One of the great things about jury trials is that the public—the citizens of a county—get to decide what conduct they believe is deserving of punishment. Towards this, there is a concept called “jury nullification” wherein the jury may believe the Defendant is guilty, but disagrees with the law, and acquits the Defendant. (Read that again—that’s right: the jury may fully believe the Defendant did whatever the Defendant is charged with, but may disagree with the law and find the Defendant “not guilty.”)
Wait a minute—can a jury really do that?!? Sure! We have jury trials because our judicial system belongs to the People, and we want the People to decide what behavior we will, and will not, tolerate. That is, both the behavior of the Defendant, and of the Government (in bringing the charge.)
Judges may complain about it, but there is nothing they can do about it. See: Paul Butler, “Jurors Need to Know They Can Say ‘No’”, New York Times, December 20, 2011, on-line edition and print; see also, Cornell University School of Law webpage on “jury nullification”, at http://www.law.cornell.edu/wex/jury_nullification; I would disagree with the folks at Cornell when they suggest that jury nullification is “inconsistent with [the duties of the jury]”—I don’t know that there is a more “American” and traditional duty of a juror than to act as the voice of the People. See the discussion below on the tradition in America of jury nullification. Note, however, that Cornell concedes that a jury’s verdict of acquittal is “unassailable—even when the verdict is inconsistent with the weight of the evidence and the instruction of the law.” When a jury acquits a defendant, that’s church, so-to-speak.
Last year, a visiting judge in Tarrant County lost his cool a bit when jury nullification arose and he made national news. See: Bud Kennedy, “In Tarrant County, a Visiting Judge’s Chewing-Out of Jury Goes National,” Fort Worth Star Telegram, November 27, 2013.
It is a powerful concept, to be certain: the jury, fully believing the Defendant broke the law, decides that it disagrees with the law, or its application in that particular case, and finds the Defendant not guilty.
Does this happen? You bet. Historically speaking, juries have used “jury nullification” as a means of protesting the Government and the Government’s laws.
For example, during Prohibition, juries frequently refused to find persons found to be in possession of alcohol guilty, when the person clearly was guilty of possessing alcohol. Thus, it is clear that what is being “nullified” in such situations is the law itself—the jury considers the law (prohibiting the possession or sale of alcohol) wrong, and nullifies (refuses to prosecute the defendant for) it.
This same thing happened across the American northeast during the 1850’s when fugitive slave act prosecutions began. The Fugitive Slave Act of 1850 required people to turn in fugitive slaves, or face prosecution. American juries in the northeast routinely refused to prosecute such persons under the Act.
In the late 1800’s, juries routinely nullified prosecutions under anti-strike laws (making it unlawful for workers to strike to protest conditions, wages, etc.)
Today, Denton and other counties run into jury nullification issues with possession of small amounts of marijuana: the evidence may unequivocally show that the Defendant possessed half a gram of pot or so (a Class B misdemeanor), but the public may refuse to find such person guilty of a criminal offense. See: Clay S. Conrad, “Can Jurors Hasten the Legalization of Cannabis?”, Houston Chronicle, February 17, 2014, on-line edition; James A Baker III Institute for Public Policy at Rice University, “Ceasefire In the War On Marijuana In Texas? Trial By Jury and Jury Nullification,” Houston Chronicle, February 19, 2014, on-line edition. (It’s not just Houston—note that the articles concern what is happening in large counties—such as Denton County—across the State of Texas.)
Jury nullification is the principal means that citizens have to make known their opposition to the Government’s laws. Historically, it has been used as a means of making the voice of the people (“vox populi”) known. So, the next time that you sit around with your friends talking about how [insert law] should be legal, remember that YOU have the power to change the law, one nullification at a time.