# 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:** 8
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [September 18, 2012, 4:47pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/141 "2012-09-18T16:47:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > … you’ll realize you’re actually a fictional character in an Augusto Boal novel? 😛 Your hyperbole just kicked my hyperbole’s ass. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 18, 2012, 4:49pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/142 "2012-09-18T16:49:31Z")
> [@mmmbeer](#): > > That is where the Republic part of our government is SUPPOSED to kick in and say tough shit. This is not a Democracy and you, majority of everyone except 1 person, do not get to take away his rights by ballot. If you are not hurting anyone else, I (and 200 million others) don’t get to put you in jail, and by extension, we don’t get to get others (read the government) to do it for us. The “tough shit” provisions are in what we call the Constitution. That’s also part of the structure of government and law. Where does it say that you have a right not to be harshly punished for non-violent drug crimes? ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 18, 2012, 4:53pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/143 "2012-09-18T16:53:25Z")
> [@Acsenray](#): > > The “tough shit” provisions are in what we call the Constitution. That’s also part of the structure of government and law. Where does it say that you have a right not to be harshly punished for non-violent drug crimes? I’ll go with excessive punishment just off the cuff. Not that the government is following that particular document very well. ---
**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 18, 2012, 5:03pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/144 "2012-09-18T17:03:29Z")
The Constitution prohibits cruel and unusual punishment, not excessive punishment, and **Ascenray** ’s point is that _the judiciary_ is tasked with determining the constitutionality of laws. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 18, 2012, 5:15pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/145 "2012-09-18T17:15:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The Constitution prohibits cruel and unusual punishment, not excessive punishment, and **Ascenray** ’s point is that _the judiciary_ is tasked with determining the constitutionality of laws. Potato, potato. To punish someone excessively would be cruel and not the usual. Or do we have to argue this also? I sense that I am a minority in thinking that the government works for us. The fact that the government says that it is okay, for the government to do, what the government wants to do, doesn’t make me feel all warm and cozy. And that is my personal standard. ---
**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 18, 2012, 5:22pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/146 "2012-09-18T17:22:26Z")
> [@mmmbeer](#): > > …that is my personal standard. Good for you. The problem is that you have decided that your personal standard trumps the law of the land. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 18, 2012, 5:36pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/147 "2012-09-18T17:36:38Z")
> [@mmmbeer](#): > > I sense that I am a minority in thinking that the government works for us. No, you’re just in the minority regarding what it means to say that “the government works for us.” > [@](#): > > The fact that the government says that it is okay, for the government to do, what the government wants to do, doesn’t make me feel all warm and cozy. When “the government” does something within the bounds of the law, duly authorized by the law, by the legislature as chosen by us, within its constitutional authority, then _it is us_. When you cripple the power of the government to act legally within its authority and within the law and you cripple the justice system with regard to its ability to enforce legitimate law you are crippling _us_. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 18, 2012, 6:08pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/148 "2012-09-18T18:08:40Z")
So in answer to: Originally Posted by Acsenray The “tough shit” provisions are in what we call the Constitution. That’s also part of the structure of government and law. Where does it say that you have a right not to be harshly punished for non-violent drug crimes? I responded with: excessive force which was corrected to: The Constitution prohibits cruel and unusual punishment So I will go with The U.S. Constitution for where I have a right not to be harshly treated for non-violent crimes. So, the fact that the government is overstepping it’s bounds and it is saying that it is ok for them to overstep their bounds doesn’t line up with the whole duly done and blah, blah, blah. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 18, 2012, 6:34pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/149 "2012-09-18T18:34:03Z")
> [@mmmbeer](#): > > excessive force which was corrected to: > The Constitution prohibits cruel and unusual punishment > > So I will go with The U.S. Constitution for where I have a right not to be harshly treated for non-violent crimes. > > So, the fact that the government is overstepping it’s bounds and it is saying that it is ok for them to overstep their bounds doesn’t line up with the whole duly done and blah, blah, blah. Simply quoting a line in the Constitution doesn’t establish that the government has overstepped its bounds. Or is your personal opinion the final arbiter of what the Constitution means? Is that what your argument comes down to? “Because I say so”? ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 18, 2012, 7:05pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/150 "2012-09-18T19:05:36Z")
> [@Acsenray](#): > > Simply quoting a line in the Constitution doesn’t establish that the government has overstepped its bounds. > > Or is your personal opinion the final arbiter of what the Constitution means? Is that what your argument comes down to? “Because I say so”? It is for me, yes. And it is for each juror, to decide for himself if a person should be sentenced to whatever for some petty ass not hurting anyone minding his own business rampant crime spree. And I love that a lot. Here’s something else I love a lot: “New Hampshire’s jury nullification law reads, in relevant part: ‘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.’ ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [September 18, 2012, 7:17pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/151 "2012-09-18T19:17:19Z")
> [@mmmbeer](#): > > It is for me, yes. And it is for each juror, to decide for himself if a person should be sentenced to whatever for some petty ass not hurting anyone minding his own business rampant crime spree. Well, “because I say so” is exactly the opposite of what “justice” means. ---
**Author:** ![gms453](https://avatars.discourse-cdn.com/v4/letter/g/50afbb/32.png) [@gms453](https://boards.straightdope.com/u/gms453)\ **Post date:** [September 19, 2012, 12:39am UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/152 "2012-09-19T00:39:25Z")
> [@mmmbeer](#): > > It is for me, yes. And it is for each juror, to decide for himself if a person should be sentenced to whatever for some petty ass not hurting anyone minding his own business rampant crime spree. > > And I love that a lot. > > Here’s something else I love a lot: > > “New Hampshire’s jury nullification law reads, in relevant part: ‘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.’ The NH statute you quote is the most anemic description of “jury nullifcation” I have ever read (if that is even what it is intended to be). In PA, judges routinely instruct jurors in criminal cases that it is up to them and them alone, after careful consideration of all the evidence presented, to decide what the facts are, and then decide whether those facts prove beyond a reasonable that the deft. has committed the criminal offense of which s/he is accused. ---
**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 19, 2012, 12:45am UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/153 "2012-09-19T00:45:30Z")
It also doesn’t sound very different from how juries are supposed to act in any other jurisdiction. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 21, 2012, 6:30pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/154 "2012-09-21T18:30:36Z")
> [@gms453](#): > > The NH statute you quote is the most anemic description of “jury nullifcation” I have ever read (if that is even what it is intended to be). In PA, judges routinely instruct jurors in criminal cases that it is up to them and them alone, after careful consideration of all the evidence presented, to decide what the facts are, and then decide whether those facts prove beyond a reasonable that the deft. has committed the criminal offense of which s/he is accused. The whole arguement concerning jury nullification is whether a juror may judge the law itself and vote not quilty even if the deft admits to committing the crime. What you are describing is just what jurors do in any old case. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 21, 2012, 8:37pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/155 "2012-09-21T20:37:38Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It also doesn’t sound very different from how juries are supposed to act in any other jurisdiction. Jurors are told the exact oppposite. That they are only to judge if the accused commited what he is accused of committing, not whether they should judge the facts and the application of the law. That is very different! ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [September 21, 2012, 9:40pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/156 "2012-09-21T21:40:09Z")
> [@mmmbeer](#): > > Jurors are told the exact oppposite. That they are only to judge if the accused commited what he is accused of committing, not whether they should judge the facts and the application of the law. That is very different! ``` Either you're not clear on the difference between ignoring the law and applying the law or you're focused on a small subset of laws where there is strict liability. If I shoot and kill you, have I committed a crime? Maybe. I may have shot you in self-defense, which is no crime at all if I am justified. Maybe it wasn't self defense, and it therefore is a crime. Which crime ? Is it murder,manslaughter, or negligent homicide ? If I am charged with all of those crimes, and the jury decides I did indeed shoot you and you died , but based on the law and the facts I am not guilty of murder but I am guilty of the lesser charge of negligent homicide that is **not** jury nullification. If I am only charged with murder, and the jury decides based on the law and the facts that I am not guilty of murder and therefore acquits me, that is also not jury nullification. Only if the jury decides to acquit me on some basis other than the facts and the law (such as disagreeing with the law or the possible sentence) is it jury nullification. ``` ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 21, 2012, 9:59pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/157 "2012-09-21T21:59:49Z")
> [@doreen](#): > > Either you’re not clear on the difference between ignoring the law and applying the law or you’re focused on a small subset of laws where there is strict liability. If I shoot and kill you, have I committed a crime? Maybe. I may have shot you in self-defense, which is no crime at all if I am justified. Maybe it wasn’t self defense, and it therefore is a crime. Which crime ? Is it murder,manslaughter, or negligent homicide ? If I am charged with all of those crimes, and the jury decides I did indeed shoot you and you died , but based on the law and the facts I am not guilty of murder but I am guilty of the lesser charge of negligent homicide that is **not** jury nullification. If I am only charged with murder, and the jury decides based on the law and the facts that I am not guilty of murder and therefore acquits me, that is also not jury nullification. Only if the jury decides to acquit me on some basis other than the facts and the law (such as disagreeing with the law or the possible sentence) is it jury nullification. What about possession 1/16oz (less than 2g) of marijuana? Technically, even one tiny crumb would qualify as “possession”, if the law is silent on lower limit for quantity. There is also the technical question of what consitutes “possession” if it was found in the ashtray or garbage and the miniscule quantity is obviously throw-away. In such situations, the jury is exercising something the DA seemed to lack, common sense. Not sure if it’s nullification or just common sense to believe “the law says any quantity is possession, but I’m going to think that they did not intent it to apply to (a) discarded amounts (b) well below the threshhold of usability”. Obviously it’s a matter of debate, since one DA said the law applied and a whole pool of potential jurors said it didn’t. I think a lot of the job of jurors is to apply perspective. Having said that, I suspect a large number of apparent “nullification” cases are not so much “we fully disagree with the law” as “we don’t believe it’s a good idea to apply the law in this set of circumstances”. Sometimes this can be bad, when the circumstances involve white and black. SOmetimes they can be good, or debatable, as with Kevorkian - assisted suicide should be a bad idea if the person is just unbalanced or depressed; but as a mercy killing of a soon-to-die person, maybe the law should not apply. ---
**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 21, 2012, 10:16pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/158 "2012-09-21T22:16:27Z")
> [@mmmbeer](#): > > Jurors are told the exact oppposite. That they are only to judge if the accused commited what he is accused of committing, not whether they should judge the facts and the application of the law. That is very different! The jury’s power to apply the law means they are the finder of fact; they apply the law to the facts in the instant case. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [September 21, 2012, 10:35pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/159 "2012-09-21T22:35:07Z")
> [@md2000](#): > > What about possession 1/16oz (less than 2g) of marijuana? Technically, even one tiny crumb would qualify as “possession”, if the law is silent on lower limit for quantity. There is also the technical question of what consitutes “possession” if it was found in the ashtray or garbage and the miniscule quantity is obviously throw-away. You’ve got to read the actual law. For example, in NY possession of less than 25 grams of marijuana is not a crime unless it is either in public view or actually being smoked in a public place. (possession of less than 25 grams is a violation, but that’s essentially the equivalent of a traffic ticket) You’ll find that a lot of laws have certain circumstances built into the law - the law itself will often state “It will not be a violation of this section when…” > [@](#): > > Having said that, I suspect a large number of apparent “nullification” cases are not so much “we fully disagree with the law” as “we don’t believe it’s a good idea to apply the law in this set of circumstances”. Sometimes this can be bad, when the circumstances involve white and black. SOmetimes they can be good, or debatable, as with Kevorkian - assisted suicide should be a bad idea if the person is just unbalanced or depressed; but as a mercy killing of a soon-to-die person, maybe the law should not apply. Same thing really - the “mercy killing” of a soon-to-die person may well not meet the definition of a crime if it consists of giving the dying person a sufficient amount of narcotics to relieve pain even if the narcotics hasten death. If the “mercy killing” consists of suffocating a pain-free disabled person with a pillow because the caregiver “couldn’t bear to see him like this anymore”, it probably will meet the definition of a crime, and juries can and should make that distinction. Nullification would be if the jury decided to acquit the suffocator even though the behavior was intended to cause death and met all the elements of a crime. ---
**Author:** ![mmmbeer](https://avatars.discourse-cdn.com/v4/letter/m/ecb155/32.png) [@mmmbeer](https://boards.straightdope.com/u/mmmbeer)\ **Post date:** [September 22, 2012, 12:41pm UTC](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597/160 "2012-09-22T12:41:29Z")
> [@mmmbeer](#): > > “New Hampshire’s jury nullification law reads, in relevant part: ‘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.’ > [@](#): > > The jury’s power to apply the law means they are the finder of fact; they apply the law to the facts in the instant case. (to judge the facts and the application of the law in relation to the facts) In math this is called the distributive property. To judge the facts…and… to judge the application of the law in relation etc So, they are being told that they may judge the application of the law. Before, jurors were told by the judge that they could not judge the law, but only to decide if the defendant did what he was accused of doing, no matter if they agreed with the law or not. > [@](#): > > Either you’re not clear on the difference between ignoring the law and applying the law If a juror does’t apply the law, which is jury nullification, there is no difference, he is ignoring it. He is nullifying the law. So, NH has officially recognized the power that juries have always had, but have been denied for a long time. [Previous page](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597.md?page=7) [Next page](https://boards.straightdope.com/t/can-a-defendant-or-his-attorney-ask-the-jury-to-nullify/629597.md?page=9)