Criminal Defense Lawyer
One state has defined “[j]ury nullification [a]s the power to dispense mercy by nullifying the law and returning a verdict less than that required by the evidence.” People v. St. Cyr, 129 Mich.App. 471, 473-474, 341 N.W.2d 533 (1983). This essentially means that a jury is deciding to return a verdict of not guilty (or guilty of a lesser offense) even though the jury is convinced beyond a reasonable doubt that the defendant is guilty of the offense charged.
Because the Double Jeopardy clause of the Fifth Amendment to the United States Constitution prohibits the prosecution from appealing an acquittal, all 50 states explicitly or implicitly acknowledge the right of a jury to nullify and return a verdict less than is warranted by the facts of the case and the law of the state. However, this doesn’t mean that a criminal defense lawyer is permitted to expressly ask a jury to nullify.
Most, if not all, states prohibit a criminal defense lawyer from telling a jury about their right to nullify. In fact, most standard jury instructions would suggest to the jury that it has no option but to convict if the facts are proved beyond a reasonable doubt.
Despite this limitation, an experienced criminal defense attorney may be able to effectively present a nullification defense. Many states have a standard jury instruction which explains to the jury that their decision on a particular fact is final (and not subject to review or appeal). This can be an effective way for a criminal defense lawyer to explain to the jury that nobody can ever make them explain why they chose the way they did and nobody can appeal their decision. In that way, they are able to choose what is right based on the facts as they see them and based on what facts they believe are important.
Similarly, many jurisdictions also tell the jurors that they should vote in good conscience. This instruction can be very compelling to a jury if they have heard facts that make a conviction seem unfair or unjust under the circumstances. If a criminal defense attorney has told an effective story during trial about how a conviction would be unjust, jurors may feel compelled to vote their conscience, even if the facts would appear to clearly support a conviction.
Jury nullification is difficult defense and generally not one that should be used if there is another viable defense available. The system is largely set up to avoid jury nullification, so if you have another defense available, you should thoroughly explore it before committing to a nullification defense.
If you’re wondering whether nullification could be a viable defense in your case, you should consult with an experienced criminal law lawyer to explore whether nullification could work for you.