Isn’t it absurd that a prosecutor and judge will tell a jury to find a defendant guilty even if jury members think what the defendant did — possessing or selling an illegal drug, for example — should be legal? Doesn’t such a restriction on jurors fly in the face of the historical power of jurors to judge both the facts and the law instead of being just another tool for enforcing the many volumes of statutes, regulations, and case law that define criminal offenses in America?
In a new outstanding video presentation, Future of Freedom Foundation President Jacob Hornberger answers these questions and more, presenting the history of American jury nullification dating back to British law as well as the still exercisable power of a juror to decide a defendant is not guilty because the juror disagrees with the criminalization of the defendant’s actions.
As Hornberger explains in his video presentation, all it takes to defeat the government’s effort to fine and incarcerate is for one juror to adamantly stand by the conclusion that a criminal defendant is not guilty. This is because a conviction and the resulting punishment can be imposed only if the jury members unanimously decide the defendant is guilty. While Americans often feel powerless when confronted by a government bent on criminalizing nonviolent human activities, in a jury one steadfast individual can defeat the leviathan.
In addition, if a jury unanimously finds a defendant not guilty, then that is the final word; the government cannot even seek a retrial. Hornberger explains:
Now what’s interesting about this is that the jury is not told that they have this power. They clearly have the power because, if they acquit a guy because they don’t like the law, there’s nothing that can happen to them. The judge can’t send them to jail. And keep in mind that the verdict is final — the verdict of acquittal. That is to say that the state cannot appeal that verdict. They can’t go into the court of appeals and say ‘Hey, reverse what the jury did.’ It’s absolutely final. The judge can’t reverse it. He can’t overturn it. Once that jury says “not guilty,” that person, that defendant walks out of that courtroom a free person. He’s immediately released from the clutches of the state — the judge orders his release, and he walks out of that courtroom a free man or a free woman. That’s the power of trial by jury.
The power of jury members to nullify the law in a particular case is one of the reasons Hornberger says the trial by jury guaranteed in the Sixth Amendment to the Constitution is “one of the bastions of a free society and one of the protective devices that the American people have against the tyranny of their own government.” Thus, not surprisingly, with the US government — as well as state and local governments — often focused on exercising tyrannical powers, government agents take great efforts to prevent the education of potential jurors regarding their jury nullification powers, to keep people willing to nullify off of juries, and to intimidate jurors not to nullify.
Watch here Hornberger’s complete jury nullification overview, in which you can also hear Hornberger relate an engaging story of a Laredo, Texas attorney successfully presenting in court a stealth argument for a jury nullification-based acquittal in the 1960s:
Read here about how jury nullification saved Doug Darrell from up to three and a half years of imprisonment. In 2012, a New Hampshire jury decided to acquit Darrell after being informed by Darrell’s defense attorney and the judge that the jurors could exercise jury nullification. Darrell was lucky to have his case heard in one of the few American courtrooms where his lawyer would be allowed to make such an argument and the judge would offer such a jury instruction.
