Jury Nullification

I saw this post on Tumblr today about Jury Nullification

An image promoting Jury Nullification
An image promoting Jury Nullification

The image had had some text added by a tumblr user as a comment

This is something that more people should be aware of, if only because (in many states, at least) defense attorneys are actually prohibited from mentioning it to jurors. The law allows a jury to return a “not guilty” verdict contrary to the facts of the case, but not for the defense to inform them of that power or to argue for its application in the current trial.

And I decided it would be a good idea to cross-post my response here, as legal issues are something I’m passionate about myself.

My Response

Jury Nullification is….. yeah.
I mean, I know it’s a thing, and it does, on the face of it, seem like an important thing. But the entire principle of the Jury is that they are Finders of Fact. That is, their entire role is to determine only whether a law has been broken. Don’t misunderstand me – it’s a vital and very important role – 12(ish) random men and women drawn from amongst the general population. To judge whether a particular fact has occurred.
The issue with Jury Nullification (for me) is that, although it sounds like it’s an amazing thing, and it brings to mind all kinds of nice images of “giving it to the man”, it’s not that simple.
There are the scenarios presented where for instance 12 jurors return not guilty for someone who is in court for light cannabis use – to pick a US example. Or copyright infringement.
But this ignores other potential situations. 12 is a tiny number. It could be easy to get 12 people who think “an eye for an eye” is perfectly fine, and so will vote Not Guilty for some crime done in retribution. Or 12 people who are racist and thus vote not guilty simply because the victim was black.
And of course, there’s the other side – where the Jury vote Guilty even when the evidence is slip-shoddy, because the defendant was black, or (and this is a serious actual problem) they believe anyone who the police have arrested must be guilty.
The reason why Jury Nullification is awkward is because these are 12 individual people, answerable to no-one (In the UK speaking about Jury Deliberations can lead to a charge of Contempt of Court for the Juror), whilst the law-makers who actually make the law are elected by the entire population, answerable to them, and thus (in theory) create laws based on the overall will of the people. Therefore Jury Nullification is (in theory) the minority overriding the majority. (Which, while not always bad, is definitely a warning sign in any justice system claiming to be by the people)
Jury Nullification isn’t as awesome as it’s made out to be – it is very problematic due to the reasons outlined above. It’s not even really an actual thing. There’s no law that states “Juries may return a verdict of Not Guilty if their conscience disagrees with the law” – technically Juries don’t even create the punishment; sentencing is purely in the judges domain. Instead Jury Nullification is an unpreventable thing arising from the fact that Jury Verdicts are meant to be simple findings of fact, with no moral judgements made by the Jury. It is an innate part of a justice system where the defendants peers are responsible for deciding whether a law has been broken.
So it exists, but it is also a dangerous thing, as it undermines the entire principle of Juries being simple Finders of Fact – hence why in some jurisdictions it is not allowed to be mentioned to jurors.
As something I’ll add just to this blog entry, I’d say that Jury Nullification is a simple principle that can lead to a whole mess of chaos – especially for the uncertainty it can create should either side appeal the verdict. In certain, limited cases it can prove useful, and is potentially a last line of defence against unjust laws. The problem is that different people have vastly different opinions about whether a law is just or unjust – and this is why it is such a dangerous thing to publicise directly to jurors.

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