Judges don’t tell jurors about the power to nullify the law.
And they don’t allow lawyers to explicitly encourage jury nullification. A
defense attorney can’t, for example, tell jurors to disregard the law in
order to acquit the defendant. A judge would quickly silence an attorney attempting
to argue, “The defendant was only trying to protect his community against a
poisonous waste dump—you should find him not guilty even if you think he
technically broke the law.”
(For more about the concept of jurors ignoring the
law, see Jury
Nullification. And for information about what lawyers can and can’t argue,
Argument in Criminal Trials.)
But defense attorneys can sometimes—albeit
rarely—present their cases in
ways that lead jurors to consider nullification on their own. Cases that result
in nullification often don’t involve violence and often have one or more of these
- Strong moral convictions. The defendant acted out of strong moral
convictions shared by jurors. For example, a defendant might commit trespassing
out of a desire to close a toxic waste dump, and jurors might believe the goal
to be legitimate.
- Sympathy. The evidence portrays the defendant in a sympathetic
light. For example, jurors might sympathize with a defendant who broke the law
trying to close a toxic waste dump only after a number of lawful efforts. (But in
order for a judge to allow it, sympathy evidence must be relevant to a valid
defense. Judges don’t admit evidence simply for its tendency to arouse
- Government hostility. Evidence arouses jurors’ hostility toward the
government. For example, jurors may be hostile to police officers who were too
aggressive when arresting someone engaged in a peaceful but illegal protest.
- Disagreement with the law. Jurors disagree with the law. For instance,
jurors might refuse to convict a defendant of possession of marijuana for sale
because they believe the drug should be legal.