Jury Nullification a Constitutional Right?

Today’s New York Times contains an op-ed by an ex-prosecutor/current law professor saying that jury nullification (the practice of voting not guilty when the jury disagrees with the criminal charge even when guilt had been proven beyond a reasonable doubt) is a “constitutional doctrine.”

If you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.

A constitutional right? That’s news to me. While I’m willing to accept that jury nullification can be acceptable under certain circumstances, I’m not aware of any provision in the Constitution that enshrines nullification as a right.

The writer seems to suggest that nullification is indeed a right since we have the right of free speech; voting not guilty, even where guilt is proven, is therefore an exercise of free speech. That’s a stretch, in my view.

In practice, at least in New York, potential jurors are asked by the judge, “If you disagree with the law as I give it to you, but the People still prove the defendant’s guilt, can you convict?” If a potential juror says he cannot, he is dismissed from service. If jury nullification were a right, as the writer of the op-ed contends, the judge could not examine potential jurors in this way.

7 Comments

  1. andrew tasker says:

    In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial.

  2. Joe Keck says:

    I refer to your last statement, “If jury nullification were a right, as the writer of the op-ed contends, the judge could not examine potential jurors in this way.”

    Hey pal, wake up! Judges have been violating the Constitution for decades and getting away with it. To say a judge “could not” anything is at best, naive, and at worst, just downright stupid.

    No offense.

  3. Lee M. says:

    And it is attorneys like this who contribute to the fallacy that a Juror MUST judge only the facts of the case, and not the law behind the trial and encourage the practice of the suppression of the Right of Jury Nullification. Remember, the Bill of Rights starts out by saying that just because a Right is not enumerated within it, does not mean we do not have that Right. Or are you waiting for Government permission to breathe too???

  4. Mr. Mcgoo says:

    For a petit jury I’m not sure where it is found as a constitutional right but it is 100% a power of the jury though like a lion the court tries to control the lion who may not be aware of its strength.

    As for the Grand Jury, yes, I would say its a constitutional right to nullify. Grand Jury is not part of the judicial branch, it’s a separate constitutional entity whose historical purpose was to check the power of the Monarch and nullify the law when it deemed a prosecution unjust.

    The idea of jailing someone for pointing out that either jury can nullify in practice is crazy. Ssshh, don’t tell them and hope they don’t figure it out.

  5. George says:

    I’m sorry to say that I disagree with the statement made by the author of this article. Jury Nullification (or what passed as Nullification during the framing of the Constitution) was absolutely a Power that the Founding fathers wanted Jurors to have. In Fact in the NYS Constitution it is EXPRESSLY stated in cases of Libel and in The Bill of Rights states that:

    “and the jury shall have the right to determine the law and the fact.”

    From a Purely Legal standpoint Libel can be part of almost any court case both Civil & Criminal these days (With the preponderance of falsified police reports)

  6. cliff says:

    I have to say i agree with George. The judges and lawyers have been breaking the law for years and the people have become so complacent with what the state governments do , they automatically think it’s the law, when in fact it’s called “color of law” which is not law at all. Even if the judge won’t tell the jurors they have the power of nullification, the defendant can tell them. He can also insist on a jury that has the power to nullify. I know it’s a touchy subject right now with law makers but,a jury does have the right to judge the law as well as the case. Also if a judge refuses to inform a jury of their right to nullification it violates the due process law and that would be grounds for a mistrial.

  7. Kyle says:

    To understand why a practicing attorney would take such a stance, one needs to look no further than their (un)official handbook, the “Corpus Jurus Secundum.”

    Volume 7, Section 4 – Attorney & client: The attorney’s first duty is to the courts and the public, not to the client, and wherever the duties to his client conflict with those he owes as an officer of the court in the administration of justice, the former must yield to the latter.”

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