Jurors and the Right to Nullify

At USA Today, Professor Glenn Reynolds has a piece entitled "Nullifying juries more interested in justice than some prosecutors":

If you are a member of a jury in a criminal case, even if you think the defendant is guilty of the crimes charged, you are entirely free to vote for acquittal if you think that the prosecution is malicious or unfair, or that a conviction in that case would be unjust, or that the law itself is unconstitutional or simply wrong. And if you do so, there’s nothing anyone can do about it.

Judges and prosecutors know this. But they don’t want jurors to know it, which is why we occasionally see cases like this one, in which jury-information activist Mark Iannicelli was arrested and charged with “jury tampering” for setting up a small booth in front of a Denver courthouse labeled “Juror Info” and passing out leaflets. Putting up a sign and passing out leaflets sounds like free speech to me, but apparently Denver District Attorney Mitch Morrissey feels differently.

The broad powers of jurors to prevent unjust prosecution has a long and storied history.  As Matthew R. Christ wrote of ancient Greek jurors: "That jurors have a power akin to that of the gods is explicit when Aeschines calls upon both to rescue him from his legal difficulties."[1]  Or as the Greek orator Demades put it, "Since I have myself fallen victim to the full hatred of the orators, I seek help from you [the jurors], just as I do from the gods."



[1] Christ, Matthew R., “Helping and Community in the Athenian Lawcourts,” in Ralph Rosen, et al., eds,  Valuing Others in Classical Antiquity (Brill 2010).

Category: 

Tag: 

By: