From the Keene Free Press
Jury Nullification: Your Power to Overturn Unjust Laws
Thursday, 23 February 2006
By Steve Villee
Has this ever happened to you? You're called for jury duty, and you end up serving on a case where the evidence makes it clear the defendant broke the letter of the law. But yet you feel strongly the defendant hasn't done anything morally wrong. You consider the law itself unjust.
What you may not know is that in this situation, you can vote to acquit the defendant. If the other jurors agree, the final verdict will be not guilty. This is known as "jury nullification", because the jury effectively nullifies the law, at least in this case. The judge might try to say you're not allowed to do this, but the fact remains you have the power. Jurors aren't required to explain the reasons for their verdict, and the judge can't legally overturn a verdict of not guilty from the jury. If you're concerned about how your neighbors or colleagues might react, you can let them presume you just had some reasonable doubt about the facts.
Jury nullification has a long and respected history, often being viewed as a community's last line of defense against unjust laws. In 1670, when William Penn was charged with speaking against the official religion of England by delivering a Quaker sermon, the jurors refused to convict him even when the presiding justices ordered them to find him guilty. Jury nullification played a significant role in the resistance to the Fugitive Slave Act of 1850 and the National Prohibition Act of 1919.
In order for jury nullification to bring about social change, juries need to keep nullifying a particular law over and over. Eventually, prosecutors will get the message and stop prosecuting violations of that law. But what causes this kind of repeated jury nullification Two key ingredients are awareness of the power to nullify and a regional political leaning.
Clearly, the power to nullify doesn't do much good if jurors aren't aware of it. An organization known as the American Jury Institut (also called the Fully Informed Jury Association, web site
http://www.fija.org) is working to educate the American public about the power to nullify. This group also lobbies for state legislation to recognize the right of juries to judge the law in addition to the facts. So far, four states (Georgia, Indiana, Maryland and Oregon) have such provisions in their constitutions. In New Hampshire, Rep. Dick Marple and others have tried to get a bill passed regarding informed juries, most recently in 2005 with House Bill 530.
To see the significance of a regional political leaning, consider the usual argument made against jury nullification: "If you think a law is unjust, you should lobby the legislature to repeal it." But what if a certain region has a high concentration of people who disapprove of a particular law, even though overall the law has enough popular support that it can't be repealed? As a hypothetical example, suppose New Hampshire House Bill 1713 (restricting the sale of pseudoephedrine base drugs such as Sudafed) has enough support statewide that it is passed. Now suppose it turns out most people in Cheshire County feel the law is unjust. If a local pharmacy owner in Cheshire County is charged with selling someone more than his monthly quota of Sudafed, and if the case goes to trial, it will be heard in the Cheshire Superior Court in Keene, and the jury will be composed of people from Cheshire County. You can see that if the jurors are aware of their power to nullify, there's a fair chance they will do so.
Of course, compared to the rest of the country, New Hampshire already has a regional political leaning toward smaller government and greater individual liberty. The Free State Project recognized this leaning, and is working to enhance it. As more like-minded people move to New Hampshire, jury nullification will become more and more relevant, not so much for the state court system, but for the federal district court in Concord. There are federal laws against carrying a firearm near a school, or making too many cash deposits into your bank account. But someday, New Hampshire jurors may be predisposed to nullify such laws.
How will the judge feel about you as a juror voting to acquit because you disagree with the law? In New Hampshire, it seems to vary from one judge to the next. Some judges have no problem with it, and even go so far as to inform jurors of their power to nullify. But other judges don't like the idea of juries making an end run around the legislature, so they work actively to prevent it.
In the latter case, where the judge wants jurors to decide only the facts and not the law, you may face an ethical dilemma. During the voir dire process, the prosecuting attorney may ask questions designed to reveal whether you consider the law unjust, or he may ask whether you have received any literature about fully informed juries. Depending on your answers, the judge may allow a challenge for cause, excusing you from the jury. Thus, complete honesty during voir dire might cost you your power to nullify. Even after the testimony is finished and you retire with the other jurors to the deliberation room, if you are open about the fact that you feel the law is unjust, another juror might decide to notify the judge.
One final remark: like anything else, jury nullification can lead to a perversion of justice. The trial of O.J. Simpson and the trial of police officers in the beating of Rodney King are two examples often cited of jury nullification gone awry. Regardless of whether these two cases are valid examples, the potential is there, so do consider carefully all the relevant facts and circumstances before making any decision to nullify.
Last Updated ( Friday, 10 March 2006 )
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