by Derek Gilna
Mark Bennett, a 22-year criminal trial lawyer, argues that responsible citizens have a duty to serve on a criminal jury as a reasoned observer of the trial process — and not as a pawn of a system meant to over-awe them into an emotionally driven conviction.
He also advocates that serving on a jury as an objective individual puts you in a position to practice the time-honored practice of “jury nullification.”
According to that doctrine, “jury nullification” is “finding the defendant ‘not guilty’ regardless of whether the state has proven the accusation beyond a reasonable doubt.”
This practice, he said, is “rooted in the principle that a juror can and should reach whatever verdict her conscience leads her to, and that there is nothing the government, or anyone else, can do to stop her beforehand or punish her afterward.”
“A jury is the entity that acts as the voice of the community, and serving as a juror allows you to contribute to that voice,” he continued. “You may also believe that the law under which the defendant is being prosecuted is an illegitimate use of state power.”
However, he said, neither the judge, the prosecutor, nor the defense counsel will comment on the practice, despite the fact that all jurors serving on both six- and 12-person juries have the power to decide a criminal defendant’s fate regardless of the evidence presented or testimony given. The reason is obvious. All parties have a vested interest in the criminal justice system, but not necessarily in the “justice” part of that equation.
There are elements of American society whose sole contact with law enforcement is limited to minor traffic tickets, but for a significant segment of society, especially in areas inhabited by people of color, interaction with the police can be a daily and dangerous occurrence often resulting in detention and arrest, whether or not individuals are engaged in any criminal activity. A rising tide of hundreds of exonerations for botched or unjustified arrests and prosecutions have eroded many citizens’ blind faith in the American system of justice, perhaps making them more receptive to the concept.
We all know that if a jury fails to convict, the defendant goes free. However, few juries are aware of the fact that they are not obligated to convict, regardless of what the evidence does or doesn’t prove. In the criminal justice system, which generally recycles former prosecutors into judicial positions, and highly-technical rules of evidence together with the reality that most defendants lack the resources to battle the government on equal footing that often prevent a defendant from presenting a robust defense, jury nullification is a powerful weapon to redress the defendant’s relative lack of power.
However, if you reveal your skepticism of the criminal justice system during the jury selection process, it is unlikely that prosecutors will permit you to sit on the jury, and if you express any overt prejudice, you can be stricken from the potential jury pool “for cause.” Jurors are generally questioned by a judge, by prosecutors, and defense lawyers who search for any prejudice, on any subject related to the police, the facts of the case, or any other potentially disqualifying attitudes. If you do not convince the questioners that you are not prejudiced, you will not be permitted to serve on the jury, and you will not be able to exert any influence on the jury or its verdict. “Keep your mouth shut” and “act ordinary” is the best way to be picked for a jury, according to Bennett.
Once on the jury, despite the statements of the judge or the lawyers in the case, you are free to weigh the evidence and use your argumentative and analytic skill to convince your fellow jurors of the righteousness of your opinion of guilt or innocence. In a federal criminal trial and in all states but one, a jury verdict must be unanimous. Thus, even if you cannot convince the other jurors of the righteousness of your position, your one vote means there will be no conviction—a mistrial followed by a retrial, but perhaps not. And, you might even be able to convince them to find the defendant not guilty. In any event, you will have struck a blow to redress the inherent imbalance of power in criminal proceedings.
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