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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.

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 thing we label “nullification” is really simply part of the jury's original role, which government wants now to suppress. But the jury is not nullifying anything when it considers factors other than sheer evidence; it has to be convinced both of the factual sufficiency, and of the justice, of the matter, or acquittal is mandated.

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, 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 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; they essentially speak 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, 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 out to the localities via state capitols 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.

A well-intentioned and scholarly friend of mine has characterized what he has labeled "jury nullification" as "anarchy in a microcosm"; in fact, a jury that applies a sense of community justice to acquit a person for whom there is technically enough evidence to convict are exhibiting "popular sovereignty in a microcosm." See Mark Pulliam, www.libertylawsite.org/2018/01/16/jury-nullification-good-or-bad/

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.

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

Comments

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?

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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! :)

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