JURY NULLIFICATION: what prosecutors and judges don't want the public and prospective or current jurors to know

       When a citizen of our country is charged with a crime by federal or state prosecutors, there is a crucial check standing between the accused and the full might of the government along with the pitiless, inherent imbalance of power in criminal proceedings in general: the jury. Trial by jury is seen as the truth-seeking process to determine guilt or innocence. The criminal justice system, though, is stocked with former prosecutors now in judicial positions, along with highly technical rules of evidence that most jurors couldn't possibly comprehend. Taken together with the reality that most defendants lack the resources to battle the government on equal ground, which often prevents a defendant from presenting a viable defense, a jury of one's peers is the last safeguard between the defendant and a tyrannical government.

       Judges instruct juries before they deliberate that they have a duty to follow the law as instructed by the court—this, of course, is misleading—and furthermore omits the jury's power to nullify which has been characterized as an aspect of the jury's role in representing the community, a check on overbroad, unjust, or improperly applied laws, and a necessary mechanism for civil disobedience. During the course of a trial, prosecutors and judges strive to conceal that "[w]hile juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so." Quoting United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996); see also United States v, Carr, 424 F.3d 213, 219-220 (2d Cir. 2005)("Nothing in our case law begins to suggest that the court cannot also tell the jury affirmatively that it has a duty to follow the law, even though it may in fact have the power not to.")(emphasis added).

       The common law jury has the absolute power to nullify, that is, act as judge of the law and the facts and render a verdict based on what it thinks is right. "Jury nullification" is defined as:

"A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness."

       Quoting Black's Law Dictionary, 989 (10th ed 2014). Some examples of a jury's use of nullification may (1) result from a belief that the conduct at issue should not be criminalized, or, under the circumstances, should be legally defensible; (2) that the prosecutor's actions in investigating the defendant were excessive or outrageous; (3) that the law was extended or misapplied against this defendant because of his membership or association with a group continually harassed and targeted by over-zealous law enforcement; (4) that the crime victim(s) were in actuality the true instigators, or unbelieving; (5) that the defendant's conspirators who gained immunity to testify deserved to be prosecuted instead; (6) that the defendant's political goals or safe-guarding himself (and/or his friends and family) in violating the law are sympathetic or, even if not, were pursued by him with admirable integrity; and (7) that a guilty verdict will create racial strife more disturbing to the rule of law than an undeserved acquittal.

       Jury nullification is also a consequence of "the great flood of exonerations" and "glaring truth that some prosecutors cheat and even break the law. It has been proved, repeatedly, that prosecutors across the U.S. have (1) concealed evidence that would benefit the accused; (2) fabricated evidence that would convict the accused; (3) made false statements to judges, juries and defense attorneys; (4) offered perjured testimony; (5) cut sleazy deals with jailhouse informants who will testify to anything in return for leniency; (6) employed junk-science 'experts' who mislead jurors; and (7) intimidated witness." Quoting John Grisham, THE WALL STREET JOURNAL, Consequences for Unethical Prosecutors, A16 August 13, 2018.

       Juries have a right to send out questions during their deliberations to a trial judge requesting clarification concerning "the law on jury nullification." See e.g., United States v. Sepulveda, 15 F.3d 1161, 1189-1190 (1st Cir. 1993). In United States v. Bunchan, 626 F.3d 29, 33 (1st Cir. 2010), the trial judge said to the jury:
"So, Ladies and Gentleman, let's turn to how you go about your business. As I told you, you don't have to follow my instructions anymore; in fact, that's the critical part of this. We expect you to, but, then, we send you into a room, we close the door, and we can't tell whether or not you're doing what we ask you to do."
(Id.). In the end, courts have long recognized the undisputed power of the jury "to set an accused free for any reason or for no reason," see supra, 15 F.3d 1190, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justifies the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by their decision.