Should Jurors Be Instructed About Jury Nullification? [POLICYbrief]

When a member of a jury believes a defendant is guilty and chooses to acquit the defendant anyway for reasons of justice, law misapplication, or harsh punishment, this is known as jury nullification. The validity of jury nullification is an idea that is hotly debated in criminal justice, and in this episode of POLICYbrief, Cato Institute’s Clark Neily argues in favor of instructing jurors about what Neily calls “conscientious acquittal,” while Berkeley Law’s Orin Kerr argues that jury nullification empowers niche and sometimes undesirable views of justice.

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speaker.

Learn more about Clark Neily:

Follow Clark Neily on Twitter: @ConLawWarrior

Learn more about Orin Kerr:

Follow Orin Kerr on Twitter: @OrinKerr

Related links:

Our Broken Justice System

The problem with jury nullification

Bring Back The Jury Trial

Differing views:

Jury Nullification: Good or Bad?

More on the debate over jury nullification – a response to Orin Kerr

It’s Perfectly Constitutional to Talk About Jury Nullification

Changing views of jury power

[garetclaborn]

Without the existence of jury nullification, there is no point at all to having a jury of peers
Juries are a check and balance against legislative and judicial tyranny
Being too forgiving is a better problem than being too tyrannical
Protect liberty, presume innocence, resist corruption

[dcabral]

So basically, Judges and Lawyers don't want Jurors to be stupid, but they do want them to be ignorant.

[calidude]

As Patrick Henry once put it: “Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off. This gives me comfort - that as long as I have existence, my neighbors will protect me.”

[PC-uhhk]

I think that Jury Nullification should be common knowledge. Law enforcement always states that ignorance of the law is no excuse and for that reason, Jury Nullification should be taught in high school along with paying taxes and having a bank account. We should not enter adulthood without the tools to defend our adult lives. If more people were aware of the law, the judge would have a better chance to learn from society whether a law is unjust or if it does not apply in a particular case. Courts don't like to lose revenue so have buried and hushed knowledge of Jury Nullification but if used correctly, it could cure a lot of pain and suffering over some laws that simply are not constitutional.

[FoxElliott]

Wait, then the PEOPLE would get to decide the law, like, without lobbying or jerrymandering? Oh the horror.

[arlosmith]

As a lawyer I'll tell you the truth: Jury nullification is legal. This was established in the Bushel case in 1670 which held that jurors can't be punished for delivering a verdict contrary to the court instructions because juries are entitled to determine both law and facts. If you don't believe me look up Bushel's case on Wikipedia. Other lawyers have criticized me for telling you jury nullification is legal. Too bad! I learned about it in law school - as the other attorneys did too ⚖️

[camadams]

Given we have people getting 10-20 years in prison for a gram of cannabis.... yah clearly the checks are not enough

[thundercricket]

Most people don't realize that when you serve on a jury you're not there to determine if the defendant is innocent or guilty of breaking the law. You're there to determine if the defendant is innocent or guilty of committing a crime. And that's an important distinction.

[operamatthew]

YES!

God forbid we give those who are selected to make a decision of guilt actually make a decision of guilt. Those against it are against the individuals and free speech.

[NoShiiitSherlock]

CONTENTIOUS AQUITTAL! That's amazing AND very accurate. I've never heard it explained in that way. That's all it is - judgment in moral conscience. If exercising this is frowned upon - then the game is rigged by everyone. We absolutely should instruct Jurors on JN - or CA

[Hike_and_Yap]

Another reason the state of New Hampshire is one of the best states to live in. HB 146 “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy”.

[notapilot]

My understanding of jury nullification is that a jury cannot be punished for a decision rendered by them. For instance, let's say a defendant is accused of jaywalking, and jaywalking is a crime on the books. A jury might deduce that the jaywalker is guilty, but the consensus in the jury is that there should not be a law against jaywalking, so they render a verdict of not guilty. In effect, they 'nullify' the jaywalking law. If enough juries do this, then law enforcement will stop arresting people for jaywalking. In this way, a jury is the ultimate lawmaker. I think juries should be advised openly that they have this power, and that they are there not just to yes/no the presentation of the evidence.

[dominichess]

What if the people just don't like the law? Isn't this government of the PEOPLE? Leave it to federalists to be hacks

[jimkiser]

'The Fugitive Slave Act' law, prior to the Civil War was enacted to prevent Northern abolitionists from helping slaves flee to the north. There were trials to prosecute abolitionists who helped these slaves escape. In most of those trials, the FACTS covered by law were all true, but juries nullified them anyway. There have also been trials were nullification has been used unjustly, in a selfish and egotistical manner. The key is ALWAYS the juror. He has been given this power for reasons more sacred than excuses used to try to wrestle this right away from him. The jury MUST be moral and use the right in a wise and non-egotistical manner.

[DaveElectric]

Isn't preventing jury nullification = jury tampering?

[jamiebackes]

Look, do all of you know what the phrase that our Code of Law is based on? "It is better to let 10 guilty men go than convict one innocent man."

[AndrewSmith-fvkr]

Yes they should, if judges can legislate from the bench why cant we do the same from the jury box?

[johntingle]

The aim of any case should be justice for the defendant. Is the law and it's penalty just for the crime the defendant is accused. Not all laws are just. Nor are all penalties just. The jury in a jury trial are the sole Arbiters of what is just. Not the judge/administrator of the Court, not the prosecutor, nor the legislature. That power belongs to the people when judging their fellow man not the government. They can use their discretion to find a defendant not guilty if they find the law and it's penalty unjust. Juries should always be given the knowledge of the power they possess when making their determination. this is why it is important for a defendant to be tried before a jury of his peers. To receive Justice at their hands. In fact if the jury is not informed of their power to judge the law and its penalty that in itself would be a miscarriage of JUSTICE.

[True_Camo]

How to get out of jury duty: Talk about your knowledge of jury nullification.

[ExecutionerDan]

Is it still possible to be arrested for deciding to nullify? I know that in the process of selecting a jury member, they question in a roundabout way of whether or not the juror has been informed of jury nullification just to make sure the juror doesn't know. In doing so, they try to catch you with perjury for lying to them with the intent to get on the jury to nullify. Since perjury is more than a petty crime I would have the ability to call for a trial by jury, and the jury would then learn that the whole reason I'm being taken to trial is because I simply decided to nullified, thus giving the jury knowledge of nullification as well. After that, I would simply have to make the case that me simply being in the courthouse is unjust. Though, I'm pretty sure the judge would try and select a jury that doesn't care about the ability of nullification and try to get me arrested either way since the "justice" system is so incredibly fucked.