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I think the phrase “jury nullification” is a pejorative. I believe that jurors have the power to not only judge the facts, but that they must also judge the law. Otherwise a State could pass a law that made it a felony to breathe and the only role of the juror would be to evaluate the facts presented at trial. Was the defendant breathing or not? Well then guilty.

That of course is absurd. So jurors who cannot or will not judge the law do in that case is they choose to redefine or ignore the facts. In essence they construct an intellectual lie. Whatever that defendant was doing, it wasn’t “breathing”.

My position when in voir dire is this: My obligation is to fairly hear the evidence and the law in the case. However should I judge that the conduct of the government or the law under which the defendant was charged is clearly contrary to the Constitution, then I am obligated to vote to acquit. I do advocate that the role of the jury at trial is to vote to convict someone who clearly committed a crime and to vote to acquit everyone else. I would rather make a mistake and free a person who is technically guilty than to convict any person who is innocent.

Just because the State defines some action as a “crime” does not make it so, otherwise the State can free itself of the important constraints placed on it by the Constitution and Bill of Rights.

When members of the jury pool understand their powers and their rights as jurors, the jury in essence becomes a counterbalance to excesses and tyrannies of the three branches of government. This is because generally no person can be convicted of a felony without first being judged by the grand jury for the indictment and then by the petty jury at the trial. It only takes a few no votes to thwart government in these circumstances. And sometimes government needs to be thwarted.