Jury Nullification – The power to do what is right. Part 1

Jefferson City criminal defense lawyerBefore every Missouri criminal trial begins, the judge asks the jury to stand and raise their right hand as the jurors take this oath:

Do you solemnly swear or affirm that you will well and truly try the issues in this case and render a true verdict according to the law and the evidence, so help you God?”

After all the evidence in the case is heard, the court instructs the jury as to the law, telling them that they must decide the facts in the case. Something like this:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about March 18, 2008, on US Hwy 54, in the County of Cole, State of Missouri, the defendant operated a motor vehicle, and

Second, that he did so while in an intoxicated condition,

then you will find the defendant guilty of driving while intoxicated.

It looks very mechanical. Very simply, if the defendant was

1. intoxicated; and

2. driving; then he is automatically guilty.

But that is not how it works.

In fact, the jury has unquestioned power to find the defendant “not guilty.” Without having to justify why.

Now most of the time, jurors do follow the court’s instructions and render a verdict based on whether the state has proved the facts in the case beyond a reasonable doubt. But there are times when the jury clearly DOES NOT CARE that the state has proven it’s case.

If they think the law is unjust in a particular case, they exercise their power and vote “not guilty” even though the defendant undoubtedly did what he was accused of doing.

Twice-when I was a prosecutor–I learned this lesson firsthand.

The first time was a felony DWI trial. The defendant had been drunk (very drunk) driving and his lawyer was the only person who could dispute it with a straight face. But the jury came back with a “not guilty” verdict. Several jurors went out of their way after the trial to find me and tell me not to feel bad, that I did a good job, but there was no way they were going to find that nice boy guilty of a felony.

Another fellow was acquitted after I proved his guilt-beyond all possible doubt-that he illegally possessed a concealed weapon (a knife he kept under the driver’s seat of his car). I spoke with some jurors afterward and they just disagreed with the law. There was no way they were going to convict a man for doing what everyone has a right to do; i.e. keep a weapon in his car for self-defense.

The fascinating thing about this is that the jury got away with ignoring the court’s instructions. No one could stop them. No one could reverse their decision. No one could punish them afterward.

This power of “jury nullification” of the law is intriguing. I’ll get into it more in later posts.

–> Read Part 2

It’s not so great to be the State . . . except when it is.

Let’s even up the books and note some advantages that the defendant has in a criminal case.

In the last post I mentioned that the accused gets to “hide” evidence in his possession that would tend show him to be guilty. And he CAN appeal a loss, because, while double jeopardy prevents the state from re-trying him, he can ask for a new trial. If he wins the appeal he may get one.

Some other differences relating to the defendant

  • He doesn’t have to testify; and no one can even mention to a jury that he hasn’t testified. A smart defense attorney might even leave the impression that the “mean old state” didn’t even let allow him to tell his story.
  • The whole burden is on the state to prove the case. If the defendant can raise a single reasonable doubt about ONE element of the state’s case, the jury must acquit the defendant.
  • The defendant gets to choose between having his case decided by a judge or a jury. That is important in most cases.
  • The defendant gets to choose (in many cases) between having his punishment decided by a judge or a jury.
  • The defendant cannot be convicted unless all 12 jurors agree. While the principle that a verdict must be unanimous applies to both “guilty” and “not guilty” verdicts, this rule is really in favor of the defendant.

My experience is that unless a jury can resolve its differences fairly early in the deliberations, the jurors holding out for a “not guilty” verdict tend to be more tenacious, while the “guilty” votes seem a bit more likely to yield, as in the movie 12 Angry Men.

As I’ve mentioned in another post, even the prosecutor and the defendant’s attorney are treated differently if they make an error in the trial. The prosecutor’s mistake is called “misconduct,” while a bumbling defense attorney is called “ineffective.”

The question of fairness and balance really comes down to the question of whether our courts are successful in convicting the guilty and releasing the innocent. That is an issue we will never resolve.