Juries are almost always told that it is their job to judge the facts of the case before them and it is only up to the judge to interpret the law. But that is wrong. Juries can judge both the facts and the law and have the right to acquit someone of a crime if they feel that the law under which the person was convicted is an unjust one, even if the facts of the case clearly show that the person is guilty. Such a result is known as ‘jury nullification’.
Many prosecutors and judges have been hostile to jurors being told about this right. For example, prosecutors charged an 80-year old retired Penn State chemistry professor Julian P. Heicklen with jury tampering merely because he stood on the sidewalk outside a courthouse and handed out leaflets to people telling them about the nullification right. A prosecutor said that his actions constituted “a significant and important threat to our judicial system” and opposed his request for a jury trial because of fears that he would tell the jurors of this right. But federal judge Kimba S. Wood dismissed the indictment on free speech grounds.
Despite this deliberate hiding of information about this right, jurors have often on their own initiative taken it upon themselves to refuse to convict people for crimes that they don’t think warrant punishment, such as pot smoking, even if they clearly violated the law.
I have long been a proponent of the practice of jury nullification. (If you insert the keywords ‘jury nullification’ in the above search box you will find my previous posts on this topic.) Hence I was encouraged that the state of New Hampshire has passed a law that allows defense attorneys to inform jurors of this right. The new law states that “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”
This should be adopted nationwide.
Update: I wrote this in the comments but will also include here a little background on jury nullification.
Juries have always had the right to acquit for any reason. Juries that are hopelessly bigoted on an issue may acquit people whom they know have committed the crime and there is nothing that can be done about it. So jury nullification does not add to this particular problem.
The benefit of jury nullification is that it enables responsible juries that think that a law is bad to acquit. Otherwise they would feel forced to convict on the facts, even if they felt the law was unjust.
It is because of jury nullification that we have some of our basic rights, such as the freedom of the press and assembly. Jury nullification also worked during the abolitionist movement when juries refused to convict people charged with harboring runaway slaves, although the law was clear. They felt that the law was unjust and let people who harbored slaves go free.
The history of jury nullification is quite fascinating and my earlier posts on this topic gives some of the details.