Close X

(760) 228-0027

What is the Blog All About

Jury Nullification; It is Not, and It is So Much More

One of the problems with discussing, thinking about, avoiding, educating about, being concerned about “jury nullification” is that the term itself is misleading. It implies that there would legitimately be a certain outcome but for the jury aggressively vetoing the matter. But that is not consistent with the Framers' notions of, and intents about, the citizen jury. The jury doesn't nullify something the government has a right to: the government does not have a right to any outcome unless and until the jury says so, as to fact and as to law.

Government can start down the road of invading people's liberties by arresting for, and then by prosecuting for, a criminal accusation, but there cannot be a conviction unless a jury is convinced that there is beyond reasonable doubt quantum of evidence and also convinced that general concepts of justice are satisfied by a conviction. That is the original jury's role, the jury that the Framers intended. The thing we label “nullification” is really simply part of the jury's original role, which government generally wants now to suppress. But the jury is not nullifying anything when it considers factors other than sheer evidence, the facts it has decided exists; it has to be convinced both of the factual sufficiency, and of the justice, of the matter, or acquittal is mandated.  You wouldn't know that from some of the comments and instructions from judges and prosecutors.

Over the years, the executive has put pressure on their judicial friends to nay-say the jury's full role, pretending the executive always has a right to a conviction if they have given enough evidence, and judges, who are generally not well-steeped in constitutional history and principles, have given in, commanding attorneys not to let juries know their full powers.

But you see, that proves the point, because the function of the jury was to protect people against not only bad-minded executives and legislatures, but also against bad-minded judges, since the protection of people by juries was against all of government.  And judges are government!

So the fact that a judge tells a jury that they must look only at the questions of fact, and not of law nor of justice nor of punishment, merely points out the increasing need for a robust jury. In other words, the fact that judges say juries can't do their full and intended function of protection of individuals is like the fox telling the farmer that he should not put up a sturdy fence around the chicken coop. The wrongful and harmful claim illustrates the need for the protection.

We must educate the public that despite what wrong-minded government tells the citizenry, the citizens, through their jury power, are the ultimate deciders, and they should not be dissuaded from using their power simply because one of the agencies they are designed to protect us against says they can't protect us against it.

When courts, or the “sovereign's representative” - public prosecutors, speak ill of the doctrine of jury nullification, they thereby speak against the founding principles of the Republic; they thereby speak against the power of the people to govern the Republic, their Republic; they essentially speak constitutional "treason."

Jurors need to know that regardless of what the agencies they were designed to protect us against, the executive, the legislative, and the judicial branches, tell them, they have the power, legitimate power, power recognized and celebrated and endorsed by the Founding Fathers, to disregard evidence and instructions and contrary proclamations and to acquit people who are on trial in front of them. And they have the duty to do so.

We often weep crocodile tears when Independence Day approaches, but jurors taking matters into their own hands and acquitting people on trial is the ultimate exemplar of the sort of independence that the Framers envisioned. Jurors doing otherwise is precisely why we have so many factually innocent people who have been convicted and imprisoned, sometimes for decades.

The only people I have heard who oppose jurors doing their full duties of fact-finding and justice when sitting in judgment of a case are prosecutors and judges [who don't want their power eroded], and theorists [who have never tried a criminal case and hence don't realize the evils that animate the pressing of certain matters into the criminal courts].  In these days of grant-funded criminal "justice," wherein moneys taken from localities to DC in taxes are then parceled back out to the localities via state capitals in the form of grants to localities for pressing certain categories of cases, individual merits regarding justice are eclipsed by the bounty nature of the grant awards. And sometimes government is plain wrong or duplicitous, and it does not serve the liberty interests of the wrongly convicted and imprisoned defendant to suggest that the law might some day be changed.

Some have said that jurors who vote not guilty when sufficient evidence for conviction exists are violating their oaths, and are "scofflaws," and hence can't be deemed to be acting nobly.  That too can reasonably be asserted only by those who don't try criminal cases and hence don't know criminal jury instructions, because jury instructions command jurors to vote "not guilty" if there is not sufficient evidence to convict, but there is no instruction that says they must vote guilty if there is enough evidence. The defendant is "entitled" to an acquittal if there is not enough evidence, but the government is never "entitled" to a conviction if there is.

A well-intentioned and scholarly friend of mine has characterized what he has labeled "jury nullification" as "anarchy in a microcosm." See Mark Pulliam,  In fact, however, a jury that applies a sense of community justice to acquit a person for whom there is technically enough evidence to convict are actually exhibiting "popular sovereignty in a microcosm."

As Ben Franklin intoned, the nature of our liberty is such that it is better that 100 guilty people be turned loose than that even one innocent person be convicted.  He too obviously believed that jurors should occasionally acquit despite sufficient evidence to convict.

And the overriding view of the Founders can be seen in just two statements which represented all of the Founding Fathers:

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Thomas Jefferson

John Adams [the founder of the American conservative tradition]: “Representative government and trial by jury are the heart and lungs of liberty. Without them, we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds."

I recently had a judge who incredibly commanded me not to tell the jury what the Founding Fathers thought on the subject!  That reminds me of a book that was quite central to my epiphany about what our judiciary is doing in this increasingly statist society: I. Müller, Hitler's Justice: The Courts of the Third Reich (D. Schneider trans. 1991 Harvard University Press).

Jurors have the final say on all aspects of a criminal trial: if you don't have the guts to be a full and faithful juror, slink away and make room for those who do.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


Ray Wood

Posted Dec 02, 2015 at 20:24:23

I am in absolute agreement. However, so you have any (historical or legal) authority those of us in the trenches can use if called on it?


Posted Dec 02, 2015 at 21:01:35

There are many writings by the Founders on the subject. Just google Thomas Jefferson and jury nullification, or go to the “well informed jury” webpage, and you will find all you need – if my ipse dixit does not suffice! You recall that…, well, I was there, so I have percipient recollection of the discussions! :)



Posted Feb 24, 2017 at 10:24:37

Heya i’m for the first time here. I found this board and I find It truly useful & it helped me out much. I hope to give something back and help others like you helped me.
educational websites


Leave a Comment

Comments have been disabled.

Go to Top