Letting Your Conscience Be Your Guide - Jury Nullification - What the Government Doesn't Want You to Think About When it Asks You to Be a Juror
Checking Your Conscience at the Courthouse Door
Prosecutors are fond of telling prospective jurors that jurors are not required to leave their common sense at the door of the Courthouse, and that as jurors they are allowed to bring their common sense to their role as jurors.
And yet, the same is not true for your conscience, at least according to them. If you expect to be allowed to be a juror, you will need to be willing to say that you are willing to check your conscience at the Courthouse door.
That's not how they will put it, and I can guarantee you that if, during a jury selection, I spoke those words, I would be ripped to shreds by the Judge in front of the jury.
But here in the arena of free speech guaranteed by the United States Constitution, where I am not under the control of a person who has the discretionary power of contempt over me and a small army of armed agents to enforce it, I am at liberty to speak more freely.
As a juror, when the time comes to render a verdict, if you believe that the rules given to you by the Government require a verdict that your conscience is telling you is wrong, they will tell you to ignore your conscience and follow the Government's rules. The same conscience that has guided you through your life and helped you know right from wrong, the same voice inside that perhaps you ignored to your great regret once or twice in the past, is the very same thing the Government wants you to ignore as a juror, to the extent that your conscience, or your inner voice wants to reach a different conclusion than the Government's rules might suggest.
Jury Nullification is the Legal Principle of Conscience
Jury nullification is a recognized legal principle. The law recognizes that jurors have the POWER to nullify a case even outside the strict application of the law that jurors are asked to swear to uphold. The law doesn't recognize the RIGHT of jurors to do this, only the power. The practical significance of this is that the Court will never advise a jury about this power, although there are clues to its existence.
How Might This Power of Jury Nullification Work?
Sometimes, things are wrong and we can't put our finger on it. Sometimes we know we shouldn't walk down the dark alley. We can't mathematically prove why not, but we know we shouldn't do it. The universe can't always be reduced to perfectly working rules, even when the rules work most of the time. It doesn't mean that we throw out the rules or forget about them. It just means that we need to allow for the possibility that the inner voice will guide us toward the right answer sometimes, even if we can't prove why it is the right answer. In this way, jury nullification is like a kind of faith in something more than what we can see and point to and define.
I believe that there will be times when the right verdict in a case won't be subject to the rules provided by the Government. There will be times when the right verdict in a case will just need to be known and accepted on a faith that the inner voice that has guided us isn't steering us wrong now.
Of course jury nullification will not be a tool to be pulled out lightly and care needs to be taken to make sure that jury nullification is not simply a natural sympathetic response to the problem of performing a justified but unpleasant duty. The Government would howl with a million complaints over such an argument as this, pointing out a zillion different hypothetical situations that all lead to chaos and unpredictability in the system.
My answer to that is that first, it is absurd to imagine that there isn't already chaos and unpredictability in the system. Jury nullification already exists. It already happens. It happens when appropriately moved jurors do what they think is the right thing to do, even when it perhaps isn't the legal thing to do. Jury nullification is a human phenomenon. It is messy. It is dangerous. Used willy-nilly it could be disastrous to be sure. But the same thing could be said about a gun or a knife. In the wrong hands a gun can be the source of untold evil. In the right hands, and at the right moment, a gun can be the source of protection and justice, or the source of food for a family. In the same way, jury nullification, used under the right circumstances can allow an impartial cross section of the community the opportunity to decide that in one particular case, the application of the Government's rules operates unjustly and therefore spare us a grave injustice in the world.
But what, the Government may say to me, if this jury nullification thing is used AGAINST your clients? What do you say about it then? Why do you assume that it is only the NOT GUILTY verdict that will come as a result of jury nullification?
My answer to that is first that jury nullification is more likely to be a tool used by a jury to impose a stumbling block on a Government that has gone too far. Jury nullification is a great power that citizens have over the Government. When the Government pursues a fellow citizen in Criminal Court, the Government comes to Court with great advantages and must be met with a suspicion from the citizens of the community. Our Founding Fathers recognized that the Government was too often used as a tool to persecute the powerless or those of different political views.
The Government doesn't need advantages in Criminal Court. It has plenty going for it. In the real world, it is the power to accuse that is the real power. Once the accusation is made, every case has a settlement value because of the insane risks of outlandish mandatory minimum jail time upon conviction. The Government can't guarantee you that if you are innocent you will be acquitted, but it can guarantee you a life crushing mandatory prison sentence if you are convicted.
Second, in terms of the worry that jury nullification could apply to a jury that "felt" like convicting even though the evidence showed that the defendant were not guilty, who is to say that this isn't already happening? Many jurors come to court predisposed to believe all kinds of nonsense about the criminal justice and how it works that they have been conditioned to believe by outlandish portrayals of the system on television and the movies.
Miranda, portrayed as the poster child for technicalities that cause criminals to go free, in truth is an absolute joke in the criminal justice system that has never once caused a single case to be dismissed in the United States. I spend a significant portion of my life un-explaining the misconceptions about the criminal justice system to clients who are shocked that I am not telling them that some "technicality" is going to "get them off". The Government gains the advantage of all of this predisposition and in most cases it will be impossible for the defense to expose and discuss a tiny fraction of the nonsense that many jurors will come to Court believing (through no fault of their own). So frankly, I think jurors already do plenty of jury nullification for the Government on their own already.
I think that it therefore isn't such a disaster if from time to time jurors actually use their power to nullify a case to deny the Government a chance to ruin the life of a fellow citizen, when the circumstances may demand it even though a strict and unfeeling application of the Government's rules would suggest a different outcome.
Realize that these decisions will not be by biased fact finders who have an ax to grind for the defendant or who stand to gain or lose anything by their verdict. What a remarkable thing if 12 total strangers unanimously agree that the Government, through the application of its rules in a particular case would create such an unjust result that they can't approve. How utterly extraordinary that there would ever once be such selfless compassion demonstrated by twelve total strangers? Should this be discouraged? Is it morally right to discourage such an act of conscious and collective moral outrage against the Government when honestly come to by 12 total strangers to each other and the accused?
Remember - The verdict form will have TWO choices.
No verdict form provided to a jury will ever include only the option to find someone guilty. This will never happen. This is true even in cases where the judge believes that the evidence is so incredibly overwhelming that the judge is convinced to mathematical certainty of the guilt of the defendant.
If you have two choices, then you don't have just one choice.
They sometimes like you to think you have only one choice. Most verdict forms offer the choice of Guilty as the first choice instead of Not Guilty. In 25 years of practicing criminal defense, in every trial I have ever done, I have made the application to change the verdict form simply to make Not Guilty the first choice. I have volunteered even to spare the Court the trouble of editing the form by retyping it myself. In every instance I have been denied, even though having the Not Guilty verdict be the first choice naturally reflects the presumption of innocence.
So despite their efforts, you have TWO choices, in EVERY case.
A Verdict of NOT GUILTY is Forever. You Owe No Explanations to Anyone
Once your verdict is rendered, as long as it is not rendered by the casting of dice or some random manner, you are not accountable to anyone. You need not discuss your deliberations. You need provide no justification. It doesn't matter what the Judge thinks. It doesn't matter what prosecutor thinks. It doesn't matter what the defense lawyer thinks. It only matters what you think. If you choose, you can simply walk away from the spotlight and get back to your life. There is nothing they can do about it.
Personally, I am not a lawyer who seeks out jurors after trials are concluded. I am a great believer in the anonymity of jury duty. I simply assume that every juror just wants to get back to his or her daily life and walk away from the experience. I think it is important to allow jurors to just walk away, regardless of the verdict.
The great source of power of the jury is in the fact that jurors remain anonymous members of the community - like the conscience of the community itself. Jurors are everyone. Jurors are noone. At once everyone and noone, jurors retain the power to bring the Government to its knees. Anonymity means independence. Independence brings a power that renders all their guns and cages useless.
In fact, a person's verdict as a juror is probably the single most perfectly independent decision that person will ever have to make in his or her life. In our day to day lives, we our decisions are inevitably influenced by concerns about others' views of our decision. Maybe you think a project at work ought to go a particular direction, but you are worried about saying so because you think your boss is not going to like your idea, even though your boss is wrong. Every day we make our daily decisions in a complex web of relationships.
But a decision as a juror is as independent as it gets. Your verdict is yours and you don't owe anyone an explanation.