I’ve got a secret to tell you. It’s about jurors. Jurors called for duty on criminal cases have a secret power. It’s a secret because in a trial neither the judge nor the lawyers are allowed to tell the jurors this power exists. But it does. It’s called “jury nullification.” It doesn’t mean the jury gets nullified. It means the jury can nullify a law or nullify the application of a law to a specific case.
Jurors can use this power if they believe a law is unjust or that the application of the law to the case would be unjust. Juries exercised this power to acquit Henry Morgentaler on abortion charges in the 1970s and 1980s. At that time legal abortions had to be performed in a hospital and only after approval by the hospital’s therapeutic abortion committee.
Morgentaler, however, performed abortions outside hospitals and without any committee approvals. He was charged and faced four criminal trials. As a matter of law he had no defence, but the juries refused to convict.
This power to nullify the law is dangerous. Using it, a white jury could refuse to convict a white person in any case involving a non-white victim. I’m sure that’s happened. Also, if juries exercise this right then they are saying they know better. They, in effect, become law makers usurping the role of the government and prosecutors.
Now you know why lawyers and judges won’t tell jurors they have this right — we’re afraid they might use it.
Not only do we not tell jurors that they have this right, we tell jurors they are to take the law as explained to them by the trial judge, the strong implication being there is no right of jury nullification.
This issue came up recently when Grant Wayne Krieger of Alberta was charged with unlawfully producing marijuana. Krieger has multiple sclerosis and uses pot for medicinal purposes. He also admitted to supplying the drug to other sick people.
The trial judge believed a conviction was the only possible result and directed the jury “to retire to the jury room to consider what I have said, appoint one of yourselves to be your foreperson, and then to return to the court with a verdict of guilty.” When some jurors balked the judge said “(i)t is apparent that some of the members either didn’t understand my direction this morning, that is that they were to return a verdict of guilty … or they refused to do so.”
After the jury came back with a guilty verdict, Krieger appealed. The Supreme Court of Canada ruled the judge erred in trying to force the jury to convict. The judge had wrongly taken away the right of jury nullification.
At one time judges abhorred this power so much they imprisoned, starved or fined jurors who refused to follow their instructions to convict. Yet, this jury nullification power has served an important function throughout modern history. Jurors have refused to enforce fugitive slave laws, seditious laws prohibiting criticism of the government, laws prohibiting labour strikes, even prohibition laws.
Is there a need for this power today? With perfect laws and a perfect system of justice juries wouldn’t need this power. But we don’t have a perfect system and jury nullification can still be a useful tool in addressing abusive prosecutions and laws.
The real question for me is whether defence lawyers should have a right to tell juries they have this power. If there is no such right then we have to depend on jurors getting their knowledge from television — a Law & Order episode discussed the issue — or newspapers. That doesn’t seem right. It makes for an uneven system of justice.
– Article from the Edmonton Sun, Sunday August 15th