Why Jury Nullification Is The Criminal Justice System Dirty Little Secret.

by Kansas Criminal Defense Attorney, Vincent Rivera

What is jury nullification?

Not only do you have the ability to decide whether somebody is guilty or not guilty, you also have the ability to decide whether or not the law should even apply to them.

You have the ability to say, "I believe this person is guilty, but I think this law is BS, so I'm not going to apply it to them."

It's called jury nullification, and it's the system's dirty little secret because when you report for jury duty, no one's going to tell you about it. The prosecutor's not going to explain it to you. The judge isn't going to explain it to you, and the defense attorneys aren't allowed to tell you that you can find someone not guilty even if they are guilty. It's one of the reasons juries are so powerful in our country because not only do they have the power to decide guilt or innocence, they have the power to decide the very law itself.

Examples of jury nullification

It's like a check and balance against the legislature. Your legislator did not call you before they went out to vote on a bill to get your opinion. But through jury nullification, you have the power to decide what the law is.

Let me give you a few examples of how jury nullification could play out in real life.

Let's say you're on the jury and the case is possession of marijuana, and you believe that marijuana should be legal. Let's say the facts of the case prove beyond a reasonable doubt this guy's guilty. He possessed marijuana, no doubt about it. Through jury nullification, you can decide that even though he's guilty, he's not guilty because you believe that marijuana should be legal.

Another situation, let's say it's a battery case. And let's say the victim had it coming. This victim antagonized, tormented, terrorized, talked all kinds of smack, and they deserved the beating that they got. Now in that scenario, it's not self-defense, and the defendant is guilty of battery. But the jury can decide, "Yeah, he's guilty of battery, but this other guy had it coming. And for that reason, I'm going to find him not guilty."

Or consider the example where you've got a parent who has a sick child, and the parent breaks into the pharmacy, steals some medicine. Now, in that case, that parent is clearly guilty of burglary and theft, but you can still find them not guilty because they did it for the right reasons.