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.