Jury nullification has always fascinated me. You have these ubiquitous gatherings of citizens serving an important judicial function, but chances are at least some of them won’t even know of this “secret power” they possess – right?
I wonder: Is this something that’s often used in reality or just some minor legal curiosity?
Do jurors have any other hidden rights that the judge won’t tell them?
There’s dozens of threads here on this.
Jurors, yes, can do anything they want. Nullification got a bad name in the American south, where it came to mean acquitting a white man (men) of killing a black man.
The law - prosecutors and judges - would like you to think the only right of a jury is to determine if the law was broken. In fact, a jury can decide whatever the hell it wants and absent jury tampering, a “Not Guilty” is pretty much the final verdict.
The upshot of the discussions here generally was that one whacko with an agenda probably would not derail a jury. Worst case, you get a hung jury. If the juror was particularly obnoxiously disregarding procedure, obstructive, etc., they might get tossed of the jury, but the judge has to be careful not to give grounds for an appeal.
Usually people who end up on juries are serious about their job, and consider the facts carefully. Usually (!!) people who make it to trial are guilty as hell, or it sure looks that way. A lucky defendant (like OJ?) has no explicit evidence against them, and it’s all circumstantial.
However, most jurors take their role seriously and use to opportnity to serve society, not to exercise some personal social/political agenda.
How many know they can do what they want? Often the judge’s charge will come close to telling the jury “you must follow the law”. I doubt many jurors have looked into the details, and the system is not going to inform them. But… misleading a jury can be grounds for appeal. Deep down, I’m sure most jurors will not vote to convict someone they think is not guilty.
I very much doubt that it happens at all in reality these days. Sure one juror with an agenda can screw things up but the most that they can hope for is a mistrial. I can’t believe that there will be a jury full of activists who will pull a nullification stunt.
I live in Montana and was on a DUI jury trial a few years ago. One juror made it clear at the start of deliberations that he was going to vote to acquit no matter what since he is against DUI laws. Yes, really. I was the foreman of the jury and I was debating whether to report this to the judge or not, hoping he would be dismissed, but there was nobody to replace him, and having 6 people meant a greater chance of a split decision.
Instead we just ignored him and carried on as if he wasn’t there. As it turns out we decided there wasn’t enough evidence to convict. Had we instead voted to convict, and he was the lone holdout, I would have let the judge know what was going on…
So it still happens, because there are people who think they can derail a trial by refusing to deliberate in good faith.
The Master wrote an outstanding article on this subject:
Nitpick: that’s actually a staff report, written by Bricker. Which is actually helpful, because maybe he’ll stop by this thread.
Hello!
It’s perhaps more useful to think of jury nullification as a power, not a right. Because the jury verdict cannot be impeached, a jury indeed has the power to acquit for any reason, even one not related to the evidence they heard at trial. But doing this is typically violative of the oath they took as jurors and of the instructions given to them by the judge.
They don’t have the right – they have the power.
Hmmm. Well, in some jurisdictions, jurors are permitted to pose questions to the witnesses during trial.
Apart from that, nothing comes to mind.
Thank you for the correction. No nitpick: the author deserves credit.
" But doing this is typically violative of the oath they took as jurors and of the instructions given to them by the judge."
This is also my understanding.
This is a bit of a nitpick. When I was on a jury we were able to write down a question and hand it to the bailiff to give to the judge. The judge then decided whether or not to actually ask the question.
So what does this mean? If a juror engages in nullification and admits it, can they get in any sort of trouble? Or is it better to keep yer yap shut and just cast your vote without saying why?
I think you can make the argument that juries do have the right to nullification, or at least that nullification was considered a fundamental right of juries when the Constitution was written. See Georgia v. Brailsford (3 US 1), for instance. Or, for John Adams feelings, see his diary of Feb 12, 1771:
It had only been 40 years since the Zenger libel case, and also the events of the Bloody Assizes still were part of the public imagination, especially in New England., Juries were seen as the last bastion against governmental overreach.
If I am called to serve, and the prosecutor (I’m guessing the Defense doesn’t care as much) ask “Can you fairly and impartially apply the law, as stated by this Court, without prejudice?”
(I’m guessing that is pretty much what the relevant Q looks like) and I say say “Yes”. In this case “Yes” means “I can; don’t bet that I will”.
I then espouse an alternate theory of justice as soon as the door is closed and steadfastly refuse to vote guilty “because xxxxxxx shouldn’t be a crime” or “this defendant, this time, warrants a pass”, could I reasonably play the game that “I was asked if I could: I was NOT asked if I would”?
Note: I am leaving beside my Freeman Status because you folks are not sophisticated enough to comprehend 
Not to mention the major case that established a jury’s right to decide whatever it wanted, was a case in Britain aganst some guy named William Penn in the previous century - I’m sure some areas of the colonies appreciated that. After the judge tried to lock up the jury for not deciding the right way, it was established that a judge cannot tell the jury how to decide.
Judges usually tell the jurors they must reach a unamopious verdict. The idea that it could be a hung jury isn’t mentioned until the judge sends them back to keep trying a few times. I suspect most jurors are aware of the concept, however.
I was really hoping this was some kind of obscure legal term.
Two questions related to but not identical with the OP:
Do the “scurrilous adverbs” have legal validity? E.g., the typical criminal charge alleges that “on or about 12 November 2012 the accused did criminally, feloniously, intentionally (or negligently) commit the crime of Mopery in the Second Degree by [description of act].” Might a jury find that the accused did commit the act described but did not do it with mens rea (or criminal negligence) and hence falls short of what was charged by not doing it in the manner the adverbs describe?
The typical grand jury hears the cases the DA brings before them and determines whether to lay an indictment for a felony charge (and occasionally lays one for a misdemeanor where they feel a felony charge is unwarrranted). You occasionally hear of grand jury investigations. What powers do grand juries have beyond the review of alleged felonies?
And not every state even requires a unanimous verdict. Louisiana and Oregon don’t. Some states even use juries with less than 12 people.
Until a real lawyer shows up:
mens rea is a term few jurors know - I’m guessing that if the Judge does not cover it in his instructions, it is unlikely a juror will mention it. Also, if that was clearly the case, why wouldn’t the Defense use Diminished Capacity as a defense?
Grand Juries are famous for going off track - see “run-away Grand Jury”. They can (at least some jurisdictions) issue subpenas, demand documents - generally engage in witch hunts. Don’t know how such a jury would be stopped.
Bricker, why did you not cite Bushell’s Case. That’s the case which established Jury discretion to give a verdict in conflict with judicial wishes. And, I have seen it cited in the US.