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Ask The Barrister, Jury Nullification

Dear Barrister,

I have a moral dilemma. I am a juror in a criminal trial, and we are in deliberations. The defendant is a 19-year-old kid who got busted with several ounces of marijuana. He is guilty, but ethically, I find it reprehensible for this non-violent, young man who seems like a good kid, to go to jail for a victimless crime. Will I get in trouble for refusing to find the defendant guilty even though I know he is? The judge told us we must convict if we believe the facts indicate he is guilty.

I smoke pot myself.

Dear Pot-smoking juror;

This is a good question that deals with the somewhat-confusing conundrum of what we call “jury nullification.” Jury nullification occurs when a jury, believing a defendant is guilty, nevertheless acquits or finds the defendant not guilty for reasons outside of the facts of the case.

Usually, because they don't believe the law is just.

Every American should attempt to educate themselves on this power that we all wield.

Before I get into details, I will briefly answer your actual questions:

What should you do?

You should do what you think is right.

Will you get in trouble for not convicting the man and using jury nullification?   

Absolutely not. 

However, you could be potentially in trouble for discussing the case with outside sources during deliberations.

But since that is now moot, let’s move on to jury nullification.

The concept of jury nullification has existed long before America existed. It is perhaps most powerful in our American criminal courts, because there is no way to stop jury nullification. If a jury acquits a criminal defendant, there is no device that can reverse that decision.

It doesn’t matter how bizarre or nonsensical the jury’s reasoning may be. They could admit to flipping a coin, playing a game of Monopoly or arm wrestling or they might think the law is wrong or unfair. No judge, nor prosecutor, nor government official can change their verdict. The defendant shall be found not guilty, and the concept of double-jeopardy prevents the defendant from being tried again for the same crime in that court.

Note also that if even one juror votes "not guilty" and the others all vote guilty, the jury is hung and the defendant will not be found guilty.

However, the prosecution has the option of trying the defendant again.

Some of the more memorable instances of jury nullification occurred before the Civil War when Northern juries refused to convict runaway slaves and those who assisted those slaves in violation of the Fugitive Slave Act.

Some say this, and other events that resulted from it, helped spawn the Emancipation Proclamation.

During the 1920s Prohibition era, juries routinely acquitted bootleggers and those found in possession of alcohol.

This helped lead to the repeal of Prohibition.

Many legal scholars speculate that modern instances of jury nullification in drug cases (such as marijuana cases like yours) will help lead to the repeal of our drug laws.

In short, if you don't think that a person should go to jail for possession of marijuana, then it is your duty to find that person not guilty - to send a message to government that you think the law is wrong.

In fact you have a duty to hang the jury, if your conscience is strong enough on this topic, even if every other juror disagrees with you.

Certain politicians and political parties have advocated for the increased use of jury nullification to combat unjust laws such as our drug laws where oftentimes victimless crimes result in horrendous penalties for people and fill our prisons to overflowing with non violent offenders.

Former U.S. Representative and presidential candidate Ron Paul has written on the importance of juries being finders of both fact and law, and using jury nullification, if they disagree with the law. The Libertarian Party states as part of their platform that they “assert the common-law right of juries to judge not only the facts but also the justice of the law.”

Whereas, your judge, in your case, as well as judges generally everywhere in America, will instruct the jury to be finders of fact only, there is no way, other than persuasion, to enforce this debatable rule.

Shall juries be finders of fact, or finders of law and fact?

Despite what the court tells you, that decision is entirely up to you.

The reason the founders of the constitution placed such an emphasis on jury trials is not because they thought jurors were best at determining the facts of a case but that they were the best - being culled from the people- to judge whether the government has gone too far with its laws.

Jury nullification gives the power to the people to veto bad laws.

But you must decide personally and privately whether the law is just or unjust.

No one, not even the judge, may do that for you.



Niagara Falls Reporter - Publisher Frank Parlato Jr. www.niagarafallsreporter.com

JUL 09, 2013