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.”
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 characteristics:
- 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 sympathy.)
- 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.