# Jury Nullification
**URL:** https://boards.straightdope.com/t/jury-nullification/390245
**Category:** Factual Questions
**Created:** [January 31, 2007, 7:53am UTC](https://boards.straightdope.com/t/jury-nullification/390245 "2007-01-31T07:53:10Z")
**Posts on this page:** 10
**Page:** 1
### Author:  [@Klaatu](https://boards.straightdope.com/u/Klaatu)
#### Post date: [January 31, 2007, 7:53am UTC](https://boards.straightdope.com/t/jury-nullification/390245/1 "2007-01-31T07:53:10Z")
This was mentioned in another thread, and I am hoping one of our resident legal types, or any informed poster could weigh in. After some cursory research, as I understand it, a jury can render a verdict different from any instructions from the court, basically saying something like “We think this law sucks, blah, blah, and this is our verdict.”
It also seems that judges possibly aren’t required to notify a jury of this option. And finally, a poster said that during voir dire, if a prospective juror mentioned jury nullification, they would be automatically excused. Is this true?
I probably misunderstand this completely, and would appreciate the straight dope.
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### Author:  [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)
#### Post date: [January 31, 2007, 2:20pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/2 "2007-01-31T14:20:03Z")
First of all, it’s not an “official” option, ay least not in most states. Technically it’s violating juries’ purposes to nullify the verdict. However, jurors cannot be punished no matter how they vote, and therefore it _de facto_ part of the legal system. However, the jury does not tell the judge _why_ they voted that way and they cannot be, AFAIK, required to state their reasoning.
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [January 31, 2007, 2:46pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/3 "2007-01-31T14:46:39Z")
This gets tricky – it’s not necessarily, “We think that’s a piece-of-crap law” that can trigger it.
Remember that a jury’s job is to render justice by arriving at an agreement between them that in their opinion the accused did or did not commit [some or all of] the crime[s] he is charged with beyond a reasonable doubt. Note that that whole definition from “jury’s job is” on is pertinent.
If every element of the crime charged is not demonstrably present, they are expected to acquit on that charge. If the defense has established groups for reasonable doubt, they may acquit.
But, and here’s the final point, and the one where jury nullification comes into play: their job is to **do justice**. And if in their opinion rendering the verdict called for by the law and the facts as they know them would cause a miscarriage of justice, they may vote to acquit.
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [January 31, 2007, 2:59pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/4 "2007-01-31T14:59:19Z")
Some previous threads on the topic:
> **[Jury Nullification - Any US States where it is legally permitted?](https://boards.straightdope.com/sdmb/showthread.php?t=364589)**
>
> I’m in a bit of a discussion with a friend who has asserted that there are some states in the U.S. where jury nullification is expressly permitted. My understanding from the (many) previous threads on this topic is that this is incorrect - certainly...
> **[Jury nullification](https://boards.straightdope.com/sdmb/showthread.php?t=362152)**
>
> I was watching a piece on the news this morning about a kid in GA who was sent up for ten years for having consensual sex with a 15 year old girl when he was 17. The age of consent in GA is 16. Members of the jury stated that they felt he had done...
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### Author:  [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)
#### Post date: [January 31, 2007, 8:02pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/5 "2007-01-31T20:02:51Z")
There was a recent case somewhere in (I think) Saskatchewan in which the judge told the jury that aquittal was NOT an option; they had only to determine what degree of murder was involved. It is expected that this instruction will lead to a successful appeal. If it is reversed, this would amount to a recognition of nullification.
On the facts I have heard, however, I would not have acquitted him. He murdered his daughter’s boyfriend because he was feeding his daughter’s drug habit. She testified that her father saved her life. I don’t buy that murder was the only solution.
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [January 31, 2007, 8:22pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/6 "2007-01-31T20:22:32Z")
This looks like the case: [http://www.canada.com/nationalpost/news/story.html?id=9b05d140-b29c-470e-a740-c63b24a5de34&k=71995](http://www.canada.com/nationalpost/news/story.html?id=9b05d140-b29c-470e-a740-c63b24a5de34&k=71995)
Under U.S. law, this amounts to directing a verdict of conviction, which is never permissible.
The alternative isn’t a recognition of nullification (“You can find the defendant not guilty, even though you believe he committed the crime”), but an instruction on the elements of the crime and the burden of proof (“In order to convict, you must find that the prosecution has established the following elements beyond a reasonable doubt”).
I’ve got no idea how it works in Saskatchewan, but this is suggestive: “He cited a unanimous Supreme Court decision from last October where the high court ruled a judge can’t take away a jury’s ability to acquit.”
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### Author:  [@Bookkeeper](https://boards.straightdope.com/u/Bookkeeper)
#### Post date: [January 31, 2007, 8:22pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/7 "2007-01-31T20:22:43Z")
The Canadian legal stance is basically that jury nullification exists and is legal, but that the courts have no obligation to advise jurors of this and may take steps to ensure that they are not advised (such as forbiding mention by defence lawyers).
It’s covered in some detail in [_R. v. Latimer_](http://scc.lexum.umontreal.ca/scc-eliisa/highlight?language=en&path=http://scc.lexum.umontreal.ca/en/2001/2001scc1/2001scc1.html&query=%2Bjury+%2Bnullification), for any interested legal types.
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### Author:  [@Gfactor](https://boards.straightdope.com/u/Gfactor)
#### Post date: [January 31, 2007, 8:45pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/8 "2007-01-31T20:45:31Z")
[QUOTE=Bookkeeper]
The Canadian legal stance is basically that jury nullification exists and is legal, but that the courts have no obligation to advise jurors of this and may take steps to ensure that they are not advised (such as forbiding mention by defence lawyers).
[/QUOTE]
Similar to U.S. law, then.
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### Author:  [@Impounded](https://boards.straightdope.com/u/Impounded)
#### Post date: [January 31, 2007, 9:17pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/9 "2007-01-31T21:17:30Z")
I have heard about Judged removing jury memembers for failing to negotiate. Recently I heard that one juror said that she believed him not guilty and it was a gut feeling and no matter what the others said, she wouldn’t vote guilty. The judge then removed her and replace her with an alternate juror who voted guilty. Now the whole thing is being appealed.
It will be interesting, as usually whenever judges remove a jury member it leaves open an appeal or mistrial.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [February 1, 2007, 10:18pm UTC](https://boards.straightdope.com/t/jury-nullification/390245/10 "2007-02-01T22:18:07Z")
Here’s the SCC case cited in the news article: [R. v. Krieger, 2006 SCC 47](http://scc.lexum.umontreal.ca/en/2006/2006scc47/2006scc47.html).
The leading statement on jury nullifcation from the Supreme Court of Canada came in [R. v. Morgentaler, [1988] 1 S.C.R. 30](http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html). The accuseds were doctors who had performed abortions, contrary to the provision of the _Criminal Code_ in force at the time. At trial, their lawyer urged the jury to acquit because they disapproved of the law governing abortion.
Chief Justice Dickson spoke for the Court, unanimous on this point (at pp. 76-79):
> [@](#):
>
> **VI Defence Counsel’s Address to the Jury**
>
> In his concluding remarks to the jury at the trial of the appellants, defence counsel asserted:
>
> The judge will tell you what the law is. He will tell you about the ingredients of the offence, what the Crown has to prove, what the defences may be or may not be, and you must take the law from him. But I submit to you that it is up to you and you alone to apply the law to this evidence and you have a right to say it shouldn’t be applied.
>
> The burden of his argument was that the jury should not apply s. 251 if they thought that it was a bad law, and that, in refusing to apply the law, they could send a signal to Parliament that the law should be changed. Although my disposition of the appeal makes it unnecessary, strictly speaking, to review Mr. Manning’s argument before the jury, I find the argument so troubling that I feel compelled to comment.
>
> It has long been settled in Anglo-Canadian criminal law that in a trial before judge and jury, the judge’s role is to state the law and the jury’s role is to apply that law to the facts of the case. In Joshua v. The Queen, [1955] A.C. 121 (P.C.), at p. 130, Lord Oaksey enunciated the principle succinctly:
>
> It is a general principle of British law that on a trial by jury it is for the judge to direct the jury on the law and in so far as he thinks necessary on the facts, but the jury, whilst they must take the law from the judge, are the sole judges on the facts.
>
> The jury is one of the great protectors of the citizen because it is composed of twelve persons who collectively express the common sense of the community. But the jury members are not expert in the law, and for that reason they must be guided by the judge on questions of law.
>
> The contrary principle contended for by Mr. Manning, that a jury may be encouraged to ignore a law it does not like, could lead to gross inequities. One accused could be convicted by a jury who supported the existing law, while another person indicted for the same offence could be acquitted by a jury who, with reformist zeal, wished to express disapproval of the same law. Moreover, a jury could decide that although the law pointed to a conviction, the jury would simply refuse to apply the law to an accused for whom it had sympathy. Alternatively, a jury who feels antipathy towards an accused might convict despite a law which points to acquittal. To give a harsh but I think telling example, a jury fueled by the passions of racism could be told that they need not apply the law against murder to a white man who had killed a black man. Such a possibility need only be stated to reveal the potentially frightening implications of Mr. Manning’s assertions. The dangerous argument that a jury may be encouraged to disregard the law was castigated as long ago as 1784 by Lord Mansfield in a criminal libel case, R. v. Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824:
>
> So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.
>
> To be free is to live under a government by law . . . . Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.
>
> ```
> ...
>
> ```
>
> In opposition to this, what is contended for? – That the law shall be, in every particular cause, what any twelve men, who shall happen to be the jury, shall be inclined to think; liable to no review, and subject to no control, under all the prejudices of the popular cry of the day, and under all the bias of interest in this town, where thousands, more or less, are concerned in the publication of newspapers, paragraphs, and pamphlets. Under such an administration of law, no man could tell, no counsel could advise, whether a paper was or was not punishable.
>
> I can only add my support to that eloquent statement of principle.
>
> It is no doubt true that juries have a _de facto_ power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, “the citizen’s ultimate protection against oppressive laws and the oppressive enforcement of the law” (Law Reform Commission of Canada, Working Paper 27, The Jury in Criminal Trials (1980)). But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so. The difference between accepting the reality of de facto discretion in applying the law and elevating such discretion to the level of a right was stated clearly by the United States Court of Appeals, District of Columbia Circuit, in United States v. Dougherty, 473 F.2d 1113 (1972), per Leventhal J., at p. 1134:
>
> The jury system has worked out reasonably well overall, providing “play in the joints” that imparts flexibility and avoid[s] undue rigidity. An equilibrium has evolved – an often marvelous balance – with the jury acting as a “safety valve” for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law.
>
> To accept Mr. Manning’s argument that defence counsel should be able to encourage juries to ignore the law would be to disturb the “marvelous balance” of our system of criminal trials before a judge and jury. Such a disturbance would be irresponsible. I agree with the trial judge and with the Court of Appeal that Mr. Manning was quite simply wrong to say to the jury that if they did not like the law they need not enforce it. He should not have done so.