Judges lie to juries every day about juries’ nullification power. “You must follow the law,” they say.
The truth is that jurors have the right not to follow the law in a criminal case. If they think the law is wrong (that the conduct shouldn’t be illegal, or that the law’s punishment is too harsh) they can acquit the accused and there is nothing the government can do about it. Similarly, if a single juror thinks the law is wrong, she can hold out for acquittal and nobody can make her change her personal moral judgment. Jurors can’t be punished for nullifying the law, and the government can’t appeal an acquittal.
Given that the official line in the courtroom regarding jury power is — and probably always will be — untruthful, what can we as defenders do about it?
One thing we can do is take every opportunity to educate the public about jurors’ rights to vote their consciences. Write letters to the editor. Mention jury nullification every time you talk to the press or give a speech to a community group. Slip it into every conversation you have:
“Did you know that judges lie to juries in criminal court every day? Do you know why the criminal juror is the most powerful person in the criminal justice system? Did you know that jurors don’t have to follow the law?”
“Dude, I just asked if you preferred paper or plastic!”
We could even print it on the backs of our business cards: “If you’re chosen to serve on a jury, remember that the government can’t force you do anything against your conscience. If you think the law is wrong, find the accused Not Guilty. There’s not a damn thing they can do to you.”
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