09 February 2013

Jury Nullification


Jury nullification is the pejorative term used by the bench and bar to describe the phenomena of a jury doing what they want to do and ignoring the instructions given to them by the judge. Juries are reminded early in any proceeding that they are required to follow the law. This is a false statement not to be corrected by the attorneys trying the case. Juries sometimes do ignore the law and decide cases contrary to the instructions given them. It doesn't happen often, but occasionally you have a jury that decides they will find someone not guilty in spite of the instructions. A jury can always find a way to explain their decision such as they found the State's witnesses not credible. I've never heard a juror subsequent to a trial say that the state proved its case, but we found him not guilty anyway. Once again it boils down to do what your told to do. That's what life is about, isn't it, doing what your told to do? There is nothing more democratic than a jury; it is democracy in action. It is action by the people. We have a republican form of government. We elect people to represent us who enact the laws that control our behavior. These laws are enacted without direct involvement with the people. There is nothing to determine whether the laws passed are have the approval of the majority of the people; and even though it would be cumbersome and expensive to have a referendum on every legislative proposal prior to its final enactment, it would be interesting. More than likely it would bring more people to the polls. On one occasion I objected to the admonition to the jury that they must follow the law. I did make a record on it and simply stated that the jury can do whatever they want and to tell them otherwise is false and misleading and I should have added, a violation of due process. This objection brought an incredulous response from the judge who had never heard of such a thing and was overruled immediately. But this does raise an important question. Why is it proper to be able to tell a jury something untrue. According to many, the function of the jury is to find the truth; to come to a correct decision. Apparently, if the jury finds the truth they must decide accordingly--at least this is what they are told by the judge. But, they don't have to do that. If they find a criminal statute stupid, they may find the person not guilty simply for that reason. The courts do not want the jury to know what the possible penalties are as well. The fear is that if they did know what a person was facing, they would have a second reason to find the defendant not guilty. This is looked upon in horror by the courts. The result is that though some are found not guilty, the deck is stacked against the defendant. Everything possible is done to provide for a conviction of someone charged with a crime. After all, we need to do what we are told to do.