Jury Nullification: the foundation

An IllAdvised Opinion on Jury Nullification, and not the last

Ok, so I want to talk about jury nullification, but I need to be clear: there can’t just be one post on the subject. The subject is complex and varies from issue to issue. Arguments against jury nullification represent one of the most fundamental aspects of injustice in our society and so can’t be dealt with in one mere post.

So, this post will deal with one foundational issue. Every jury trial is a form of jury nullification.

Don’t get me wrong, they aren’t (most of them) very good forms of jury nullification. There is a lot of depth to the issue that most jury trials don’t even touch (and some of them aren’t even allowed to touch). But the very fact of a trial by jury represents a form of jury nullification… because that is the point.

Let’s be very clear, no one likes jury trials except novelists, journalists, and the like. The system hates jury trials. Here you have professional government investigators (the police), professional government accusers (the prosecuting attorneys), professional government deciders (judges), etc… all of these professional government people… and jury trials mess that whole thing up.

Now, let’s be clear: the professional government people do their best to make sure that they mess it up as little as possible. They hedge the entire system about with rules and warnings and lies in order to keep the jury as much in its place as they possibly can, but sometimes, in the end, the jury breaks out of its box and succeeds in actually nullifying, but every single time they at least force the system out of its little box.

Now before I go on, let me reiterate what I have said before: jury nullification is the point. Like so many other aspects of our entire legal system, juries are meant to be a check and a balance. They are meant to introduce regular people into the system as a check against the untrammelled power of the rest of the system.

Notice the words I used in describing the system, ‘professional government…’. The entire rest of the system, sometimes even including the defence attorney, is ‘professional government’. If the jury was taken out of the system, you would have the professional government investigators reporting to the professional government prosecutors who would bring the case to the professional government decider, who would turn the prisoner over to the professional government punisher… what could go wrong with that?

Seriously, the mere fact that those two words repeat themselves over and over demonstrates that any problem that involved either ‘professionals’ or ‘government officials’ would tend to be very skewed in such a system. Both ‘professions’ (professionals, professional rules, etc) and ‘government’ would tend to get protected, reinforced, and advanced by such a system.

So, the mere fact that they are forced to include some non-professional non-governmental actors in the system provides a (small) check.

It also explains all of the rules and explanations and instructions. The professional governmental types have to preserve their system at all costs; thus they very helpfully instruct the jury at all times what they must do, how they must behave, etc etc. They spend a lot of time castrating and hoping that the gelding will not be fruitful. That the jury won’t do what the jury is there to do… cast shade on their professional, governmental system.

We don’t have trial by jury in the United States. The professional, governmental actors have assured us of that. But we have a remnant. And even that remnant is, mostly in small ways but every time, jury nullification.

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