A recent Radiolab podcast discussed a
juror who was convicted for contempt of court after attempting jury
nullification. She was the first person in over 300 years to be punished for
her verdict as a juror. After googling the potential sentence in a possession
of methamphetamines case, the juror decided that she was going to refuse to
find the defendant guilty. She believed that the defendant was not guilty at
all, but since the other jurors all disagreed with her, she decided to try
another tactic.
She told the jury that they were
supposed to be the conscience of the community and implored them that they
could find her guilty even if they thought she broke the law by saying that
they don’t agree with the law. Another juror reported her to the judge, who declared
a mistrial. While this story rings alarm bells about more than just jury
nullification (did she tune out the part where the judge said not to use google
as a source of information?), it also brings to light how serious jury
nullification can be.
But jury nullification isn’t anything
new. The concept that the jury has the power to opine on the validity of laws dates
back to the Magna
Carta. “For centuries it was accepted that juries had two duties: judging
facts (deciding whether to convict or acquit), and judging law (deciding
whether it should be enforced).”
This is no longer the jury’s
prescribed job. In our modern American criminal justice system, juries are asked
only to apply the facts to the law as written. “As a juror, you cannot
substitute your sense of justice, whatever it may be, for your duty to follow
the law, whether you agree with the law or not. It is not your determination
whether the law is just or when a law is unjust.” This instruction, given by a California
district Judge, is fairly typical, and ensuring that a potential juror will
be willing to apply the law exactly as it is given has become a major
component of the voir dire process.
Despite its prohibition, jury
nullification still exists. Many people have suggested that jury nullification
played a role in the acquittal of O.J.
Simpson. The theory goes that a community enraged by the acquittals in the
Rodney King trials retaliated with an acquittal of their own, based more on
race and attorney persuasion than facts or evidence. However, others have disagreed,
arguing that the jurors had a rational basis for their verdict.
Proponents
of jury nullification argue that juries represent the “collective morality” of
the community and that as neutral bystanders—unlike lawmakers running for
re-election—they should be given the ability to uphold justice in opposition of
the law when necessary. Critics
point out that this goes beyond juries’ responsibilities and assert that asking
juries to make decisions about the validity of laws is too heavy a burden to
put on them. They also have identified the holes
in juries’ knowledge – often including a defendant’s criminal record.
Our criminal justice system is
built largely on the trust we put in juries, however that trust is not
universal. If we are hesitant in trusting juries simply to apply facts to the
law and render fair and accurate verdicts, surely we should not be trusting
them to make a statement as to whether or not a law is just or enforceable. However,
jury nullification should not be a punishable offense because of the difficulty
in identifying it. The sanctity of the jury room requires that jurors come to
their verdicts however they see fit. All we can do is ask that judges give
clear instructions and hope that juries act in accordance.
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