Why Can’t We Nullify?

Why Can’t We Nullify?

Jury Duty: A pain, a nuisance, an imposition on our everyday lives.  When I typed in “Ways to get out of” into Google, the very first suggested search was Jury Duty…followed by debt, a lease, school, depression, and a speeding ticket.  If Jury Duty is such a problem for citizens, why do we even utilize it?  Couldn’t we use a panel of judges with their expert discretion?  What is the point?

We need to realize: a jury of one’s peers is a powerful and important factor in the legal system.  Jeffery Abramson in We The Jury explains this through his personal experience.  He writes, “To me, as a young lawyer, the jury signified the rule of emotion over reason, prejudice over principle, whim over written law.  With the passage of years, however, I have come to take a more positive position.  After all, there would be little point to a jury system if we expected jurors always to decide cases exactly as judges would decide them” (p. 6).  There is something about being heard by a jury of one’s peers that humanizes a case; however, it is important to acknowledge that this humanization does not mean irrationality.  The jury isn’t expected to make decision identical to those of judges, because if it was, the jury would be completely purposeless.  He continues, “The direct and raw character of the jury democracy makes it our most honest mirror, reflecting both the good and bad that ordinary people are capable of when called upon to do justice.  The reflection sometimes attracts us, and it sometimes repeals it.  But we are the jury, and the image we see is our own” (p. 250). 

With this understood, why is it illegal for a juror or jury to nullify a case?

Furthermore, Paul Butler, a former prosecutor, explains In Defense of Jury Nullification that prosecutors, FBI agents, and police officers can use their discretion when choosing which cases to pursue.  He writes, “I had the discretion to charge a person with a crime or to withhold charges even if I thought the individual was guilty. I elected not to prosecute people I thought were guilty all the time-that wasn’t nullification, it was ‘prosecutorial discretion.’ Before cases came to me, law enforcement officers, police and FBI agents-often decided not to arrest people they knew were guilty. Maybe a cop thought a dime bag of marijuana wasn’t worth saddling a kid with a criminal record. Maybe an FBI agent thought a charge against a popular official right before an election would be seen as political or be so divisive it would do more harm than good. None of these extrajudicial acts of excusing criminal conduct particularly upset most people. Ironically, it is only when 12 jurors do it, as opposed to one police officer or prosecutor, that a hue and cry ensues” (p. 46-47).     

I am conflicted and confused: if juries are not allowed to use their discretion, then why do they exist?  It seems to me that the greatest and most amazing thing about a jury is bringing the viewpoint of the public into the courtroom and not allowing the justice system to be overwhelmed by intellectual and wealthy legal scholars, lawyers, and judges.  If jurors are not allowed to completely express their voices and nullify a case, then why do they exist?

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8 Responses to Why Can’t We Nullify?

  1. I don’t believe it is illegal for a jury to nullify. It is usually not stated by the jury that they are doing this. They simply say guilty or not guilty and are not required to explain. However the courts are not obligated to tell you that nullification is allowed. Most people simply do not know about it. I found out about it a few months ago when a guest speaker talked about it at tempe. It’s like the ghost in the system, you can’t see it until you know what you are looking for.

  2. theginja says:

    Jury Nullification is alive, and definitely not illegal.

    In fact, it happens more often than you think … aaaaaand, I found the topic of my next blog. To be continued …

  3. newbieblogster13 says:

    I don’t think jury nullification is not allowed, definitely frowned upon though. The prosecutor spends a lot of time trying to do his/her job and so he/she may be discouraged when a case is nullified. It may mean that the prosecutor should have done a better job but sometimes it is beyond that reason. People on a jury sometimes gets distracted by emotions over justice and so a defendant, along with the attorney, may hype themselves up and give out a “good guy vibe” to attract the juries to their side. This could all be an act to only get off a crime that the defendant really committed when in reality this person is nothing like the persona they pursued during trial. I am not trying to say that jurors are always gullible but it still happens. There are movies and shows that even take that method as part of their stories to imitate what happens in real life. The defense attorney may say stuff like, “the evidence is against us, but X person is a father/mother of three, a loving wife/husband, and so forth. If we can show the jurors X person is an outstanding citizen and person then this case may just be ours.” X person meaning anybody possibly be in trouble. In regards to the police having prosecutorial discretion, maybe people are more fine with that because an officer had training to become a cop and develop such judgment when jurors are regular people without any training. The majority anyways. Anyways, I also think jury nullification is a wonderful thing but there are both the good and bad sides to it.

  4. elason13 says:

    I would totatlly nullify if I thought that it was for a valid reason, like you discussed in your blog. However, I would want to tell the courts that that is what I was doing, which seems like a be mistake if I could possibly be prosecuted, such as the woman in the article who nullified (because she didn’t want to convict the defendant for a possession of marijuana crime, since she believed marijuana should be legal). I feel that if nullification is a right, then that right should be protected by law.

  5. haleyschryver says:

    The job of a juror is to rule on the facts of the case that were presented. Jurors are supposed to be a check on the justice system, and nullification can be a good thing if there is something wrong with the law. The problem comes when jurors nullify simply because they get a good vibe from the defendant and don’t want to convict, or they don’t want to convict a white man for a crime against a black man which has happened many times in the past. It can be dangerous when jurors are looking at extraneous factors rather than just proof beyond a reasonable doubt.

  6. I guess I must have misunderstood based on our classroom discussion. I thought we had toyed with the idea that you could be punished for nullifying and that nullifying was risky. Whoops.

    Regardless, as pointed out previously and in other posts, people have been charged with “Jury Tampering” for either a) nullifying such as the marijuana example above or b) advocating nullification through brochures or other types of literature as mentioned in another thread.

    So even if nullification is actually not illegal, it still seems to me that it is heavily frowned upon and that there is a lot of effort put forth to make sure jurors are not aware of nullification.

    I also do understand the notion that nullification can be a problem when jurors do not convict based upon a whim, racism, etc.; however, I would rather have incidents like that happen and still have the power within the grasp of the people where we still have a say.

  7. rubit91 says:

    From my understanding nullification is allowed. It is an option that is beneficial to jurors. I believe that if this option is taken into consideration it should be based on not enough concrete evidence rather than emotions.

  8. I would nullify every gun charge brought before me, assuming the defendant was not a prior felon. I would also nullify cases charged by the federal gov’t that are classified as federal crimes if the issue at stake was not a federal matter. Juries need to keep the system in check. This is how you handle a government that is no longer representative. If necessary, you handle it in the courts. Place yourself in the shoes of the defendant and ask if the charge against him is legit and if the proper authority is making the charge. If you can answer yes to these two questions… Then consider if the charges were proven beyond reasonable doubt.

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