Jury trial nullification

This is a question I am often asked by non lawyer friends called upon to serve as jurors. What if, after all the evidence is presented, you believe beyond a reasonable doubt that the defendant committed the crime as charged, but you still don’t want to convict? Surprisingly, this happens more often than you think.

Let’s examine the case of a hungry homeless man stealing a loaf of bread. After trial, it is clear that the guy did it. However, during the course of trial, you learn that the guy hadn’t eaten anything for days, that he suffers from a mental illness that deprives him of a job, and has no familial support of any kind. Clearly, there are some fairly serious sympathetic facts that do not technically relieve him of guilt. However, it puts you in the difficult position of heaping further misfortune on him if you were to follow the law.

At the outset, the judge and prosecutor will spend lots of time ensuring that you will follow the law, no matter what. You will see people being excused from the jury for equivocating on this issue. For example, lots of people believe drug offenses should not be crimes and will say so in court. They will be excused. Once you are empaneled on the jury, the judge will strongly emphasize many times that you must follow the letter of the law regardless of your personal feelings about the law you are supposed to uphold. All of that is smoke and mirrors.

The power of a jury to nullify law is based on a principle has been well-established in U.S. law. As early as the 1800’s, jurors refused to convict persons found in violation law prohibiting aid to fugitive slaves. During alcohol prohibition, as many as 60% of cases regarding alcohol possession and consumption were nullified at trial. Recently, there has been a similar increase in nullification regarding drug prohibition, particularly in the case of marijuana possession and cultivation.

Jury nullifications’ roots lay in the common law power of the people to act as the final say in the propriety of any given law. In the example above regarding the hungry man stealing food, one may condemn stealing as a general principle, but decline to convict as applied under specific circumstances. The reason for this is that there can be no panacea law that can account for every factual circumstance. Therefore, the power of jury nullification acts as the final “people’s pardon” in cases where it is deserved.

And, we know such power exists because there are no legal consequences against a juror who simply refuses to convict. Moreover, the defendant cannot be tried a second time if the jury unanimously votes to refuse to convict based on nullification. Therefore, a rule without consequence is no rule at all.

If you find yourself a juror (especially in one of my cases!) I strongly encourage you to include fairness in your ultimate decision in addition to the mandates of the law. And let not guilty be a serious option regardless of the technical legal analysis.