I’m really saving that for the section on Advanced Crim Pro — which I won’t be getting to until I do Constitutional Law first.
But in a nutshell, jury nullification is when the trial jury decides to acquit a defendant even though the government has proven its case beyond a reasonable doubt. The trial jury’s job at this point in history is really little more than deciding whether the government proved its case or not, so there’s an argument to be made that jury nullification is improper, if not unlawful.
However, it is an act of civil disobedience that has long roots in our system. In the colonies, it was used to prevent the punishment of those who sought independence. More recently, it has been used not so much to prevent individual injustices but systemic ones — I’ve had jurors tell me, for example, that they just didn’t want to see another young black man go to jail, no matter what he did. And now there has been talk of using it to protest unjust laws themselves.
But despite all the talk about it, jurors tend to do their job as properly as they can. And it is important to note that we require all 12 of the jurors to reach a decision together, which makes it really hard for one person’s moral qualms to override the process. Jury nullification is rare, as a result. Usually, the nullifying juror becomes an obstinate holdout who either causes a hung jury (making the victims and defendants and lawyers go through the whole thing all over again) or is eventually convinced to do his job like the rest of them. So concerns about the chaos, unpredictability and injustice of nullification are probably overblown.
Moreover, if all 12 really do go along with nullifying a charge, that powerfully tells you that either the law, or the way it is being enforced, does not reflect the mores of the relevant community. And the whole purpose of criminal law is to reflect just that — to punish those acts that are so bad that society says they’re deserving of punishment. So when nullification actually overcomes the systemic obstacles to its happening, one might argue that it’s a good thing for justice and for our faith in the justice system.
What people tend to overlook is that the Grand Jury is absolutely empowered to nullify. The GJ’s job isn’t to decide guilt or innocence, but whether you should be charged with a crime in the first place. So not only are they there to decide whether there’s enough evidence to support a charge, but also to act as the “conscience of the community.” In other words, to decide whether it’s really just and fair that THIS person be prosecuted for THIS offense.
Sadly, few grand jurors are ever told that they have this second role. They’re not really told this by judges, nor by the prosecutors who instruct them and present the evidence. If you want my opinion, people should be up in arms about that very real and systemic failing rather than any problems trial jury nullification may pose.
huh… that last bit there, that’s interesting.