Passage A

Jury nullification occurs when the jury acquits the defendant in a criminal case in disregard of the judge's instructions and contrary to the jury's findings of fact. Sometimes a jury's nullification decision is based on mercy for the defendant, sometimes on dislike for the victim. Juries have also sometimes nullified when the defendant engaged in civil disobedience and the jurors agreed with the actions. While instances of jury nullification are probably few, the problems created by the jury's power to nullify are great.

First, we do not know how the power is used. Because juries are not required to and typically do not explain their verdicts, it is impossible to say how often nullification occurs. This means that we also do not know how often juries use this power for evil ends rather than for good ones.

Second, juries often have insufficient evidence to make a reasoned nullification decision. Evidence that might inform such a decision, such as a defendant’s past brushes with the law, usually is not admitted at trial because it is irrelevant to the technical question of guilt or innocence.

Third, jurors are not legislators. We have an elected legislature to pass laws and elected or appointed judges to interpret them. The jury is unelected, is unaccountable, and has no obligation to think through the effect an acquittal will have on others.

Reasonable people can disagree on the proper reach of the criminal laws. Nevertheless, the place for them to disagree is in public, where the reasons for revisions of the laws can be scrutinized and debated.

Passage B

Police and prosecutors have discretion to decide which violations of the law to pursue and which to overlook. Even with such discretion, however, these officials can sometimes be overzealous. In such cases, the jury can act as a safety valve and use its own discretion to decide, for example, that a case is too trivial or the circumstances too extenuating for the case to result in a conviction.

When a jury nullifies because it does not believe a law should be applied to a particular defendant, the jury can also be viewed as assisting the legislature. Legislatures create general laws both because they cannot foresee every variation that may arise, and because legislators often have competing views about what should be included in legislation and so must settle for broad language if any laws are to be passed.

Similarly, when a jury nullifies because it believes a law is unjust, it also performs a useful function vis-à-vis the legislature, namely indicating to the legislature that there may be a problem with the law in question.

It may happen that a jury will be persuaded to nullify by factors they should ignore, but such instances of nullification are likely to be uncommon. For a jury to agree to nullify means that the case for nullification must be so compelling that all twelve of the jurors, despite their different backgrounds and perspectives, nevertheless agree that nullification is the appropriate course of action.