# 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:** 2
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [November 20, 2008, 5:59pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/21 "2008-11-20T17:59:36Z")
> [@Whack-a-Mole](#): > > 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. So the lawyer cannot urge the trier of fact to do something the trier of fact has every right to do? Makes sense. Back when this country was founded, juries decided the law and the facts. Citizens decided every dispute where one of the parties wanted it. Now disputes are decided by judges, except for the facts. No arguing that a law is unjust. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [November 20, 2008, 6:10pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/22 "2008-11-20T18:10:45Z")
My impression has always been that it’s not so much legal as it is a logical consequence of the prohibition against double jeopardy. Since the prosecution cannot appeal a not-guilty verdict and jurors are not required to explain their reasoning, there’s nothing to prevent them from saying “Screw the law. I like Skaldimus, and he was probably justified in beating his brother to death with that tire iron.” ---
**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, 6:13pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/23 "2008-11-20T18:13:20Z")
> [@The\_Second\_Stone](#): > > So the lawyer cannot urge the trier of fact to do something the trier of fact has every right to do? Makes sense. Back when this country was founded, juries decided the law and the facts. Citizens decided every dispute where one of the parties wanted it. Now disputes are decided by judges, except for the facts. No arguing that a law is unjust. I’m not sure you want to make court rooms the place to debate whether a law is right or wrong. The defense should argue the facts of the case and leave politics out of it. As long as a jury knows it can nullify I think it is up to them to decide on their own if such a course is justified. ---
**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, 6:48pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/24 "2008-11-20T18:48:09Z")
> [@Whack-a-Mole](#): > > 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. The problem with this is that juries aren’t told what possible penalties are when they are deliberating. They would probably look at the facts of your case, and say, “Well, the guy really should have been more careful” and find him guilty thinking he’ll have to pay a hundred dollar fine or something. Only when they read the paper the next day will they find out he got five years. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [November 20, 2008, 6:59pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/25 "2008-11-20T18:59:30Z")
> [@Bricker](#): > > 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. Right, exactly what I have heard. The Jury itself can Nullify it it wants to, but _can the Defense suggest_ it is another can of fish. ---
**Author:** ![Bookkeeper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bookkeeper/32/281_2.png) [@Bookkeeper](https://boards.straightdope.com/u/Bookkeeper)\ **Post date:** [November 20, 2008, 7:19pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/26 "2008-11-20T19:19:23Z")
While I hesitate to set my layman’s ignorance against **Norther Piper’s** demonstrated legal expertise, I should point out that in both the 1973 and 1988 Morgentaler abortion cases (the 1993 case was a dispute over whether he could open a clinic) the jury did initially use jury nullification to find him not guilty where he was clearly violating the law (and openly admitted it). While the Crown was able to appeal (and eventually lost both cases anyway), in at least the 1988 case I don’t believe the appeal was based on the verdict so much as the legality of arguments used by the defence lawyers which openly raised the possibility of nullification to the jury. IIRC from reading about the cases at the time, there was considerable emphasis in the news on the juries in both cases using the Not Guilty verdict to express their disagreement with the abortion laws. I believe that the Crown, partially as a consequence of the 1973 case, can no longer appeal a not-guilty verdict in Canada. Is this correct, and if so what was changed to prohibit 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, 7:29pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/27 "2008-11-20T19:29:00Z")
> [@jtgain](#): > > The problem with this is that juries aren’t told what possible penalties are when they are deliberating. They would probably look at the facts of your case, and say, “Well, the guy really should have been more careful” and find him guilty thinking he’ll have to pay a hundred dollar fine or something. > > Only when they read the paper the next day will they find out he got five years. Ahh…well that sucks. I am sure a clever attorney could work it in unless they are explicitly barred from making mention of the penalties to the jury. Something in their closing argument like: “Ladies and gentleman of the jury. Make no mistake that this is a serious issue we have before us. It is vital you understand the gravity of the decision that faces you. This is a felony that, if convicted, will follow my client for the rest of his life and deprive him of, at a _minimum_, five years of his life in jail and maybe as much as 25 years. Blah, blah, blah…” Or something to that effect anyway (reading it I am thinking it is a good thing I do not write closing statements ;)). ---
**Author:** ![gurujulp](https://avatars.discourse-cdn.com/v4/letter/g/ba9def/32.png) [@gurujulp](https://boards.straightdope.com/u/gurujulp)\ **Post date:** [November 20, 2008, 7:36pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/28 "2008-11-20T19:36:40Z")
The only time I ever entered jury selection was for a traffic court violation in Houston, TX, and the defense lawyer specifically told us that if we disagreed with the law he was being charged with, whether we thought he was guilty of violating it or not, we could and should vote not guilty. He then asked people if they understood that or agreed with that, and struck people who disagreed. I did not get selected as they filled the jury and alternates before they got to me, but I was shocked when I later heard that people in other jury selections were struck _because_ they knew about this. ---
**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, 7:39pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/29 "2008-11-20T19:39:22Z")
> [@jtgain](#): > > The problem with this is that juries aren’t told what possible penalties are when they are deliberating. They would probably look at the facts of your case, and say, “Well, the guy really should have been more careful” and find him guilty thinking he’ll have to pay a hundred dollar fine or something. > > Only when they read the paper the next day will they find out he got five years. I suspect that the temptation to nullify is one of the reasons why a jury is typically not informed of the likely sentencing range. ---
**Author:** ![Eklektik](https://avatars.discourse-cdn.com/v4/letter/e/8baadc/32.png) [@Eklektik](https://boards.straightdope.com/u/Eklektik)\ **Post date:** [November 20, 2008, 8:53pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/30 "2008-11-20T20:53:16Z")
About two years ago, I was called for Jury Duty. My mom, being the hardcore take-my-gun-from-my-dead-fingers Libertarian, gave me the rundown on the Fully Informed Juror’s Association. I was called to be one of the 6 extra jurors (I think I was #13 or #14). I was only 22 at the time, and had never done jury duty before, so I waited until a short recess was called and I met with the judge, D.A., and prosecutor in the back hall. I stated that I had read up on my rights as a juror, and I forewarned them that I would have to make my juror’s decision on the law as well as the person charged. The D.A. smiled, and the prosecutor got really angry at that. The judge informed me that he didn’t know what I was talking about. Since I really didn’t want to do jury duty, I just stated in a clear way that “All I’m saying is that if it is fully legal for me to judge the validity of the law, as well as the guilt of the charged party, I feel that I have a RESPONSIBILITY to do that”. Needless to say, after recess, they sent me home. =D ---
**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, 9:42pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/31 "2008-11-20T21:42:14Z")
I find the views of Chief Justice Dickson (post 15) to be absolutely reprehensible. He demonstrates the incredible hypocrisy that is rife in the current legal system. The last time I was called for jury duty, I listened while the judge said, among others things, that as a juror, we are the most important people in the legal process. Then we all got this list of questions that had been agreed upon by the judge and both attorneys that we had to answer. One was along the lines of, “Do you agree to follow the judge’s instructions, even if those instructions go against your personal conscience?” I answered honestly, “No”, I got lectured by the judge and dismissed. So the jurors are the most important people in the process – surely they unquestionably make the single most important decision – and yet they are required to put their own conscience aside when making that decision. > [@](#): > > 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. What the hell good is “the common sense of the community” if the jury is not allowed to actually use it? I would hope that most people’s common sense is inextricably tied to their conscience. And that while the jury members may not be expert in the law, they **are** , by virtue of that “common sense” that this judge holds in such high regard, experts in what’s **right** and just (yes, I know the “this is not a court of justice, it’s a court of law” quote; that’s another part of the problem). What ever happened to the idea of a jury of one’s peers? Now it’s instead a jury of sheep that will just believe what they’re told. ---
**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, 11:39pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/32 "2008-11-20T23:39:20Z")
> [@Roadfood](#): > > So the jurors are the most important people in the process – surely they unquestionably make the single most important decision – and yet they are required to put their own conscience aside when making that decision. > > What the hell good is “the common sense of the community” if the jury is not allowed to actually use it? I would hope that most people’s common sense is inextricably tied to their conscience. And that while the jury members may not be expert in the law, they **are** , by virtue of that “common sense” that this judge holds in such high regard, experts in what’s **right** and just (yes, I know the “this is not a court of justice, it’s a court of law” quote; that’s another part of the problem). > > What ever happened to the idea of a jury of one’s peers? Now it’s instead a jury of sheep that will just believe what they’re told. Well, the theory is that the community expresses its views on the law, which is meant to be generally applicable, via its elected representatives. It expresses its views on the facts, which are particular to one case, via the jury. When asking if you are willing to follow the court’s instructions, the judge is essentially asking whether you are willing to obey the law that your community has enacted. Your conscience may not permit you to do so, and that’s your right. But your community has opted to permit the court to exclude you from that part of its legal process in that event. It may be helpful to remember that the jury nullification can serve bad purposes as well as good ones. Historically, for instance, it was reputed to be a common occurrence for racist all-white juries to use nullification to acquit white defendants accused of crimes against minorities. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [November 21, 2008, 12:03am UTC](https://boards.straightdope.com/t/jury-nullification/473560/33 "2008-11-21T00:03:29Z")
> [@Tom\_Tildrum](#): > > It may be helpful to remember that the jury nullification can serve bad purposes as well as good ones. Historically, for instance, it was reputed to be a common occurrence for racist all-white juries to use nullification to acquit white defendants accused of crimes against minorities. I just wanted to highlight this. Jury nullification is a two edged sword. It all depends on who’s in the jury and who’s in the dock. ---
**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 21, 2008, 12:10am UTC](https://boards.straightdope.com/t/jury-nullification/473560/34 "2008-11-21T00:10:09Z")
> [@Tom\_Tildrum](#): > > …It may be helpful to remember that the jury nullification can serve bad purposes as well as good ones. Historically, for instance, it was reputed to be a common occurrence for racist all-white juries to use nullification to acquit white defendants accused of crimes against minorities. It was also used by nothern juries to prevent masters from reclaim their fugitive slaves. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [November 21, 2008, 12:27am UTC](https://boards.straightdope.com/t/jury-nullification/473560/35 "2008-11-21T00:27:04Z")
> [@Whack-a-Mole](#): > > I’m not sure you want to make court rooms the place to debate whether a law is right or wrong. The defense should argue the facts of the case and leave politics out of it. > > As long as a jury knows it can nullify I think it is up to them to decide on their own if such a course is justified. You are right. A court room is no place for litigants to argue whether laws are right or wrong. And certainly not around a committee of twelve impartial decidererers plucked by lot from the citizenry. My mistake. WTF could I have been thinking? Laws should be argued near curbsides by filthy homeless people for no apparent reason. ---
**Author:** ![gazpacho](https://avatars.discourse-cdn.com/v4/letter/g/6f9a4e/32.png) [@gazpacho](https://boards.straightdope.com/u/gazpacho)\ **Post date:** [November 21, 2008, 12:31am UTC](https://boards.straightdope.com/t/jury-nullification/473560/36 "2008-11-21T00:31:09Z")
I am with Roadfood on this. I certainly hope if I was on a jury I would have the courage to do what I felt was right and not what a figure of authority told me to do. ---
**Author:** ![Markxxx](https://avatars.discourse-cdn.com/v4/letter/m/5daacb/32.png) [@Markxxx](https://boards.straightdope.com/u/Markxxx)\ **Post date:** [November 21, 2008, 6:53am UTC](https://boards.straightdope.com/t/jury-nullification/473560/37 "2008-11-21T06:53:13Z")
I have heard of jurors being removed because they fail to discuss or negotiate correctly. So the judge removes them and replaces them with an alternate. If you had a few jurors trying to nullify then couldn’t they be removed if reported to the judge that they weren’t using good faith, or something like that? ---
**Author:** ![mks57](https://avatars.discourse-cdn.com/v4/letter/m/b9bd4f/32.png) [@mks57](https://boards.straightdope.com/u/mks57)\ **Post date:** [November 21, 2008, 6:57am UTC](https://boards.straightdope.com/t/jury-nullification/473560/38 "2008-11-21T06:57:46Z")
> [@Markxxx](#): > > I have heard of jurors being removed because they fail to discuss or negotiate correctly. So the judge removes them and replaces them with an alternate. > > If you had a few jurors trying to nullify then couldn’t they be removed if reported to the judge that they weren’t using good faith, or something like that? We would be in a very sad state of affairs if a juror could be removed for not being a “team player”. ---
**Author:** ![Asimovian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asimovian/32/172_2.png) [@Asimovian](https://boards.straightdope.com/u/Asimovian)\ **Post date:** [November 21, 2008, 2:01pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/39 "2008-11-21T14:01:57Z")
> [@Whack-a-Mole](#): > > I am sure a clever attorney could work it in unless they are explicitly barred from making mention of the penalties to the jury. I have heard tale of an attorney in a recent trial who slipped it in while examining a witness on the stand. Something to the effect of, “Mr. Smith, are you aware that if you hadn’t received immunity, you would have faced the same five years in prison that Mr. White [the defendant] faces now?” The attorney was mildly admonished by the judge later, outside of the presence of the jury. But he’d already accomplished what he wanted to accomplish. ---
**Author:** ![Mk\_VII](https://avatars.discourse-cdn.com/v4/letter/m/5f9b8f/32.png) [@Mk\_VII](https://boards.straightdope.com/u/Mk_VII)\ **Post date:** [November 21, 2008, 2:54pm UTC](https://boards.straightdope.com/t/jury-nullification/473560/40 "2008-11-21T14:54:02Z")
while jury nullification does happen here, e.g. _R. v Ponting_, it’s extremely unusual. We can have 10-2 majority verdicts here, which disposes of the stubborn juror who won’t change his mind. In his recent [1999] report on the reform of the criminal justice system [http://www.criminal-courts-review.org.uk/](http://www.criminal-courts-review.org.uk/) Lord Justice Auld recommended _“that it should be declared, by statute law if necessary, that the jury has no power to acquit in defiance of law and of the facts”._ No action has taken place on this, so far. [Previous page](https://boards.straightdope.com/t/jury-nullification/473560.md?page=1) [Next page](https://boards.straightdope.com/t/jury-nullification/473560.md?page=3)