Jury Nullification: A traditional doctrine in the law that lawyers are not supposed to talk about

This is a repost from November 17, 2013. There is an excellent article by Glenn Reynolds in todays USA Today on this subject.

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At the end of a criminal trial the prosecutor gets the first opportunity since opening statements to speak directly to the jury. He or she will now tell the jury why the evidence they have heard points directly to the guilt of the defendant. The jury will be told that while the judge will give them instructions on the law, it is they alone who decide he facts, they alone who decide what flows logically from the evidence they have heard. The judge will tell them they must follow the law, and apply the law to the facts that are proved by the evidence.

Then the defense counsel gets a shot at the jury with a closing statement, followed by the prosecutor getting the last word.

Imagine the following as a part of defense counsel’s closing argument:

Ladies and gentlemen of jury, the judge is going to instruct you on the law that will govern your decision as to whether my client is guilty or not guilty. The judge will tell you that you are bound by the law to which you are instructed. Implicated in his instructions to you will be the notion that you have no choice when it comes to applying the law to the facts you have found are established by the evidence. You must follow the law, is what you will be told. But ladies and gentlemen, that’s not really true. You can judge the law just as you can judge the facts. You can look at the law as it is given to you and see what result it leads to under the facts you have found, and then you can ask yourself whether the law so applied leads to a fair result in this case. Does the law do justice in this case? You may ask yourself that question. You might decide it does, but I think you are going to have some qualms about that in this case. I think you might decide that the law and the facts taken together lead to an unjust result in this case. What are you to do in that event?

Find my client not guilty. That is what you may do if you find that you believe that to be the only just result in this case. But wait, you might think, the judge said we are bound by the law, we can’t decide against what the law tells us no matter if we think it is unjust. No, ladies and gentlemen, you are the last check against tyranny in America. The judge won’t tell you this, but you have the right to override the law if you think the law is unjust. Even if the law you are given seems to be just most of the time, you may find that under the facts of this case it is not. If so, you can still reach a just result.  You may find my client not guilty. Actually, juries like you have doing that for hundreds of years, but for some reason that makes no sense, I’m not allowed to tell you this…[at which point the judge comes unglued and holds defense counsel in contempt of court].

Actually, in most courts in America the judge would not have allowed defense counsel to have gone that far before ordering to stop and holding him in contempt of court of he tried to continue with that line of closing argument.  The Bar Disciplinary committee would also get involved with an ethics complaint against that lawyer.  Imagine that, legal ethics.  It can be an oxymoron sometimes.

This is the current state of affairs in America today but it’s a travesty because everything in the hypothetical closing argument I’ve set forth above is true.  If the facts point to the defendant’s guilt under the law as applied, but the jury comes back with a not guilty verdict, that is the end of the case.  Double jeopardy will attach and prevent the state from charging the defendant again, and the jury will go home and return to their lives just as if they had found the defendant guilty.  Nothing untoward will happen to the jurors because they will have done nothing wrong. They will have merely done what jurors have been doing for centuries, and to which they have always have an absolute right to do.  So why can’t they be told? Why is this treated as forbidden knowledge?  Why do they have to do this under the belief that are doing something wrong, when in fact it is their absolute right?

The reason for this is simple. Prosectors win 99.5% of their cases in the American criminal courts, 97% of those without a trial.  They want to keep it that way.

There are many areas of the law today that are ripe for jury nullification, especially in Federal Courts when the prosecution can often convict defendants and send them to prison for decades without ever having to prove the defendant acted with criminal intent.

An area of State laws ripe for jury nullification is the draconian drunk driving laws and prosecutions that an insane group of mad women calling themselves Mothers Against Drunk Driving have foisted upon America courts and motor vehicle administrative hearings. These laws are ruining the lives of millions of Americans when they are convicted when they were not drunk and posed no threat to public safety. Current DUI law goes too far and not only snares the truly guilty and dangerous drunks but also these millions of others who would have harmed no one if they had been allowed to go on their way. Their perfectly innocent conduct has been criminalized by an overreaching system created under pressure from a group of fanatics. The irony is that while persecuting the innocent, current DUI laws and enforcement are still failing to get the recidivist and dangerous drunks off the  road.

As always when I say anything critical of drunk driving laws in America, lest anyone think I have an axe to grind I must confirm that I have never been cited or convicted under any of these laws.  Although I try to be a wine connoisseur and I can enjoy a cold beer on a hot day I don’t drink these adult beverages unless someone else is driving or I’m at home and not planning on going out anywhere.  That is the only assurance of not getting entangled with this corrupt system.  That is tyranny, plain and simple.  No government has the moral right to make anyone live this way.  No government can state any rational justification for it.



  • One Hand Clapping

    I assume that the judge does not have this nullification option in a bench trial.

    • TeeJaw

      Not in criminal cases. But they do it all the time in civil cases. They don’t call it nullification, of course. They’d be reversed. When the judge is the trier of fact she has the right to find the facts just any way she wants to. If the judge doesn’t like the case or the parties she just finds the facts in a way that justifies her ruling for the party she favors. It is similar to jury nullification I guess because the standard of review is very difficult to overcome. An appellate court will only overturn a judge for erroneous fact finding if the facts as found by the judge do not stand up under the “substantial evidence’ rule. That means if there is any substantial evidence in the record by which the judge could have justified her finding of a certain fact, the appellate court will not substitute its judgment for that of the trial judge.

      The use of the word “substantial” is interesting in this context. While the dictionary definition is “of considerable worth, size or importance,” the legal definition changes in different contexts. Sometimes it means “a whole lot” and other times it means “just enough” or “more than nothing.” The latter is what appellate judges mean when they apply the “substantial evidence” rule. Most judges are clever enough to cover themselves on their fact finding and cases are rarely overturned under the “substantial evidence” standard of review.

  • One Hand Clapping

    We once saw a “Blue Bloods” episode where an NYPD officer (in street clothes and off-duty, but carrying his service revolver) was attending a retirement party at a bar. He drank, but I don’t think his blood alcohol was ever tested. Walking home from the party, he encountered a robbery at a convenience store. He pulled his weapon, aimed, and skillfully TALKED the perpetrator into laying down his weapon with no one injured. The “official” police response then arrived on the scene, and a sympathetic fellow officer gave the “hero” some breath mints. The NYPD supervisor saw this and charges ensued b/c the “hero” did not follow the NYPD requirement to be ready for duty 24/7. Nullication didn’t happen in this case.

  • TeeJaw

    Sounds like blue protecting blue followed by an anal supervisor asserting authority. Jury nullification is not prone to the sort of corruption of police officers not being held to the same standard as those to whom they police are held because the jurors will have no connection with the defendant clouding their objectivity. Jurors who nullify the law in a particular case are at least doing so in the pursuit of impartial justice, tempered by their unbiased judgment in a particular case.

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