Recently a man in Big Rapids was arrested after handing out pamphlets outside of a courthouse. Apparently the pamphlets were from the Fully Informed Jury Association and explained or advocated for jury nullification.
Jury nullification occurs when a jury returns a verdict of “not guilty” despite believing that the defendant is factually guilty of the offense charged. It is the result of the jury concluding that the offense charged is immoral or the application to the defendant is unfair or improper.
In Michigan is is well settled that juries have the “power to dispense mercy by returning verdicts less than warranted by the evidence.” People v St Cyr, 129 Mich App 471, 474; 341 NW2d 533, 534 (1983). Supreme Court has also held that, although the jury has the power to disregard the trial court’s instructions, it does not have the right to do so. People v. Ward, 381 Mich. 624, 628, 166 N.W.2d 451 (1969). See also People v. Lambert, 395 Mich. 296, 304, 235 N.W.2d 338 (1975).
Because of how our system is arranged, juries have tremendous power. Their findings are largely beyond appellate review. Factual determinations by a jury are virtually impossible to attack. Accordingly, they have the power to nullify and render a not guilty verdict even when the evidence is overwhelming. However, they don’t have the right to do so. This means that citizens accused of a crime don’t have the right to an instruction regarding the jury’s power to nullify. It also means that lawyers cannot directly ask a juror to nullify or to find contrary to the evidence.
In practice, juries certainly nullify. Some times they do it when you want them to. Some times you’re surprised by it. I can think of several verdicts over the years that were clearly (and properly) the result of nullification. In each case, I think that the jury reached the correct outcome because we told the client’s story in a way that showed how the prosecution of the client was unjust.
Trying to build a nullification strategy is not the place to start in most cases. Instead you should start looking at legal and factual defenses. If there is not a solid defense, then you should look at whether the government has misbehaved and whether there is a way to demonstrate that to a jury in a manner that might help them to reach the conclusion that the prosecution is unjust.
