the masses” that justice is incidental to law and order.

    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.

  4. jzapert says:

    Casey, I didn’t actually notice that oath ended with “and the court will supply the law.” And good luck trying to determine what it means to “truly try” or whether or not a verdict is “true.”

    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.

  5. […] Jury Nullification – The power to do what is right: Part I, Part II, Part III  […]

  6. Chris Hardy says:

    Mr. England I do believe you know what your talking about. The law can be unjust especially for defendants with a criminal background. People only focus on the charge when what really matters is the circumstances of that particular charge. Mr. England just by reading your posts I know your a man with a good heart. I can keep going on about this we whole subject. H but I got to ho

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