Jury Nullification

Instapundit: Say Yes to Jury Nullification—and Screw You to Prosecutorial Abuse

How "the people" work around bad prosecutors.


Instapundit Glenn Reynolds, who teaches law at University of Tennessee, is one lawyer who is into jury nullification. He writes in USA Today:

The power of juries to let guilty people go free in the name of justice is treated as suspect and called "jury nullification," the power of prosecutors to do the exact same thing is called "prosecutorial discretion," and is treated not as a bug, but as a feature in our justice system. But there's no obvious reason why one is better than the other. Yes, prosecutors are professionals — but they're also politicians, which means that their discretion may be employed politically. And they're repeat players in the justice system, which makes them targets for corruption in a way that juries — laypeople who come together for a single case — aren't.

However, as Reynolds points out

Nowadays, jury nullification is less important because, as I recently wrote in theColumbia Law Review, so few cases even go to a jury anymore. Instead, prosecutors draft massive "kitchen sink" indictments charging dozens or hundreds of crimes, then bludgeon defendants into accepting a plea bargain rather than risk a trial in which conviction on even a single count out of hundreds of charges could be disastrous. A different kind of jury — the grand jury — is supposed to discipline prosecutors on indictments, but in practice, they've turned into rubber stamps for the most part.

Read the whole thing here.

Related: That time a federal grand jury requested information about commenters at Reason.com.

More Related: "Jury Nullification vs. The Drug War"


NEXT: Obama's Clean Power Plan Would Reduce Global Warming by -0.015 Degree By 2100

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So how often is this jury nullification happening here in the land of the free?

    Do we have some sort of data on that?

    1. I’m thinking they type of person who would attempt it would never make it through the jury selection process.

      1. Ab-so-lutely. First they tell you that anyone found out to be liars later on will be charged with X, Y or Z, or otherwise end up on the judicial system’s shit list. Then they ask you if you would be unwilling to indict or convict someone based on opposition to the war on drugs or arcane notions of victimless crime.

    2. Dunno. What are the chances the jurors nullifying a charge in one case end up being defendants in a slate of jury tampering cases?

      1. The prosecutor who was doing the selection in my grand jury hearing made that clear. But even if they couldn’t bring formal jury tampering or contempt of court charges, something tells me that I’d have been put on some list over at the police department where they keep track of people that the prosecutor would like to see fucked over. I was very relieved that I wasn’t selected for duty, since I cannot bring myself to indict someone for victimless crimes.

  2. I’m still not clear on whether you can get in trouble in any way for practicing jury nullification. It seems I’ve read cases where people have.

    1. You can’t be prosecuted for jury nullification, so what they do is prosecute you for perjury for failing to honestly answer the jury-selection questions which are designed to weed out nullifiers.

      1. Or contempt for ignoring the judge’s instructions.

        1. Yup, since the instructions generally include “You must decide based on whether the defendant violated the law, whether or not you agree with the law itself”.

    2. I thought you could get into trouble for simply advocating it.

      1. What happens if a jury hangs several times in a row? Do they let him go or keep on prosecuting?

        1. Depends on the DA and the crime being prosecuted. If a jury hangs repeatedly it’s a sign the case just isn’t that strong and they’ll probably drop it or make a list ditch effort at a plea deal with the defendant.

          1. So if a couple upstanding individuals (on subsequent juries) were to shut their mouths and say nothing more than. “I don’t believe the prosecutor proved his case beyond a reasonable doubt” and nothing more, how could they do anything to you?

            (Other than FYTW)

        2. What always happens when government proves itself venal, capricious, corrupt, and incompetent? It doubles down and plead for more funding.

  3. But about 100 years ago (back when they were writing the Constitution) a bunch of juries used nullification to acquit white people for lynching. Therefore, jury nullification is evil, and anyone who advocates it is racist. Don’t you know that?

    1. + somalia

    2. Somehow it wouldn’t surprise me if some progtards actually think that.

      Because there’s no way an agent of the good and powerful state would ever railroad an innocent person into prison. No sirree, “the government is good, the government is great, we surrender our wills as of this date.”

      1. Government is We The People! Says so right there in the Constitution! The People would never do that! But corporations would! Down with corporations!

      2. Yet these same people probably know the lyrics to “Hurricane,” by Bob Dylan.

  4. Wait isn’t a jury supposed to be a check on abuse and overreach and bad laws, as in “I refuse to convict this person because you are bullshit, or the law is bullshit”.

    You don’t like that prosecutor, that’s too fucking bad. That’s how checks and balances work.

    1. Checks and balances are like quaint and stuff. You forget that government can fix anything with the proper application of force. Checks and balances limits the government, which limits its ability to fix every problem in the world. That’s why we have an executive that legislates by executive order and regulation, a legislature that crafts legislation that is in blatant disregard to the Constitution, and a judiciary that rubber stamps it all. Jury nullification is the final check on this, which is why it is de facto illegal.

  5. How the hell would you get in trouble? If I’m on the jury, I just keep refusing to convict. If asked why, I simply say the prosecution didn’t convince me that a crime had been committed. If asked what level of evidence would it take to convict, I say I don’t know, I’m not a prosecutor, judge, or professional juror.

    1. Then at best you would get a hung jury, not an acquittal. If you want an acquittal because the law is unjust, you would have to argue for it.

  6. I’ve had jury duty only once (being a youngin’) but doing so certainly confirmed my low opinion of the intelligence and moral soundness of judges.

    The judge at the trial I was being screened for made it clear that he considered jurors ignoring the law “tyrannical” and a grave danger to the justice system. It was a stunning example of assbackwards logic. Thankfully a jury was picked before I was called to answer questions and I got dismissed.

    I had to seriously consider if it would be worth pissing him off to answer honestly during the questioning my thoughts on nullification.

    1. The only grace danger to the justice system is tyrannical judges and prosecutors. A jury is supposed to be the last line of defense against them

    2. I’ve had jury duty a few times, was selected as a juror once. The judge was fine with my answering the questions honestly, but the prosecutor dismissed me.

    3. The judge at the trial I was being screened for made it clear that he considered jurors ignoring the law “tyrannical” and a grave danger to the justice system.

      Was his name Tony? (Tony frames liberty as something to be imposed upon society by tyrannical libertarians)

      1. Yes! We’ll take over the government, dismantle most of it, then impose our tyranny with what? The Power of our brains?

        1. Tyranny of the rich! Libertarians lick the corporate boot that holds them down! Without government protection, the corporations would enslave us all! It would be a feudal system of corporate lordship!

          (Then in the next breath the government needs more power because it is controlled by the corporations, and with more power it can control the corporations that control it. But never expect consistency from the emotional mind of a progtard.)

    4. Yup, that happened to me the one time I was on jury duty. During jury selection the judge and I got into it about jury nullification. She kept insisting to me that it was her job to give the jury the law in question and the jury could only return a verdict based on the facts and not the law. I kept telling her that no juror could be forced to vote against their conscious.

      It ended with her kicking me out of the jury pool in a big huff. On the next jury selection I was involved in, the judge and lawyers didn’t seem to mind so much about it.

    5. I had to seriously consider if it would be worth pissing him off to answer honestly during the questioning my thoughts on nullification.

      You might not have pissed him off. But they would have dismissed you then and there and if you’re lucky, they won’t pass on your information to the local PD to conduct an investigation of you as a potential criminal. “He refused to convict a drug dealer by claiming that drug dealing is victimless. He must be a drug dealer.”

  7. they’ve turned into rubber stamps for the most part.

    For the vastly overwhelming part. The Grand Jury that I was summoned to attend (but was not selected) was implicitly told that any potential nullifiers amongst us who did not out themselves immediately during the selection process, could be charged with contempt of court later on. If Grand Juries are supposed to be a check on prosecutorial power then the prosecutor shouldn’t be their fearsome overlord from the onset.

    1. so what if everyone believed in that? Can’t kick everyone off

      Seriously though, that should be illegal. Kicking people off a jury because they believe in a legal juror right, but it’s something you don’t like….

      hey let’s just make jury nullification defacto illegal by not allowing anyone who believes in it on a jury

      1. so what if everyone believed in that? Can’t kick everyone off

        Yes, they can. They can kick out the whole jury pool and summon a new batch. Moreover, they can charge as many of us as they would be able and willing to.

  8. Think of this scenario – some poor guy is on trial for marijuana. The prosecution asks jury candidate #1 “do you believe it’s wrong to punish people for using or selling weed?” “Of course it’s wrong.” “Would you be willing to set aside those idiosyncratic, personal beliefs and follow the law?” “Put someone in prison for a plant? Screw you, I would never do that.” “You’re dismissed.”

    Then imagine the next juror saying the same thing. And the next. And the next. Of course they’re dismissed. Eventually they get a panel of the minority of citizens who still believe in punishing people for weed. Maybe they win the case, maybe not.

    Wear them down.

    Even better – “what do you think of the dope laws?” “None of your business, you’re trying to get a jury representative of the community, aren’t you? And lots of people in this community don’t believe in punishing people for weed.” “Would you set aside your idiosyncratic, personal…” “You’re trying to tamper with this jury by telling them what verdict to reach? Up yours!” “OK, we’re locking you up for contempt.” [as he’s being dragged away] “This is how they treat potential jurors, do you trust these people?”

    1. “Will you follow the law as I, the judge, explain it to you.”

      “Sure, if your legal interpretation is correct.”

      “Wait, that’s not your job, if (which will never happen) I misinterpret the law, an appeals court can correct me.”

      “So even if you misinterpret the law to harm the defendant, and I know you’re misinterpreting the law, I should convict the defendant anyway and force him to spend lots of money in legal fees in hopes that an appeals court will correct your error.”

      “Bailiff, arrest this guy a *lot.*”

    2. That’s pretty much it. The prosecutors get to select their grand jury. The prosecutor gets threaten his jury pool. The prosecutor gets to be the jury’s sole guide through the facts of the case. How in the world grand juries are supposed to operate “as intended” under these circumstances I’ll never understand.

Please to post comments

Comments are closed.