Jury nullification, part one

Sometimes a jury will violate its instructions. This is simply a fact.

The judge is supposed to instruct the jurors on the law, the jury is supposed to deliberate on the facts of the case and apply those facts to the instructions in order to reach a verdict, but it doesn't always happen that way.

What you'll decide about the rightness or wrongness of this matter depends upon your broader ethical/political principles. You might fear "runaway juries" as sources of chaos. You might believe that if the laws are made by a process you consider legitimate (a democratically-elected legislature) and the judge's instructions on them are accurate, then any independence a jury shows must by definition by illegitimate.

On the other hand, you might think the jurors themselves a more reliable vox populi than that elected legislature. Consider a drug bust. The police officer testifies, "I found a bag of controlled substance X on the body of the suspect." The suspect testifies, "No, the officer planted the X on me -- I'm innocent." This is a classic dispute over fact, not law. The judge instructs the jury, "If you find that the accused had X when he was first approached by the officer, then you must find him guilty."

Inside the jury room, someone may say, "X isn't really a big deal. I've done some X myself." Someone else, "we really don't need to be sending our community's young men away to prison for matters like this." They're not arguing on the factual question nominally submitted to them -- they're arguing for nullification.

As I say: this happens. It is a fact, not a theory. No informed person disputes that. How often does it happen? That's hard to say.

From a policy point of view, one hotly contested question is: should lawyers for the defendant be allowed to ask the jury to nullify? Should the appeal "yes, our client possessed X, but we ask you to acquit anyway," be permitted by officers of the court?

I'll speak more of that, and of the contemporary litigation that brings it to mind, tomorrow.