If you watch any prime-time courtroom dramas, you might have heard about something called “jury nullification”. The idea is that juries can “judge the law”, and therefore somebody who’s clearly obviously and guilty can go free. For most people, that doesn’t sound much like what we all learned in high school civics class.

Is this just one of those things TV show writers make up to make their stories work? Well….no. Jury nullification isn’t made up, but it’s also not that common. Let’s look at it in a bit more depth.

What Jury Nullification Is And Isn’t

Let’s look at an example of straight-up jury nullification.

Stephen Jones is in court for drug possession. He was charged with possession after being caught with some marijuana in his pocket. The arrest was “clean”, meaning the police followed all of the appropriate rules. Stephen admitted that the drugs were his, and the confession was valid. Stephen’s lawyer can’t find any legal loopholes, and everything about the trial was just about a slam-dunk for the prosecutor. Now the jury goes to deliberate.

The jury believes Stephen is guilty, according to the law. They’re agreed on that point. But they believe for some reason that the law is being mis-applied. Perhaps they believe that Stephen wouldn’t have been charged if he had more money, or lived in a nicer neighborhood. Or maybe they believe that Stephen’s skin color is a major factor as to why he’s being prosecuted, rather than being given a reasonable plea deal. They also know that if they convict him, he could be facing 6 months in jail – which would affect his ability to care for his kids and elderly mother. And based on the testimony they’ve heard, applying those consequences to Stephen’s situation doesn’t seem fair to them. In other words, they don’t dispute that the law was broken – but they believe that punishing Stephen for breaking that law would be unjust.

The jury therefore renders a finding of “not guilty”, and Stephen walks free – even though nobody questions that he actually broke the law.  The prosecution also doesn’t get a “do-over” because they think the jury made a mistake. Since Stephen has been found not guilty, he doesn’t have a criminal conviction on his record. Stephen’s “not guilty” is the same as every other “not guilty” verdict.

It’s important to note that, despite the phrasing that “juries can judge the law itself”, jury nullification doesn’t actually strike down or repeal the law. Those two things are the responsibility of courts (via judicial review) or the legislature. So if Dave is on trial for drug possession after Stephen gets found not guilty, Dave can still be found guilty. The nullification only applies to a single case.

How Is Jury Nullification Legal?

In practice, the legality of jury nullification centers around two important principles.

First, juries aren’t accountable if they return a verdict that the court doesn’t agree with. They can’t be fined, penalized, or prosecuted – no matter what they decide.

Second, jury deliberations are secret. When a jury is deliberating, there aren’t cameras running or court reporters taking notes. The reasons for this are to protect the rights of both the person accused of the crime, and the privacy rights of the jury. This means that nobody can say – for sure – what was actually said in the jury room.

The combination of these two principles means that it’s almost impossible to know if a given jury has engaged in jury nullification in the first place. And because “not guilty” verdicts are final, the person being charged can’t be charged again in a new trial. 

So Why Don’t Lawyers Argue This More?

The long and the short of it is that most defense lawyers would love to throw a speech about jury nullification into their closing arguments. Even if they’re losing on the facts, jury nullification could be presented as an option.

But needless to say, courts don’t like jury nullification all that much. The idea that a small group of people can just decide to ignore the law doesn’t sit well with them. And there’s even some Supreme Court precedent that calls its legality into question. Therefore, a jury isn’t going to hear about nullification from the judge or the lawyers. And there are arguably-good reasons for that.

The main reason is that we live in a republic. In that system of government, the people elect representatives – and those representatives make laws. Those laws are considered to represent the will of the people. If the people as a whole believe that something should be punished as a matter of law, it actually subverts justice to have juries regularly deciding to ignore that law. 

In fact, many of the notable cases where jury nullification is suspected to have occurred are in situations where the public sentiment has largely turned against the law, but the law hasn’t caught up yet. During the Civil War, there were notable examples of juries refusing to convict slaves of running away from their owners. The law was the law, and the facts were on the law’s side – but the juries couldn’t bring themselves to convict the runaway slaves. When that happens enough, eventually fewer and fewer people get prosecuted for those crimes. And eventually, sometimes decades later, the law usually gets changed.

That said, there’s a bit of language in the standard Wisconsin jury instructions that leaves room for it:

“If you are satisfied beyond a reasonable doubt that all three elements of this offense have been proved, you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty.”

Note the difference between “should find” and “must find”. And that’s the tiny legal window that jury nullification can crawl through. 

Jury Nullification Definitely Happens – But Don’t Count On It

The bottom line here is that jury nullification definitely does happen. But if you’re facing criminal charges, it’s not the horse you want to be betting on. You’re much better off to avail yourself of the many legal and procedural strategies to get evidence suppressed, charges bargained down, or even outright dismissals. And a great criminal defense lawyer will be familiar with how those strategies can apply to get you the best possible result in your case.

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