Jury nullification is the concept of jurors ignoring the law and rendering a verdict based on which side the jury thinks should win, even if the verdict is contrary to the evidence and law.

This recent Washington Post article covers an advertising campaign that promotes jury nullification. The article states:

The billboard is part of a growing national campaign to encourage jurors who disagree with a law, or think a punishment is too harsh, to vote for acquittal. Kirsten Tynan of the Montana-based Fully Informed Jury Association, whose name and Web address is included on the billboard, said the nonprofit group generally challenges crimes it calls “victimless,” such as vandalism by graffiti or gun possession. 

James Babb, a Philadelphia-based graphics artist who organized a fundraising campaign to put up the billboard, said he raised $3,000 in about a week through Facebook and other ­social-media sites. He said he is concerned about laws that he thinks are too restrictive. 

“People are going to jail for weed,” Babb said. “Things are getting so weird. There needs to be this final safeguard to protect us from a tyrannical government.”

The advertisement claims that jurors should vote their conscience and don’t have to obey the juror’s oath.

I’m not sure people going to jail for weed is a new thing, but that’s not my point.

The point is that jurors ignoring the law and letting the stoner go because weed should be legal is wrong and taints the justice system. This is another example of why the justice system needs to reform how it instructs juries. I most recently described how jury instructions work in this post.

The problem with respect to jury nullification is that we don’t tell the jury what the law until the end of the trial. In voir dire at the start of the trial lawyers and the judge typically ask jurors if they can follow the law. Only perceptive jurors looking for an out on jury service say no.

And why would a juror say he can’t follow the law when she hasn’t even been told what that law is? But after the judge reads the jury instructions, the judge never asks: “now that I’ve read you the law, is there anyone who can’t follow it?” Instead, the proceeding moves straight into closing arguments by the lawyers. Then the jury goes back and deliberates its verdict, with no oversight of whether they actually follow the law in reaching the verdict.

This is why so many lawyers pay so little attention to jury instructions during trials. Many lawyers believe that many jurors are picking a winner without regard to applying the law to the facts. Few lawyers–if any–would contend that this does not happen to some extent.

Picking the winner without regard to the jury instructions may not be the type of blatant jury nullification hi-lited by the Post article, but it is just as wrong as far as the justice system working the way that it should. Juries should reach the right verdict for the right reasons. That would happen more if we reformed the jury system to improve jury instruction procedures.

Wing-nuts advertising for jury nullification indicates that this issue is not going away. It’s going to get worse. The question is how long the justice system ignores the issue. “Forever” is one of the possibilities.