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Jury Nullification as a Cure for Prosecutorial Overreach

by Anthony Accurso

An article published by seeks to educate the public about the history of jury nullification and how reversing statutes and case law that prevent juries from knowing a defendant’s possible sentence could help curb prosecutorial overreach. 

Jury nullification is the term applied when a jury refuses to convict a defendant despite sufficient evidence of guilt. Juries are rarely told that this is even an option (standardized jury instructions often do not include language about it), but its purpose goes to the heart of the reason for empaneling a jury: to seek justice, not merely to obtain a conviction. In times when prosecutorial overreach is rampant and political solutions are not forthcoming, jury nullification can be an effective tool for a community to reject laws and punishments that it deems unjust. 

Unfortunately, defendants and their attorneys are often barred from informing juries about applicable mandatory minimum sentences. The U.S. Court of Appeals for the Second Circuit has held that a trial court may, with good reason, inform a jury of the potential sentence, but “it is not the proper role of courts to encourage nullification.” Even this attitude is enlightened compared to most jurisdictions, which entirely bar defendants from informing juries of the consequences of a conviction. Because such information can undermine a prosecutor’s goal of obtaining a conviction, district attorneys will often lobby at state capitols against well-informed juries. 

Jurors, however, are not mere bystanders. They are crucial members of a jury trial, whose constitutional purpose is to impose community oversight on the justice system. With the current debates about mass incarceration and criminal justice reform, jury nullification is an overlooked feature of our system that can provide for direct accountability to local communities. Juries should be educated about their powers, and reforms should not overlook the power of legislatures or grassroots ballot initiatives to provide juries with sentencing information. 

Judge Thomas Wiseman of Tennessee wrote, “The government, whose duty it is to seek justice and not merely a conviction … should not shy away from having a jury know the full facts and law of a case.” 



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