A Constitutional Right I'm Not Supposed To Tell You About
As an attorney, the first rule of jury nullification is that you do not talk about jury nullification. The second rule is that you DO NOT TALK ABOUT jury nullification. But this is a blog, not a closing argument, so I will break rules 1 and 2 in the next few paragraphs. Sue me. (Relax, that’s just a figure of speech. You have no case.)
If you’re unfamiliar with jury nullification, it’s a right granted in the Constitution that says a juror is allowed to vote “not guilty” even if he or she truly believes that the defendant is guilty of the accusation, if the juror doesn’t believe that the law criminalizing said act is just. Juries have the power under the Bill of Rights to judge – not just the defendant – but also the judicial and legislative systems.
Simply put, if you think the LAW is bogus, you can vote “not guilty,” even if you’re pretty sure the dude did it.
With the exception of politicians, a huge number of whom are former attorneys, the men and women of our profession are among the most skilled in the world at navigating the land mine fields of language. And yet there is an entire legal issue, a right guaranteed in the Constitution, that we’re not allowed to talk about. Not in court anyway. It is a right that, if more commonly exercised, could have as enormous an impact on the legal and even legislative as most any law that would have a chance to pass.
Is it because the courts and law makers are protecting the People from fast-talking defense attorneys who could fill the streets with dangerous criminals by convincing every jury that laws are merely suggested behaviors? Certainly the very professionals charged with providing vigorous representation to those being called before the courts for various reasons are capable of exercising our highly developed communications skills in a responsible manner regarding the explanation of such a powerful topic as jury nullification. While the Supreme Court did rule in 1895 that jurors didn’t have the RIGHT to be informed of nullification, did this ruling extend to mean that defendants don’t have the right to inform twelve of his peers of the existence of this right?
Is it because it would incite too much vigilante legal justice? Or it would mean a significant shift of power from the system to the citizens?
These are intended, not as rhetorical questions intended to fuel my legal soapbox rant, but rather as questions for you as citizens, potential jurors and advocates to ponder. I only intend to influence you to think, to question, to examine. Now if you’ll excuse me, I need to head to court where I can continue to NOT TALK ABOUT JURY NULLIFICATION.