# Jury nullification **URL:** \ **Category:** Factual Questions\ **Created:** [November 20, 2008, 12:24am UTC](https://boards.straightdope.com/t/jury-nullification/473560 "2008-11-20T00:24:22Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [November 20, 2008, 12:24am UTC](https://boards.straightdope.com/t/jury-nullification/473560/1 "2008-11-20T00:24:22Z")
I’ve read articles on the net and even asked a lawyer friend of mine about the legality of the practice known as jury nullification, but it seems nobody agrees with anyone else about its use. Is it legal for juries to ignore the law and substitute their own judgement? Can the judge override the jury’s decision if it was known that the jury members used jury nullification to ignore a law? Would mentioning that you know about jury nullification immediately disqualify you as a juror or is it a practice that lawyers and judges frown on but tolerate? If its legal, aren’t judges required to let a potential juror know about it? ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [November 20, 2008, 12:35am UTC](https://boards.straightdope.com/t/jury-nullification/473560/2 "2008-11-20T00:35:21Z")
The jury can find whatever they want. They are the finder of fact. The only way a judge can mess with a jury’s finding is if a jury finds someone guilty and the judge makes a judgment of acquittal notwithstanding the verdict, and that generally only happens if a jury comes back with an inconsistent verdict that indicates confusion on their part (such as a finding of not guilty on a lesser included offense but guilty on the greater offense). If the jury acquits someone, the judge can’t turn around and declare him guilty. If it’s a loser case or a relatively minor offense that has otherwise airtight proof against the defendant, the defense attorney might make a plea to the jury’s common sense or morals in the closing. For example, during Vietnam there were many prosecutions of people who were witnessed burning their draft cards. Even with eyewitness testimony, many offenders were acquitted by sympathetic juries. If a juror indicated during _voir dire_ that he was familiar with jury nullification, that might be enough for the prosecutor to decide to strike him. Prosecutors always try to convince the jury that their job is to simply apply the law in a mechanical fashion, but the jury represents the community at large. If the community feels a particular law is being applied unfairly to it, the jury is well within its rights to reject prosecutions based on that law by acquitting those charged with violating it. That might be the best way of getting the legislature’s attention. ---
**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:** [November 20, 2008, 1:03am UTC](https://boards.straightdope.com/t/jury-nullification/473560/3 "2008-11-20T01:03:40Z")
> [@YogSosoth](#): > > Is it legal for juries to ignore the law and substitute their own judgement? Can the judge override the jury’s decision if it was known that the jury members used jury nullification to ignore a law? Would mentioning that you know about jury nullification immediately disqualify you as a juror or is it a practice that lawyers and judges frown on but tolerate? If its legal, aren’t judges required to let a potential juror know about it? For crimes with no mandatory minimum sentence judges can effectively set aside the jury’s ruling by sentencing the defendant to time served or suspending a sentence. ---
**Author:** ![Roadfood](https://avatars.discourse-cdn.com/v4/letter/r/9fc348/32.png) [@Roadfood](https://boards.straightdope.com/u/Roadfood)\ **Post date:** [November 20, 2008, 1:14am UTC](https://boards.straightdope.com/t/jury-nullification/473560/4 "2008-11-20T01:14:47Z")
I did a fair amount of reading (books and online) about this a few years ago. Your statement that “nobody agrees with anyone else about its use” is more accurately rephrased “nobody agrees with anyone else about it”. Is Jury Nullification legal? Depends on who you ask and what definition of “legal” is applied. There certainly is no specific statute anywhere that expressly allows it or forbids it. Some court decisions (one appeals court decision in particular that I don’t have a cite for) can be interpreted by some as indicating that it’s not legal, but by others as completely ambiguous on the subject. Even if a decision came down that unambiguously made it illegal, there is general agreement that it would be unenforceable. If the jury says “not guilty”, that’s it; as **MOIDALIZE** said, the judge can’t reverse that decision, even if he suspects or outright knows that the decision was a case of nullification. It would be possible, I suppose, to change the US laws about juries to make it a punishable crime to invoke nullification, but the only way to make that enforceable would be to monitor the jury room (otherwise, if asked, the jurors can always deny using nullification and just say they didn’t find the prosecutor’s case convincing). And I think there are enough in the US legal system who still have a high enough regard for the sanctity of jury deliberations that that is unlikely in the extreme to ever happen. If you make it known during voir dire that you know about jury nullification, will you be dismissed? Probably, but it really depends on what the attorneys on both sides, and the judge, actually think about jury nullification; Most lawyers and judges think it’s a bad thing, but not all. Most think that it’s a travesty for a juror to even know the term, but some think it should be required to inform jurors of its existence and proper application. So I believe that jury nullification is doomed to remain in limbo for the foreseeable future. It’s not illegal but it’s not specifically legal, either; it can be used basically with impunity but most lawyers and judges would prefer that jurors not even know that they have that power. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 20, 2008, 2:35am UTC](https://boards.straightdope.com/t/jury-nullification/473560/5 "2008-11-20T02:35:32Z")
There’s a point being missed here. Everybody knows the “innocent until proven guilty” line, but the full line is"presumed innocent until proven guilty." And that’s not a semantic nitpick. As a matter of his status, the defndant, while he has been accused of and perhaps indicted for a crime, is legally innocent until the moment the foreman announces, “We find the defendant guilty.” It’s not the defense’s job to prove their client innocent; it’s the prosecution’s job to prove him guilty. If they don’t prove his guilt of the crime charged beyond reasonable doubt, the jury’s duty is to acquit. That string of adverbs “…maliciously and feloniously” in the charge is there for a reason. If the jury believes he did not commit the criminal act, they are to acquit him – but notice also that if they believe he did X but X does not constitute the crime charged, they are also entitled to acquit him. For all practical purposes, in real situations “jury nullification” comes down to, “Yeah, this guy apparently did something, but in the circumstances we can’t call it the crime he was charged with.” Although it’s said that the judge is the judge of the law and the jury the judge of the facts, in actual situations it’s necessary for the jury to determine if the accused was proven beyond reasonable doubt to have committed _the crime charged_. And “the crime” does not equal a specific act, but that act plus intent plus the jury’s decision that that act constitutes the crime defined in the charge. Joe shoots and kills Harry. Murder? Voluntary manslaughter? Involuntary manslaughter? Homicide by negligence? Self-defense? Temporary insanity? Etc., etc. Only the jury has the right to decide. And in the course of their decision, they may find they agree on the facts – but they also agree that the facts do not rise to being proof he committed the definition of the crime he’s charged with. How does that apply to nullification? Because a jury cannot be legally second-guessed. They and only they are the ones with the authority to decide his guilt for the crime charged. And in most cases a state of mind is a component element of the charge. > [@Really\_Not\_All\_That\_Bright](#): > > For crimes with no mandatory minimum sentence judges can effectively set aside the jury’s ruling by sentencing the defendant to time served or suspending a sentence. Not quite. Unless it’s a case where the jury decides on a sentence (capital trials, mostly), it’s the judge’s job to set the proper sentence. If a jury finds the defendant guilty, he’s guilty, then and forevermore. His sentence may consist of time served or a suspended sentence, yeah, but that’s still a sentence, the penalty he has to pay for doing the crime. If someone is accused of a crime with a maximum sentence of six months (180 days), less 40 days off for good behavior, and he’s not brought to trial for four months, during which he sits in jail, has a three day trial and is convicted, the most additional time he can serve is 17 more days, and that’s if the judge imposes the maximum sentence. There’s little point in doing so unless he’s a repeat offender – “time served” is already 123 days in jail out of a possible 140. And suspending a sentence on condition of restitution and good behavior is often an effective deterrent – this guy knows that he has a year in jail hanging over him if he screws up, and the victims get their restitution from him working and paying them (through the court or probation office). The point is, “time served” and “one year in jail, suspended” are sentences imposed on guilty people. And the guy sentenced to them always has that conviction on his record. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [November 20, 2008, 2:35am UTC](https://boards.straightdope.com/t/jury-nullification/473560/6 "2008-11-20T02:35:39Z")
What **Roadfood** said. It’s more accurate to say “it’s illegal for the judge, the prosecution or the state to overturn a jury verdict of Not Guilty”. It’s not that juries have a legal right to nullify so much as there’s no de jure or de facto way of stopping them. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [November 20, 2008, 3:32am UTC](https://boards.straightdope.com/t/jury-nullification/473560/7 "2008-11-20T03:32:43Z")
Isn’t that the reason why the try people on so many counts? This way if they get off on one charge it’s possible the jury will convict of a lesser charge ---
**Author:** ![alphaboi867](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alphaboi867/32/3898_2.png) [@alphaboi867](https://boards.straightdope.com/u/alphaboi867)\ **Post date:** [November 20, 2008, 3:45am UTC](https://boards.straightdope.com/t/jury-nullification/473560/8 "2008-11-20T03:45:56Z")
Does jury nullification exist in other common law countries (England, Canada, Australia, etc) where the prosecution is allowed to appeal an acquittal? ---
**Author:** ![Eggerhaus](https://avatars.discourse-cdn.com/v4/letter/e/d2c977/32.png) [@Eggerhaus](https://boards.straightdope.com/u/Eggerhaus)\ **Post date:** [November 20, 2008, 8:26am UTC](https://boards.straightdope.com/t/jury-nullification/473560/9 "2008-11-20T08:26:01Z")
See: [http://www.fija.org/](http://www.fija.org/) Fully Informed Jury Association Nullification is the powerful right juries have. Sadly, mosy judges and lawyers are appaled by the idea. Want to get out of jury duty fast? During selection ask the judge: “Does following your instructions to the jury include our right to jury nullification?” You’ll be out the door in a New York munite. ---
**Author:** ![Cyberhwk](https://avatars.discourse-cdn.com/v4/letter/c/7993a0/32.png) [@Cyberhwk](https://boards.straightdope.com/u/Cyberhwk)\ **Post date:** [November 20, 2008, 9:46am UTC](https://boards.straightdope.com/t/jury-nullification/473560/10 "2008-11-20T09:46:41Z")
Is there a way to deal with a juror intent on nullifying? I’ve heard more than a couple people mention they’d be willing to use jury nullification to protest a law they disagree with. I’ve only been called as a juror once (wasn’t chosen) but how would one deal with this 11-1 situation? ---
**Author:** ![mks57](https://avatars.discourse-cdn.com/v4/letter/m/b9bd4f/32.png) [@mks57](https://boards.straightdope.com/u/mks57)\ **Post date:** [November 20, 2008, 10:48am UTC](https://boards.straightdope.com/t/jury-nullification/473560/11 "2008-11-20T10:48:29Z")
From the Maryland Constitution’s Declaration of Rights: Art. 23. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 20, 2008, 12:21pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/12 "2008-11-20T12:21:18Z")
I’ve always thought that the whole reason to have jury trials was to allow for nullification. It was one more check against the power of government. For example, if a government begins to become tyrannical and punish people for trivial offenses, you still have a jury of your peers there at the ready to let you go. I can’t see any other purpose for juries if not for that. I’m sure that a judge is perfectly capable of deciding innocence or guilt. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 20, 2008, 3:47pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/13 "2008-11-20T15:47:10Z")
> [@Polycarp](#): > > There’s a point being missed here. Everybody knows the “innocent until proven guilty” line, but the full line is"presumed innocent until proven guilty." And that’s not a semantic nitpick. As a matter of his status, the defndant, while he has been accused of and perhaps indicted for a crime, is legally innocent until the moment the foreman announces, “We find the defendant guilty.” It’s not the defense’s job to prove their client innocent; it’s the prosecution’s job to prove him guilty. If they don’t prove his guilt of the crime charged beyond reasonable doubt, the jury’s duty is to acquit. That string of adverbs “…maliciously and feloniously” in the charge is there for a reason. If the jury believes he did not commit the criminal act, they are to acquit him – but notice also that if they believe he did X but X does not constitute the crime charged, they are also entitled to acquit him. For all practical purposes, in real situations “jury nullification” comes down to, “Yeah, this guy apparently did something, but in the circumstances we can’t call it the crime he was charged with.” Although it’s said that the judge is the judge of the law and the jury the judge of the facts, in actual situations it’s necessary for the jury to determine if the accused was proven beyond reasonable doubt to have committed _the crime charged_. And “the crime” does not equal a specific act, but that act plus intent plus the jury’s decision that that act constitutes the crime defined in the charge. > > Joe shoots and kills Harry. Murder? Voluntary manslaughter? Involuntary manslaughter? Homicide by negligence? Self-defense? Temporary insanity? Etc., etc. Only the jury has the right to decide. And in the course of their decision, they may find they agree on the facts – but they also agree that the facts do not rise to being proof he committed the definition of the crime he’s charged with. > > How does that apply to nullification? Because a jury cannot be legally second-guessed. They and only they are the ones with the authority to decide his guilt for the crime charged. And in most cases a state of mind is a component element of the charge. Just to clarify: If the jury votes “not guilty” because it decided that the defendant committed the act but lacked the required level of intent, that’s not nullification; that’s simply acquittal. The defendant’s intent is an element of the crime and a question of fact. Nullification occurs when the jury finds that the defendant committed the act with the proper intent, but votes “not guilty” anyway, for some other reason. As a practical matter, however, there’s no way under US law to distinguish one “not guilty” from another. We can’t weed out the nullifications from the acquitaals, and that’s why juries have the power to nullify. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 20, 2008, 3:59pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/14 "2008-11-20T15:59:19Z")
The more practical questions involve things like: “Can the defense argue nullification to the jury?” That is, may a defense lawyer say to the jury: You’ve heard the evidence today. And I’m not going to lie to you – it’s pretty convincing. You may find that the evidence indicates my client did possess the seven ounces of marijuana that the prosecution claims he did. But does the law against marijuana really make sense? Do you want to give a young man a felony record just because he had some pot? Regardless of whether he did or didn’t do it, this law is crazy, and for that reason alone I ask you to find him not guilty. Whether an argument like that should be permitted is the real question surrounding nullification. As observed above, there’s no question juries can nullify; they have the power even if they don’t have the legal authority. But we can permit, or prevent, arguments like the one I offer above. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 20, 2008, 4:21pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/15 "2008-11-20T16:21:25Z")
> [@alphaboi867](#): > > Does jury nullification exist in other common law countries (England, Canada, Australia, etc) where the prosecution is allowed to appeal an acquittal? No. The clearest statement on this point for Canada is the reasons of Chief Justice Dickson in [R.v. Morgentaler, [1988] 1 S.C.R. 30](http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html). 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. ---
**Author:** ![42fish](https://avatars.discourse-cdn.com/v4/letter/4/b487fb/32.png) [@42fish](https://boards.straightdope.com/u/42fish)\ **Post date:** [November 20, 2008, 4:40pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/16 "2008-11-20T16:40:18Z")
> [@Cyberhwk](#): > > Is there a way to deal with a juror intent on nullifying? I’ve heard more than a couple people mention they’d be willing to use jury nullification to protest a law they disagree with. I’ve only been called as a juror once (wasn’t chosen) but how would one deal with this 11-1 situation? Presumably one of the following: 1. The eleven eventually convince the one to give it up and join them b) The eleven eventually get tired of trying to convince the one and vote ‘not guilty’ just to get out of the deliberation room III) The jury reports to the judge that they’re hopelessly deadlocked\*, a mistrial gets declared, and a new trial with twelve new jurors is held\*\* \*The judge could, at least initially, say the equivalent of 'You haven’t been deliberating this long enough to declare a hung jury" and send everyone back to the jury room \*\*Or the prosecutors could drop the charges of course ---
**Author:** ![MikeS](https://avatars.discourse-cdn.com/v4/letter/m/919ad9/32.png) [@MikeS](https://boards.straightdope.com/u/MikeS)\ **Post date:** [November 20, 2008, 5:17pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/17 "2008-11-20T17:17:05Z")
> [@Northern\_Piper](#): > > No. > > The clearest statement on this point for Canada is the reasons of Chief Justice Dickson in [R.v. Morgentaler, [1988] 1 S.C.R. 30](http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html). Fascinating — I had no idea that Morgentaler’s lawyers had argued for nullification. (For the non-Canadians, the R. v. Morgentaler cases — there are two of them — are the Supreme Court cases that legalized abortion in Canada.) Thanks for this. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [November 20, 2008, 5:48pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/18 "2008-11-20T17:48:10Z")
> [@Bricker](#): > > Whether an argument like that should be permitted is the real question surrounding nullification. As observed above, there’s no question juries can nullify; they have the power even if they don’t have the legal authority. But we can permit, or prevent, arguments like the one I offer above. I agree the attorney should not be allowed to argue “it’s a stupid law”. However, I think juries should be aware that they can nullify. Ultimately I see it as a check on government power. If the community thinks someone is being unfairly or unduly penalized they should be able to nullify the case. Hypothetical: Take Connecticut’s Statutory Rape law (from [here](http://www.cga.ct.gov/2003/olrdata/jud/rpt/2003-R-0376.htm)): “Second-degree sexual assault to have sexual intercourse with a person between ages 13 and 16 if the actor is more than two years older” Penalty for conviction: “10 to 25 years in prison with a mandatory minimum of five years if the victim is between age 10 and 16” So, let’s say a 21 year old guy is in a bar and picks up a woman there and goes home and has sex with her. Turns out she was 1 week shy of her 17th birthday (or 16th if “between” is not inclusive of 16). In court she testifies that she used a fake ID to get in the bar, lied to the man about her age, actively seduced the guy with the intent to have sex with him, she is fully formed in a “woman” (not young girl) way so no obvious clue she is young and engaged in fully consensual sex as far as she is concerned and has no regret whatsoever of her actions (barring the poor schlub ending up in court over it). Assume those details of the issues are not in any doubt. Did the guy still commit Second-degree sexual assault? As defined by the law sure looks like it and for whatever reason the DA saw fit to prosecute (maybe she was the daughter of someone he owed a political favor to). Would you put that guy away for a _minimum_ of 5 years and saddle him with a sexual assault felony for life? I think it entirely appropriate for a jury in this case to say that is obnoxious. Since they are only given the choice of guilty or not guilty and there is such a harsh result to a guilty verdict as a juror I could not in good conscience find him guilty even if technically he committed the crime. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 20, 2008, 5:49pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/19 "2008-11-20T17:49:09Z")
You’re welcome. But I wouldn’t say that Morgentaler legalised abortion in Canada - abortion was legal prior to the 1988 decision, but only under certain restrictions. The 1988 decision removed all remaining restrictions. Also, there are four Morgentaler decisions: [Morgentaler v. The Queen, [1976] 1 S.C.R. 616](http://scc.lexum.umontreal.ca/en/1975/1976rcs1-616/1976rcs1-616.html) - upheld the constitutionality of the federal abortion law under the criminal law power, set out in the _Constitution Act, 1867_, s. 91(27); [R. v. Morgentaler, [1988] 1 S.C.R. 30](http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html) - held that the federal abortion law was contrary to s. 7 of the _Canadian Charter of Rights and Freedoms_ and was therefore inoperative; [R. v. Morgentaler, [1993] 1 S.C.R. 462](http://scc.lexum.umontreal.ca/en/1993/1993rcs1-462/1993rcs1-462.html) - held that interveners in an appeal in the Supreme Court cannot raise totally new issues, not raised by the parties to the appeal; [R. v Morgentaler, [1993] 3 S.C.R. 463](http://scc.lexum.umontreal.ca/en/1993/1993rcs3-463/1993rcs3-463.html) - held that a province could not restrict access to abortion by removing abortion funding from the provincial medicare plan. ---
**Author:** ![Hypnagogic\_Jerk](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hypnagogic_jerk/32/4252_2.png) [@Hypnagogic\_Jerk](https://boards.straightdope.com/u/Hypnagogic_Jerk)\ **Post date:** [November 20, 2008, 5:49pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/20 "2008-11-20T17:49:45Z")
> [@Northern\_Piper](#): > > No. > > The clearest statement on this point for Canada is the reasons of Chief Justice Dickson in [R.v. Morgentaler, [1988] 1 S.C.R. 30](http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html). Chief Justice Dickson spoke for the Court, unanimous on this point (at pp. 76-79): It seems to me this says defence counsel may not suggest the jury nullify the law, but the jury can still use this power by itself. So jury nullification _does_ exist in Canada. [Next page](https://boards.straightdope.com/t/jury-nullification/473560.md?page=2)