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Jury Nullification
Posted by: Dale Franks on Wednesday, May 16, 2007

I moved this out of my jury service post immediately below, because i wanted to address it separately, rather than have it lost as a digression of the main post, and give you a chance to comment on it separately.

The lawyers really don't like jury nullification. Everybody—the judge, prosecutor, and defense—kept hammering home the point that we have to apply the law as the judge explains it. The idea that you could have a runaway jury seems to really get right up their nose.

Now, let's not even talk about the philosophical issues surrounding nullification yet. Let's just talk practicalities.

All a jury does is say "guilty", or "not guilty" at the end of the day. Really, a juror doesn't have to explain why he voted the way he did. But that simple statement hides an enormous power, because once a jury says "not guilty" it's over. The defendant is free.

That means that the very structure of the jury system makes nullification possible, and, as a practical matter, unprovable, unless the jury later states that they were intentionally shooting for it.

The lawyers, of course, all know this, which is why they take such pains to stress that we must apply the law as the judge explains it. But, in truth, jurors don't have to do anything, other than render that verdict. And once they do, it's pretty much immutable. A judge can, in some special cases, render a directed verdict of "not guilty". But a directed verdict of "guilty"? Not bloody likely.

So as a practical matter, however much the lawyers want to disguise it, juries can blow off the law and set a defendant free, and there's not much anybody can do about it.

From a philosophical perspective, though, I can see why lawyers are touchy about the idea of jury nullification, and why the rest of us should be, too.

I take it as a given that jury nullification is a perfectly legitimate remedy to unjust laws. Further, i take it as a given that it should be.

But, I also take it as a given that, in the normal course of events, it shouldn't be.

The law is a fragile edifice, really. If juries consistently nullify the law, then the law ceases to become impartial, respect for the law is diminished. Trials become little more than a game of chance, where the personal feeling of jurors, rather than some impartial guideline determines legal guilt or innocence.

I'm pretty sure I wouldn't want to live in a society where there are no rules that can be relied on to punish criminal behavior.

Yet, at the same time, respect for the law can be diminished if the laws are unjust, or unnecessarily punitive. In those cases, jury nullification is a valid method for repudiating those laws.

But that, of course, leaves us with the very difficult question of where to draw that line. And how do we have a rational system of laws if every juror draws that line differently. What if a juror would refuse to convict if the death penalty was a possibility? What if a juror thinks even life imprisonment is unjust? What if a juror thinks all drug laws are unjust, and would refuse to convict anyone of any non-violent drug offense?

Jury nullification can be a useful hammer, but it can also be an awfully big and dangerous hammer when wielded in an inappropriate context, or when used injudiciously.

It's a tool that needs to be in the toolbox, but one that should probably hardly ever be used.

Of course, just hinting that you might believe that last statement is enough to get you booted of off practically any jury in the land.
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Previous Comments to this Post 

Can’t judges set aside verdicts though? Or only guilty convictions?
Written By: jpm100
URL: http://
The counterweight of a "runaway jury" being the appellate courts?
Written By: Ike
URL: http://
A couple of good posts Dale. I have enjoyed reading them. Jury duty is one of those things I have never been able to really get a handle on. I’m curious as to following -

The lawyers, of course, all know this, which is why they take such pains to stress that we must apply the law as the judge explains it. But, in truth, jurors don’t have to do anything, other than render that verdict.
as it would apply to how it works in GA. Your favorite (ha!) talk show host in these parts (Boortz) has often spoken about a jurors duty in GA...
If you want a sure-fire way to avoid jury service in Georgia, all you have to do is let the judge know that you believe that, as a juror, you have the right to decide the law as well as the facts of the case. The judge will tell you it ain’t so. Then you waive a copy of the Georgia Constitution in the judge’s face saying that it IS so.
To which he usually drops in this quote from John Adams -

It would be an absurdity for jurors to be required to accept the judge’s view of the law, against their own opinion, judgment, and conscience.
How does that jibe with your experience and thoughts?
Written By: meagain
URL: http://
The counterweight of a "runaway jury" being the appellate courts?
Not as currently defined. If a jury acquits a defendant through nullification, there’s no appeal.
Written By: steverino
I like the quote by the attorney Mark Schopper who represented contractor detainees in Iraq, he wrote: "In a courtroom, the ‘truth’ of a matter is what the jury decides based on the evidence presented, not on what actually happened, which is beyond reach."
Written By: Kelly Winters
URL: http://

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