When a jury considers the charges in a criminal case, the jury is told that it should find the defendant “not guilty” unless guilt is proved beyond a reasonable doubt. But juries also hold a fundamental power that they are rarely told about: the power to find a guilty defendant “not guilty” if the jury believes the defendant should be spared a conviction.
Why would a jury do that? In the best cases, the jury puts justice ahead of the law and refuses to convict a defendant whose conduct was not morally blameworthy. For example, sympathetic juries have often refused to convict a doctor or spouse charged with assisting suicide when the defendant helped end the suffering of someone who was experiencing excruciating and incurable pain.
In the worst cases, juries base acquittals on race, nationality, sexual identity, or other factors that have nothing to do with justice. An all-white jury’s acquittal of two white defendants for the murder of Emmet Till is a classic example.
In the early years of American legal history, juries were often told that they were the judges of both the law and the facts. That began to change in the late 1800s, as judges came to regard themselves as judges of the law and juries as judges of the facts. While juries continued to have the power to vote “not guilty” if they thought a law could not justly be applied to the defendant, they were usually not told of that power. Rather, they were told to apply the law as explained by the judge to the facts they considered to be proved beyond a reasonable doubt.
In 1895, the Supreme Court held that a trial judge committed no error by refusing to instruct a jury that it could find a defendant not guilty regardless of the law. One hundred years later, however, the Supreme Court reaffirmed that juries alone are responsible for applying the law to the facts in criminal trials and to draw the ultimate conclusion of guilt or innocence.
The ability of jurors to ignore the law and to return a not guilty verdict when the evidence proves guilt beyond a reasonable doubt has come to be known as jury nullification. Whether juries have the right to disregard the law, or merely have the power to do so, has been a subject of judicial debate. After a jury is seated, however, the distinction arguably makes little difference. Double jeopardy prevents a defendant who has been found not guilty from being prosecuted again for the same crime. The unreviewable nature of an acquittal assures that juries have the final say when they decide, for whatever reason, to return a not guilty verdict.
The distinction between the right to nullify and the power to nullify is nevertheless significant for at least two reasons. First, during the process of jury selection, a potential juror might express an unwillingness to convict a defendant of a specific charge regardless of the defendant’s guilt. A juror who does not believe medical marijuana should be illegal and who would not convict a defendant of marijuana possession for a medical use is a relatively common example. Appellate courts have routinely upheld a judge’s decision to disqualify potential jurors from jury service when they admit their unwillingness to follow the law in returning a verdict.
Second, judges routinely refuse to tell jurors that they have the power to find a defendant not guilty even if the facts prove guilt beyond a reasonable doubt. Judges also order defense attorneys to refrain from telling a jury that it has the power to nullify the law. Appellate courts consistently uphold judges who make rulings that keep the power of jury nullification a secret from jurors.
Juror Education vs. Jury Tampering
The Fully Informed Jury Association (FIJA), among other organizations, argues that judges are wrong to conceal from jurors their historic power to elevate justice above the law by acquitting defendants who have been subjected to unfair prosecutions or prosecuted under unjust laws. Agreeing with Thomas Jefferson that juries are a safeguard against tyrannical government, FIJA advocates educating jurors about jury nullification.
In an effort to do just that, Keith Wood, a former pastor, handed out jury nullification brochures in front of a Michigan courthouse. The pamphlets urged potential jurors to vote for their conscience if it conflicted with the law. Wood’s arrest was ordered by a judge who arguably stepped out of a judicial role and into a law enforcement role when he decided that Wood should be arrested.
Passing out pamphlets in support of a political position is a fundamental right secured by the First Amendment. A different judge recognized that distributing brochures does not constitute obstruction of justice and accordingly dismissed that charge. A lesser charge of jury tampering remains pending. Ironically, if that charge ever goes to trial, the pamphlets will be part of the evidence and jurors will necessarily learn that they have the power not to convict Wood.
The prosecutor who charged Wood with jury tampering claims that Wood intended to influence jurors in a land use case against an Amish man that was scheduled for jury selection that day. The brochure was prepared by FIJA. It says nothing about the pending trial involving the Amish man. Whether any evidence supports the prosecutor’s claim, and whether educating potential jurors about a power that unquestionably exists can constitute jury tampering, are questions that might derail the case in deciding whether Wood should be convicted or acquitted.
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