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Function of Juries & Jury Nullification | 17 Oct 2012

Liberty and the Law: The Case for Jury Nullification

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Liberty and the Law: The Case for Jury Nullification

Trial by jury may hold the key for unlocking a powerful check on the limits of government. In the United States, and many other common law nations, jurors possess the power to judge both the matters of fact (i.e., whether or not the defendant broke the law) and the matters of law (i.e., whether or not breaking the law in question is worthy of punishment). In other words, jurors may decide to find a defendant “not guilty” even though they may very well find the defendant to be guilty of committing the crime in question. The purpose of such a declaration is to rebel against a law which the jury believes is unjust. This action not only sends a message to government officials, legislators and judicial figures alike, but it also has the profound impact of saving the future wellbeing of the defendant, who may be guilty of committing a crime, but the law which was broken was an unjust law to start with.

What is unique about this check on government is that it is derived directly from the populace and not through the legislature. Jury nullification allows citizens to walk the careful line between populism and legislative tyranny. While long-term legislative reform may be necessary for the long-term shift towards a free society, reform is a slow and arduous process and may fall victim to perversions. As insights into public choice theory and democratic research shows legislatures are fallible and capable of creating unjust laws in order to appease special interest groups or out of pure ignorance (see Tony Cotzias’ post “Anyone Still For Democracy?”). Jury nullification obviates the obstructive and often slow hand of reform and works as a short-term cure for a larger ill. Similarly, unlike legislative reform, which often requires that one is a political insider, and unlike judicial reform, which requires similar specialization, jury nullification is carried out by the average citizens that make up a jury of one’s peers. This is not only true in theory but also in practice. Nullifying juries have been made up of blue-collar workers and white-collar businessmen alike, and rarely, if ever, include experts in common law. Jury nullification truly is the common man’s path around injustice.

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