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The Law You Won't Be Told

On a Jury you know your options: guilty, or not. But there's another choice that neither the judge nor the lawyers will tell you -- often because they're not allowed to and also it might better if you don't know.

This video will tell you that third choice, but be warned: simply watching may prevent you from ever serving on a jury -- so this is your last chance to hit the pause button before you learn about...

Jury nullification: when the defendant is 100% beyond-a-reasonable-doubt guilty but the jurors also think he shouldn't be punished. The jury can nullify the law and let him go free.

But before your on your next jury and yell 'Null! Booya!' at the judge you should know that just talking about jury nullification in the wrong circumstances can get you arrested. Though a video such as this one, simply acknowledging the existence of jury nullification and in no way advocating it is totally OK. And, while we're at it:

(CGP Grey is not a lawyer, this is not legal advice it is meant for entertainment purposes only. Seriously, guy, don't do anything in a court of law based on what an Internet Video told you. No joke.)

So why can't you do this? It's because nullification isn't in the law †, but exists as a logical consequence of two other laws:

First: that juries can't be punished for a 'wrong' decision -- no matter the witnesses, DNA, or video proof show. That's the point of a jury: to be the decider.

and

Second: when a defendant is found not-guilty, that defendant can't be tried again for the same crime ‡.

So there are only two stated options: guilty or not, it's just that jury nullification is when the words of the jurors don't match their thoughts -- for which they can't be punished and their not-guilty decision can't be changed.

These laws are necessary for juries to exist within a fair system, but the logical consequence is... contentious -- lawyers and judges argue about jury nullification like physicists argue about quantum mechanics. Both are difficult to observe and the interpretation of both has a huge philosophical ramification for the subject as a whole.

Is nullification the righteous will of the people or an anarchy of twelve or just how citizens judge their laws?

The go-to example in favor of nullification is the fugitive slave law: when Northern juries refused to convict escaped slaves and set them free.

Can't argue with that.

But the anarchy side is Southern juries refusing to convict white lynch mobs. Not humanity at its best.

But both of these are juries nullifying the law.

Also juries have two options where their thoughts may differ from their words. Jury nullification usually refers to the non-guilty version but juries can convict without evidence just as easily as they can acquit in spite of it.

This is jury nullification too and the jurors are protected by the first rule, though the second doesn't apply and judges have the power to overrule a guilty verdict if they think the jurors are… nt the best. And, of course, a guilty defendant can appeal, at least for a little while. Which makes the guilty form of jury nullification weaker than the not-guilty kind. Cold comfort, though.

Given the possibility of jurors who might ignore the law as written, it's not surprising when picking jurors for a trial, lawyers -- whose existence is dependent on an orderly society -- will ask about nullification, usually in the slightly roundabout way:

"Do you have any beliefs that might prevent you from making a decision based strictly on the law?"

If after learning about jury nullification you think it's a good idea: answer 'yes' and you'll be rejected, but answer 'no' with the intent to get on the jury to nullify and you've just committed perjury -- technically a federal crime -- which makes the optimal strategy once on a jury to zip it.

But This introduces a problem for jurors who intend to nullify: telling the other 11 angry men about your position is risky, which makes nullification as a tool for fixing unjust laws nation wide problematic.

(Not to mention about 95% of criminal charges in the United States never make it to trial and rather end in a plea bargain, but that's a story for another time.)

The only question about jury nullification that may matter is if jurors should be told about it and the courts are near universal † in their decision: 'no way'.

Which might seem self-interested -- again, courts depend on the law -- but there's evidence that telling jurors about nullification changes the way they vote by making evidence less relevant -- which isn't surprising: that's what nullification is. But mock trials also show sympathetic defendants get more non-guilty verdicts and unsympathetic defendants get more guilty verdicts in front of jurors who were explicitly told about nullification compared to those who weren't.

Which sounds bad, but it also isn't difficult to imagine situations where jurors blindly following the law would be terribly unjust -- which is the heart of nullification: juries judge the law, not solely evidence.

In the end righteous will of the people, or anarchy, or citizen lawmaking -- the system leaves you to decide -- but as long as courts are fair they require these rules, so jury nullification will always be with us.

Footnotes

† As with any legal topic, check your local rules and regulations. The video is about Jury Nullification in the United States, but of course, in the US things are still different in each of the states. For example, New Hampshire (live-free-or-die) passed a law explicitly allowing judges and lawyers to inform juries of their ability to nullify laws.

‡ This is the 'double jeopardy' clause -- made famous by its wildly inaccurate movie representation. Each instance of a crime counts as a new crime, so robbing a bank and being found not-guilty on a technicality does not give you a rob-the-bank-again-for-free card.