A few years ago I was also curious about Jury Nullification and I ended up reading an excellent book on the topic: “Jury Nullification: The Evolution of a Doctrine” by Clay Conrad. It provides a thorough treatment of the subject and made me realize that, as citizens, we have a great deal more power in the jury box than we do at the ballot box. Anyone who wants an in-depth understanding of Jury Nullification should read Conrad’s book.
For what it’s worth, this appears to be a comment on Bricker’s Staff Report on jury nullification. (Marcus, it’s the board’s custom to link to what article you’re commenting on; since you weren’t aware of that, I filled it in for you.)
An excellent report by Bricker although I disagree with the concluding remarks. Up until Sparf and Hansen v US the doctrine was that juries had the right not only to determine the facts of a case but also whether justice would be served by applying the law in that case only. Sparf did not deny the right but only that failure to disclose the right was not grounds for a mistrial. Since a jury never has to explain its decision, no case law is generated and the next trial using that law starts afresh. If enough juries refuse to convict though, an obvious message is sent. One of the reasons Prohibition was repealed is because three-quarters of the trials involving simple bootlegging resulted in no conviction.
While preferable, that tactic is also a two-edged sword, as pro gay marriage folks are finding out. Either method can have results not to your liking.
As a libertarian, so long as there are sufficient people aware of their rights as jurors, I put more faith in the 6th amendment protecting me from a government riding roughshod than the 2nd. Nobody gets shot.
More can be found out at the Fully Informed Jury Association website.
No one is denying this is true in individual cases. The power of the jury box is, however, limited by the number of cases that come before the courts; the power of the ballot box knows no such limitation.
This ignores the real point of contention, however: Should that potential power be used at all? Does it serve justice when a jury can choose which laws get enforced, and when? The article does an admirable job of summarizing the evidence on both sides of the argument, contrasting nullification of fugitive slave laws prior to the Civil War with nullification of homicide and assault laws as they applied to white-on-black crime in the Jim Crow South.
Note that the latter instances of nullification had the precise opposite effect of what the nullifying juries wanted: Unable to get convictions in state courts, the Federal government charged the defendants with Federal crimes (namely, that they violated their victims’ civil rights) and effectively overrode state control. Thus, jury nullification lead to a consolidation of power, instead of a democratization of it. This consolidation served justice, but it is instructive to keep the general historical precedent in mind.
It is, however, difficult to see the Tyranny of the Majority work its foul will in the cases of nonviolent drug offenders who get sent to prison. The sympathetic mind wishes for nullification to fix at least the immediate problem, but the pragmatic mind knows that changing the law is the only real solution.
An important principle of any legal system is predictability. This is where precedent derives from, at least in the Anglo-Saxon Common Law system, and it is one reason the law is as complex as it invariably is. (How can you tell if a legal system is complex? If it has seen real usage.) Only those trained in the law can hope to master the many fine details we rely upon to make the law apply as predictably as possible to everyone. Without legal predictability, it would be effectively impossible to conduct yourself in public without having to be afraid of others. Jury nullification is a grave enemy of legal predictability.
On the other hand, though, the law is an ass. It is applied broadly, even granted the wide umbrella of prosecutorial discretion, and it is applied in cases where, through legislative negligence, it does not have the proper exceptions and allowances for real-world behavior. A distressing example is the legal insanity over sexting, where high school kids are getting into serious legal trouble for sending nudie pics to each other. How can a good, moral jury convict a 16-year-old of a sex crime for sending pictures of herself to her boyfriend? Changing the law is the real solution, but the individual case deserves due consideration as well.
So that is probably enough to get this kicked down into Great Debates. 
I fully expect to be torn apart by the real legal minds because I obviously cannot make up my own mind on this issue.
The Jury Nullification Movement makes me queazy because it is really not a well thought out theory. Juries decide one case at a time. For a true nullification, jury after jury would have to toss out particular cases. But, in order for that to happen, the population in general would have to feel that a law is wrong. For jury nullification to really work, you would have to have political campaigns to influence juries, and affecting the legal system like that is simply not right.
If you have the ability to run such a campaign, why not run such a campaign for political offices? Get your issue out to the various voters, get candidates to support your position.
I get the feeling that many people who support the jury nullification movement have positions that they think are really popular, but are not. Most of the people who support jury nullification are anti-tax or anti-drug laws.
I would argue that the current law doesn’t allow for prosecuting a sixteen year old for sending a nude picture of herself to her sixteen year old boyfriend. It might support prosecuting the boy friend if the boyfriend was a 32 year old man who was selling the pictures on a kiddie porno site. But prosecuting the sender sending a picture to a willing recipient is not what the law is suppose to be doing.
Then again, you’re talking about adults on the jury who simply don’t want to believe their sixteen year old kids are actually thinking about sex. They’re shocked! shocked! that this behavior goes on! Why when they were sixteen years old, they never did such a thing. Okay, they did take a naked polaroid picture of themselves, and put it inside their boy friend’s locker, but that was different. Besides, they only did it once. Plus, they were young kids and didn’t know any better. But, as responsible adults, they can’t allow such shenanigans to stand.
Unfortunately, at present, it does. There have been real cases.
True. Also, unfortunately, many prosecutors are motivated as much by headlines and career options more than by desire for justice.
the prime example of jury nullification is the cases of Dr. Henry Morgentaler in Quebec and the rest of Canada. He set out to provide a service - clean, safe, proper abortions in violation of Canada’s criminal code. The prudish catholic heirarchy of the Quebec government set out to convict him. In one case, they threatened a foreign student that they would tell ehr family in Africa what happened (in the 1970’s) if she did not testify. This was the lengths they had to go to to get testimony against him.
He was acquitted by a jury. In Canadian precendent(but not written law), jury acquittals would stand. the Quebec appeals court chose to substitute a conviction. The Canadian Justice Minister (a catholic) offered a bet to a reprorter that such a reversal of a jury acquittal would never again happen in his lifetime. Not sure if the reporter took the bet, but it happened 18 months later after Morgentaler’s second jury acquittal was also reversed. Morgentaler was acquitted a third time by a jury, a Jewish doctor in predominantly catholic Quebec, before the Canadian Supreme Court stepped in and said that in the cases of jury acquittals, the appeals court could order a new trial in the case of problems, but could not reverse a jury.
Not long after the provincial government of Quebec was tossed out by a more progressive (but separatist) government; the prosecutions stopped. While Morgentaler pushed his luck and was eventually convicted elsewhere in the country, the government has made jury decisions binding like the USA. The law against abortions eventually was repealed in a Candian Roe-v-Wade type decision. When neither side on the abortion debate was willing to compromise, there is now in Canada no law about abortion, it is a medical choice right of every woman, and therefore must be paid for by our social medicine.
Of course, if the government had prevailed against jury nullification, even if the prosecutions had stopped, Morgentaler would have spent a decade in jail and womens’ rights would have been set back 20 years in Canada. OTOH, the government here made sure that it was not a problem for many cases - you have no right to a jury trial in Canada now unless you are charged with a crime that carries 7 years maximum penalty or more.
Besides, if a jury chooses to acquit in a case - you are just assuming it is deliberate nullification unless the facts are cut-and-dried, since they don’t give a reason.
Oh, I agree that there have been actual cases, but it certainly wasn’t the law maker’s intent when they made the initial law.
We live in a world where prosecutors have full discretion to hear cases, present evidence, and decide what they want to push. Prosecutors are political creatures who know what they need to advance a career. In many states, the district attorney is even an elected office, and you don’t get elected by promising you’ll give people a fair hearing. No, you’re suppose to be tough on crime! If sexting is making all the local news shows, the prosecutor will show that he’s on top of this scourge! They’re not going to let the destruction of a few innocent lives stand in the way of justice! Or, their career.
Another interesting case was Robert Latimer in Saskatchewan. He put his 10yo daughter in a truck and fed the exhaust into it. She had cerebral palsy - severe physical problems and mental retardation. By the time he decided to kill her, they were taking out her thigh bones because the muscle spasms were dislocating them and putting her n excruciating pain.
The prosecutor argued this was not a mercy killing, but that Mr. Latimer was just tired of taking care of his daughter. The jury didn’t buy it, but instead of nullification, they convicted him but asked the judge for clemency. The judge violated the minimum sentencing law; the prosecution appealed and he got the minimum 10 years, no parole.
So to avoid jury nullification, the jury is not allowed to be told the minimum sentence or any other relevant information. The only question put to them is "innocent or guilty?"based on the evidence presented. Details like what sentence they would get if guilty are not permitted to taint their deliberations.
Here is a thread where we explored a few state laws that require or permit the jury to be informed about nullification: Jury Nullification - Any US States where it is legally permitted? - Factual Questions - Straight Dope Message Board
I’m not sure if this was Jury Nullification exactly, but I do remember a shocked reaction from a judge about the verdict in a traffic case that I was on the jury for. This was a case where someone had stopped on a blind on-ramp and was rear-ended. The law in this state is that if you rear-end someone you are automatically at fault, since the presumption is that if you had been driving safely you would have seen someone directly in front of you in plenty of time to stop safely.
However we had to decide not only whether the second driver was at fault, but also the proportion of fault for each driver. Since the first driver stopped for no apparent reason in a place where traffic behind him would be both unable to see him and accelerating to freeway speed we determined that the fault was 99% with the first driver and 1% with the second driver.
We were each questioned closely by the judge to make sure this was really what we meant, but we were all very clear that the first driver had brought the accident upon himself and if it weren’t for the requirement that the second driver be found at fault we would have excused him entirely.
Cite that the Bourassa Liberal government of the 1970s was ruled by a “prudish [C]atholic heirarchy”, rather than just setting to apply the law as it stood at the time as they are required to?
Cite that the jury that acquitted Morgentaler was likely to have been composed predominantly of “convinced” Catholics, as opposed to merely nominal ones who won’t be any more opposed to abortion than anyone else?
Wahooo!! Thanks Bricker! I asked that question months ago but never thought I’d be lucky enough to get an official response! 
Now, I truly feel like a real doper!
Great staff report, Bricker. Very concisely and accurately covers the issue. Two phrases gave me pause, though:
The jury weighs the credibility of witnesses and of stories told, bringing their experience and understanding to the jury box.
Would it be better to write, “The jury weighs the credibility of witnesses and of their testimony…”?
But the reverse is not: if the jury acquits, the judge cannot reverse the acquittal.
Would it be better to write, “But the reverse is not true:…”?
I don’t mean to defend md2000 because md2000 seems quite capable of doing it himself(herself) - but come on man!
Md2000 didn’t make any claims as to the devoutness of the Catholics. The claim was that in the 1970’s Quebec was predominantly Catholic.
In the 1970’s Quebec was predominantly Catholic. Whether they were good bad or otherwise is moot.
Cite that 1970’s Quebec wasn’t predominantly Catholic.
I’ve thought a fair amount about this and I know that I can think of situations that, if I were on the jury, I would try to avoid a guilty verdict however I could. Latimer, as mentioned above by md2000, is a perfect example. I would have voted to acquit.
What are the rules in Canada? Can a jury be informed of their right to say “no”? Do they have that right? Or is it one of those pesky depends on which province you’re in things?
md2000 implies that it’s somehow amazing that Quebec Catholics would acquit Morgentaler, either because he was performing abortions or because he’s a Jewish doctor. I’m saying there’s nothing amazing here: the 70s may be 30 years ago but support for the legalization of abortion was already getting strong in Canada, including Quebec. Even if Quebec is predominantly Catholic, this specific type of “Catholicism” is IME more like generic Christianity, or even generic theism. And Morgentaler being Jewish doesn’t have any significance.
Jury nullification can be abused like any other power from any other institution. Juries were unquestionable during their invention in ancient Athens and America adopted a jury of our peers following English law to seek the protection of our peers from abuses and corruption of government officials: prosecutors and judges. Yes, during the civil rights movements, jury nullification was abused. But the rules prohibiting talking about it didn’t stop any of those abuses and federal jurisdiction for civil rights crimes remedied it. How many people would never have been given long stretches in prison for holding a quarter ounce of marijuana if the juries could nullify?
Juries were supposed to be the check to powers of judges and prosecutors. Juries were supposed to stop totalitarian governments by putting individual decisions in individual cases in the hands of sovereign citizens. Totalitarians have always opposed citizens having the ultimate say. A single corrupt jury only acts in one case. Corrupt judges and prosecutors make a whole damn career out of it.
I sat on a jury where we arrived at a nullification. There was no doubt that the defendant committed the acts of which he was accused but we could not, in good conscience, convict him.
I was the last hold out because I was wary of encouraging vigilante justice but the other jury members convinced me that he reacted as any other person in his situation would. Then it hit me…this is why you are judged by a jury of your peers!
I agree with The Second Stone. Juries are the people’s last legal recourse against tyranny. The state cannot enforce the law against a person unless it can convince a jury of peers of the crime.
While there are examples of juries refusing to convict despite the facts of the case, what is harder to measure are the cases that are never prosecuted because the prosecutor doesn’t think a jury will convict. The mere potential of jury nullification is enough to rein in the worst inclinations of prosecutors.