Jury nul­li­fi­ca­tion is about law, not de­fen­dant

The Washington Times Daily - - Editorial -

Once again, jury nul­li­fi­ca­tion has been dis­cussed in a news­pa­per ed­i­to­rial, and once again it is clear the writer does not un­der­stand jury nul­li­fi­ca­tion (“Nul­li­fi­ca­tion by jury,” Com­ment & Anal­y­sis, Nov. 8).

What is does not mean is find­ing an ac­cused per­son not guilty, or dis­re­gard­ing a judge’s in­struc­tions. A jury can find that the state has not proven its case for any rea­son or no rea­son. A find­ing that a per­son is legally not guilty means just that, not that the per­son has or has not ac­tu­ally com­mit­ted the of­fense with which he or she was charged. In other words, the O.J. Simp­son verdict had noth­ing at all to do with jury nul­li­fi­ca­tion.

Un­der jury nul­li­fi­ca­tion, a jury does not find that the state has not proven its case, it finds that the ac­cused is not guilty be­cause the law it­self is void. The O.J. Simp­son jury found the ac­cused not guilty; it did not find that the Cal­i­for­nia law against mur­der was null and void.

We are used to read­ing that an ap­pel­late court has “struck down” (i.e., nul­li­fied) this or that law as un­con­sti­tu­tional. Jury nul­li­fi­ca­tion says that a trial jury has the same right as a higher court to strike down a law it finds to be vague, im­prop­erly en­acted or un­con­sti­tu­tional. Like the nul­li­fi­ca­tion of a law by any court be­low the Supreme Court, the jury’s de­ci­sion would be sub­ject to ap­peal.

The con­cern by le­gal au­thor­i­ties is jus­ti­fied. Un­like ap­pel­late judges, ju­rors are rarely trained in the law, and the power to strike down, say, the law against mur­der, could present se­ri­ous prob­lems if jury nul­li­fi­ca­tion were to be­come an ac­cepted part of the le­gal process. JAMES E. KEENAN Mid­dle­town, Md.

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