# Can a Defendant (or his Attorney) Ask the Jury to Nullify? **URL:** \ **Category:** Factual Questions\ **Created:** [July 27, 2012, 7:24pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597 "2012-07-27T19:24:55Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [September 15, 2012, 2:25am UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/101 "2012-09-15T02:25:42Z")
> [@kayaker](#): > > Was that distribution of dangerous drugs being directed to someone against their will? Because personally, I don’t see any fucking difference be,tween giving someone 1/16th of an ounce and giving someone a quarter pound. If they cool win it. ``` The article doesn't go into any details.For all I know, he was selling heroin to 8 year-olds at the schoolhouse door. Which is why a juror should at least hear the evidence before deciding to acquit. ``` ---
**Author:** ![Simple\_Linctus](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Simple\_Linctus](https://boards.straightdope.com/u/Simple_Linctus)\ **Post date:** [September 15, 2012, 2:57am UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/102 "2012-09-15T02:57:15Z")
> [@Really\_Not\_All\_That\_Bright](#): > > If the state makes something a crime, the community, by definition, does think people should go to jail for it. I appreciate this is the retarded definition, fiction, or indeed lie by which courts justify themselves, but it’s simply not true. “The community” does not make laws. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 15, 2012, 3:45am UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/103 "2012-09-15T03:45:54Z")
If I read the article correctly, they charged him with possession of 1/16oz because that’s all they found. They have witness testimony (from buyers, I assume) of dealing, but obviously they did not find a quantity sufficient for the charge of possession for purpose of trafficking. I assume the follow-on argument is that the prosecution witnesses are equally repellent and possibly testifying to get a plea bargain themselves, so the DA is reluctant to bring just those charges. How serious is the handgun offense? My comment stands - you don’t get to persecute - “this man is horrible so throw the book at him for what anyone else would be left alone over”. Justice is blind. So- either the DA screwed up by charging him with a crime that the average juror pool member found repellantly unacceptable to prosecute by piling on an unnecessary charge; or he screwed up in asking the jurors ahead of time. my guess is that the possession was an overcharge to get a plea deal strategy which backfired. After a performance like that, I assume the deal was a lot sweeter for the defendant. If they have the evidence then the other charges stand on their own and justice is served. The man is convicted on the charges that have merit, and not on the farcical one. Score plus one for jury action and minus one for stupid or mendacious prosecutors. Yes a jury can be blatantly wrong and nullify for bad reasons, like racial prejudice. But what is the alternative? Toss jury verdicts the royal “we” disagree with? Try to guess the mentality of the jurors? Dictate the verdict when the judge has decided what the verdict should be? If there is pervasive inequality and prejudice in the system, if “all men are created equal” is ignored by society in general, then jury nullification is the least of your problems. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 15, 2012, 3:58am UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/104 "2012-09-15T03:58:29Z")
Iirc one famous English trial that established the right of jurors to decide what they chose, was the pamphleteer William Penn. (who dat?) The judge disagreed with the jury verdict, and… > [@](#): > > Despite heavy pressure from the Lord Mayor to convict Penn, the jury returned a verdict of “not guilty”. When invited by the judge to reconsider their verdict and to select a new foreman, they refused and were sent to a cell over several nights to mull over their decision. The Lord Mayor then told the jury, “You shall go together and bring in another verdict, or you shall starve”, and not only had Penn sent to jail in loathsome Newgate Prison (on a charge of contempt of court), but the full jury followed him, and they were additionally fined the equivalent of a year’s wages each.[52][53] The members of the jury, fighting their case from prison in what became known as Bushel’s Case, managed to win the right for all English juries to be free from the control of judges.[54] This case was one of the more important trials that shaped the future concept of American freedom (see jury nullification)[55] and was a victory for the use of the writ of habeas corpus as a means of freeing those unlawfully detained. So there’s a good guideline how to prevent jury nullification. Prison, starvation, fined a years wages… ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [September 15, 2012, 4:06am UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/105 "2012-09-15T04:06:40Z")
> [@doreen](#): > > … > > It often seems to me that people in favor of jury nullification believe that the entire community shares their values and that juries don’t and won’t use the power ( not right) in situations that the proponents wouldn’t agree with. I am under no belief that the community shares my values - far from it. On the contrary, I’m pretty sure my values are an outlier. I will advocate in favor of jury nullification in the case of all non-violent minor drug possession. I will likely be in the minority for many years to come. My hope is that over time more people will adopt this position and it will be small step towards correcting the poorly crafted drug laws in this country. So when the topic comes up, I’ll advocate in favor of it. I’m not on the courthouse steps passing out pamphlets - but I support that guy too. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [September 15, 2012, 3:52pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/106 "2012-09-15T15:52:08Z")
> [@Simple\_Linctus](#): > > I appreciate this is the retarded definition, fiction, or indeed lie by which courts justify themselves, but it’s simply not true. “The community” does not make laws. Actually with the propisition system like in California, the community does make some laws. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 15, 2012, 3:56pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/107 "2012-09-15T15:56:58Z")
> [@Simple\_Linctus](#): > > I appreciate this is the retarded definition, fiction, or indeed lie by which courts justify themselves, but it’s simply not true. “The community” does not make laws. That “retarded definition, fiction or lie” is called representative democracy. Have you got a better system? ---
**Author:** ![gms453](https://avatars.discourse-cdn.com/v4/letter/g/50afbb/32.png) [@gms453](https://boards.straightdope.com/u/gms453)\ **Post date:** [September 15, 2012, 4:21pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/108 "2012-09-15T16:21:00Z")
> [@Quartz](#): > > I’ve long wondered why the concept of Jury Nullification isn’t part of the judge’s instruction to the jury. In PA, the judge instructs the jurors that they must follow the law even if they disagree with it. ---
**Author:** ![HeyHomie](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/heyhomie/32/207_2.png) [@HeyHomie](https://boards.straightdope.com/u/HeyHomie)\ **Post date:** [September 15, 2012, 4:30pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/109 "2012-09-15T16:30:49Z")
> [@gms453](#): > > In PA, the judge instructs the jurors that they must follow the law even if they disagree with it. The ACLU needs to look into this, I think. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 15, 2012, 4:36pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/110 "2012-09-15T16:36:24Z")
Seriously? ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 15, 2012, 4:36pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/111 "2012-09-15T16:36:53Z")
> [@gms453](#): > > In PA, the judge instructs the jurors that they must follow the law even if they disagree with it. That does not mean they have to do what the judge says, nor do they have to explain themselves or their verdict to the judge - but if the judge gets a hint that a juror may be planning nullification, he may dismiss the juror on whatever grounds he can find or deems necessary. There’s a whole legal back-and-forth that a real lawyer can probably explain here, that once a jury is empanelled, their decision of innocence prevents double jeopardy. Not sure what happens if the judge delares a mistrial, but the grounds for that are limited to specific reasons. So once the jury is good to go, its up to them. ---
**Author:** ![gms453](https://avatars.discourse-cdn.com/v4/letter/g/50afbb/32.png) [@gms453](https://boards.straightdope.com/u/gms453)\ **Post date:** [September 15, 2012, 10:43pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/112 "2012-09-15T22:43:01Z")
> [@md2000](#): > > That does not mean they have to do what the judge says, nor do they have to explain themselves or their verdict to the judge - but if the judge gets a hint that a juror may be planning nullification, he may dismiss the juror on whatever grounds he can find or deems necessary. > > There’s a whole legal back-and-forth that a real lawyer can probably explain here, that once a jury is empanelled, their decision of innocence prevents double jeopardy. Not sure what happens if the judge delares a mistrial, but the grounds for that are limited to specific reasons. So once the jury is good to go, its up to them. In PA, prospective jurors are routinely asked whether they will follow the law in arriving at their verdict. If they say no, they are stricken; if they say yes, but do not do so, they are liars and have violated the oaths they took before voir dire commenced. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 17, 2012, 1:24pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/113 "2012-09-17T13:24:57Z")
> [@doreen](#): > > I know that, but somehow I suspect that many of the same people who are all for jury nullification in the case of pot possession are outraged when it’s used to acquit the police who use excessive force. I think they either minimize or ignore the risk of nullification being used in all sorts of cases that have nothing to do with drug possession- everything from police brutality to domestic violence cases to rape cases. And you can’t really do that- either the jury represents the community and has the right to ignore any laws it doesn’t like, including those that make it illegal for whites to murder blacks or the jury has a responsibility to apply the law to the facts and convict someone who has committed a crime even if they don’t like the law. If a a person is a proponent of “the jury represents the community and can ignore any law it doesn’t like”, then that person has no business being outraged when the jury does just that. I think we must acknowledge that no system is perfect. IMHO the notion of “100 guilty free rather than 1 innocent in jail” is a good standard. So, in creating our justice system, there were many hurdles placed in the way of the state before they could bring the force of the state to bear on an accused person. The power to vote not guilty for any reason you want is one of those hurdles. And while it can certainly be abused, I have more confidence in my fellow citizens than the government. And I for one am damned tired of hearing this crap, over and over, about whites not enforcing the law for other whites who murder blacks. If you want to put it in perspective, I would bet good money that today, more whites are killed by blacks than whites who have acquited whites who killed blacks. Why, it must be 2 or 3 months since I have seen Klansmen riding around on horses committing lynchings and burning crosses. Months and months…So give it a rest. Time warp ahead 50 years and catch up with the rest of us. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 17, 2012, 1:49pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/114 "2012-09-17T13:49:54Z")
No, that’s a terrible standard. Jefferson was using hyperbole to make a point. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 17, 2012, 2:24pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/115 "2012-09-17T14:24:00Z")
> [@gms453](#): > > In PA, prospective jurors are routinely asked whether they will follow the law in arriving at their verdict. If they say no, they are stricken; if they say yes, but do not do so, they are liars and have violated the oaths they took before voir dire commenced. Some of the situations may involve disagreement with law. Others may simply involve disagrement with facts. For example, Canadian police used to occasionally include “jailhouse informants” describing cellmate confessons to prove their case in questionable prosecutions. To my mind, the reliablity of someone who is trading favours for a good testimony is very questionable, and it seems most of the time when that is the most damning testimony they have, teh whole case is a fabrication. Plus, we have had some high-profile cases in the last decade or two where the police fabricated evidence or totally ignored evidence. Just because I agree with the law in principle does not mean I agree the case falls under that law. Similarly, the Canadian case that most offends me is the one where a man put his severly disabled and vegetative daughter in a truck and ran the exhaust in, gassing her. The prosecutor argued he did this because he was tired of caring for her, rather than because she was scheduled for another major surgery - remove thighbones - to alleviate pain caused by muscle strain of her disease; he simply wanted to put her out of her misery. Is that REALLY first degree murder? Is a mercy killing murder in your eyes too? He intended to have her die, but to my mind he did not intend to MURDER her. Given that the mandatory sentence for first-degree murder was 10 years - a detail the jury was not allowed to know - some said later they would not have convicted if they had known the sentence. If I disbelieve the prosecutor’s premise, or do not consider what the father did as “murder”, am I refusing to “follow the law”? Aside from the stupidity, “follow the law” can mean everything from doing what the law says to “do you understand what the law is saying?” (“Yes, I follow, I understand what it is telling me.”) So, in a Clintonesque manner, if you don’t make it compeletely clear what you are asking, I am under no obligation to clarify what I am answering. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 17, 2012, 2:31pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/116 "2012-09-17T14:31:51Z")
> [@Really\_Not\_All\_That\_Bright](#): > > That “retarded definition, fiction or lie” is called representative democracy. Have you got a better system? I’ll take Democratic Republic for 1000 Alex! ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [September 17, 2012, 9:58pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/117 "2012-09-17T21:58:34Z")
> [@mmmbeer](#): > > I think we must acknowledge that no system is perfect. IMHO the notion of “100 guilty free rather than 1 innocent in jail” is a good standard. So, in creating our justice system, there were many hurdles placed in the way of the state before they could bring the force of the state to bear on an accused person. The power to vote not guilty for any reason you want is one of those hurdles. No, it’s not ( at least not in most places) . If it was a hurdle deliberately placed in the way of the state , it would absolutely be in the jury instructions Just like jurors are instructed to vote guilty only if they are convinced beyond a reasonable doubt, rather than because the defendant is probably guilty The jury certainly has the power to vote not guilty for whatever reason they want to. So what. They also have the power to vote guilty for any reason they want to. That doesn’t give them a right to do it, it just means there may be no way to stop it. > [@](#): > > And I for one am damned tired of hearing this crap, over and over, about whites not enforcing the law for other whites who murder blacks. If you want to put it in perspective, I would bet good money that today, more whites are killed by blacks than whites who have acquited whites who killed blacks. Why, it must be 2 or 3 months since I have seen Klansmen riding around on horses committing lynchings and burning crosses. Months and months…So give it a rest. Time warp ahead 50 years and catch up with the rest of us. I didn’t mention any Klansmen ,and I gave other examples, but you know what? I’m tired of hearing the community doesn’t agree with the law. No ,those 12 people don’t agree with the law.If there are 12 wifebeaters on the jury ( or 3 wifebeaters and 9 people who want to go home), no one gets convicted of beating his wife. Doesn’t tell you a damn thing about the reast of the community. If the community as a whole strongly disagreed with the law, the politicians would be falling all over themselves to repeal it in order to get reelected and the district attorney would stop prosecuting violations in order to get re-elected and the cops would stop making arrests because it would be pointless. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 17, 2012, 10:11pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/118 "2012-09-17T22:11:00Z")
> [@mmmbeer](#): > > I’ll take Democratic Republic for 1000 Alex! That’s the same system, guy. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [September 17, 2012, 10:39pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/119 "2012-09-17T22:39:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > That “retarded definition, fiction or lie” is called representative democracy. Have you got a better system? Direct democracy. A jury of your peers and the occasional town hall meeting is all we have left of that system. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 17, 2012, 11:41pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/120 "2012-09-17T23:41:31Z")
Are you proposing that all criminal laws should be enacted by plebiscite? [Previous page](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597.md?page=5) [Next page](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597.md?page=7)