At the beginning of a criminal trial, jurors are typically asked to swear that they “will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help [me] God.”
Aside from being barely intelligible to most jurors, there’s no reason why a juror might not acquit based solely on “the evidence” if they believe the accused harmed no one or that a conviction would be unjust. As for what it means to make “a true deliverance,” nobody alive today knows for sure what that means.
It is up to the defense to make a jury nullification argument to the jury. Or it’s up to the defense to ask for a jury nullification instruction from the judge. It’s a tactical decision, just like whether or not the defendant will testify or not in court. It’s totally up to the defense to exercise the option or not.”
While the law might sometimes be unfair, jury nullification rests on the assumption that 12 randomly chosen individuals are entitled to override the democratically expressed will of the citizenry. It’s true that there is considerable history of juries disregarding their instructions on principle. Before the Civil War, Northern juries sometimes refused to enforce the Fugitive Slave Act, preferring to forgive defendants who helped escaped slaves.
But what would you do if you were a Northern juror in 1855 deciding the guilt or innocence of an abolitionist accused of violating the Fugitive Slave Act? More to the point, assume that the prosecution proved its case beyond a reasonable doubt.(Heck, assume that the defendant confessed in court to helping Southern slaves escape to Canada!)
The answer would be to convict the defendant, because “jurors who disagree with legislated prohibitions are morally entitled to work to change them. But they have no business putting their preferences above what democratic institutions have decided.” In other words, it’s more ethical to set aside your conscience to comply with an evil law (and work to change it later) than it is to nullify such a law if you have the power to do so. That’s simply ludicrous. Also, an ethical citizen can vote their conscience as a juror and work to change bad laws too.
Jury nullification does not repeal bad laws, rather it allows juries to show mercy for defendants if they believe the law is wrong or is simply being misapplied.
As the Fugitive Slave Act, the Volstead Act, the USA PATRIOT Act, and every other evil, absurd, or hysterical legislation on down to our ongoing drug laws has proven time and again — legislators are hardly infallible. Jury nullification is perhaps the most important vote that citizens can use to alert law makers when their work is flawed. It does not “override” democracy. It is part of our democracy.
Are juries perfect? Of course not. But neither are the police officers who have discretion to make arrests. And neither are the prosecutors who have more power than judges, because they “have discretion over whether to charge a suspect, and for what offense.” Moreover, prosecutors “tend to throw the book at defendants,--a "plea bargain" to compel them to plead guilty in return for less harsh sentences.” Our ousted Judge committed no crime except to refuse to go along with wrongful plea bargaining deals. Procicutors do not take kindly to judges who don't go along with their plea deals. It is the law, they can legally do that, but it is wrong and a fair judge will have nothing to do with plea deals if he is an honest man, but he may lose his job and his reputation.
To the more than 3,200 U.S. prisoners serving life without parole for nonviolent offenses, the problem is certainly not that too many jurors are using their discretion to nullify bad laws and malicious prosecutions. Far from it. Fortunately, they have nothing to fear by informing jurors of their right, power, and duty to nullify bad laws.
Tags: jury duty, jury nullification