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Let's say I'm part of a jury in a case where I believe jury nullification may be warranted, and that my other jurors may agree with me, and so I suggest it to my fellow jurors. My jurors ask me what would happen if they voted to nullify the verdict and I tell them I can't say for sure, because the legal status of jury nullification is complicated even for the best lawyer, because I'm not a lawyer, and because frankly my knowledge of legal matters is quite haphazard and it's scary to think that the results of a trial and a person's life would depend on my half-remembered understanding of jury nullification. Unfortunately I can't go online to research jury nullification now that I'm a juror so the jury is stuck with my incomplete knowledge as the best information they have to make a decision with.

The other jurors, correctly not trusting me to know what I'm talking about, go to the judge to ask about jury nullification and whether it's an option in this trial. The judge is one who is not a fan of jury nullification and does not want to see it happen. Can the judge flat out tell the jury that they cannot vote to nullify the verdict?

If the judge did so and the jury chooses to nullify the verdict anyways would the fact that the judge forbade them to do so have any impact on what happens from that point forward? Would the jury risk repercussions for nullifying a verdict against the judge's orders?

Finally is there any situation where a jury trying to nullify a verdict could phrase their objection incorrectly such that the judge could take it as a guilty verdict? E.g., if they say "we think you proved the plaintiff did this thing, but we don't believe he should be punished" can the judge rule that they said he was guilty and just ignore the second half?

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  • It is a crime to inform a jury that jury nullification is possible. If a juror tells the judge "A said jury nullification is a thing" then juror A can be dismissed.
    – Trish
    Dec 24 '20 at 17:30
  • 8
    @Trish Is it? I've never heard that before. I admittedly am hardly an expert in the field, but I highly doubt it's a crime (ie juror faces criminal proceedings for doing it). Do you have president for a juror being removed for mentioning jury nullification?
    – dsollen
    Dec 24 '20 at 18:49
  • the charge would be Contempt of Court, Tampering with a jury, see below.
    – Trish
    Dec 24 '20 at 19:18
  • 6
    @Trish That depends on the state. Dec 24 '20 at 23:16
  • 5
    Jury nullification is not illegal any where in the United States. Judges are not required to inform juries of their right, but no crime is committed by performing nullification or informing juries about nullification. Dec 25 '20 at 11:26
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Can the judge flat out tell the jury that they cannot vote to nullify the verdict?

He can but this kind of "jury nullification" makes little sense and is obvious that is not possible. A verdict is rendered by the jury. Once the verdict is rendered, there is no further vote. It would also make little sense for a jury to render a guilty verdict and later have another vote to nullify the previous verdict.

From now one I will refer to jury nullification as we usually refer to it: the jury returns a not guilty verdict, although the jury believes the accused is guilty of the crime (rather than returning a guilty verdict and later nullify it, which is what you are implying here)

A different question would be "can the judge ask the jury to not engage in jury nullification"?

Yes he/she can. A judge can respond that jury nullification is not possible. If the jury convicts, this false information by the judge is generally deemed a harmless error on appeal, and the conviction is upheld

If the judge did so and the jury chooses to nullify the verdict anyways would the fact that the judge forbade them to do so have any impact on what happens from that point forward?

No. Jury nullification is part and parcel of common law, and it could well be part of the "jury trial" granted by the Constitution.

Would the jury risk repercussions for nullifying a verdict against the judges orders?

Only for jury nullification no. They can face repercussions if they lie in voir dire and say that they will follow the law as given to them no matter what, for example.

Finally is there any situation where jury trying to nullify a verdict could phrase their objection incorrectly such that the judge could rule it as a guilty verdict (ie if they say "we think you proved the plaintiff did this thing, but we don't believe he should be punished" can the judge rule that they said he was guilty and just ignore the second half?)

Juries return a guilty/not guilty verdict. They don't return their thoughts to the court ("we think that...."). They simply say "guilty" or "not guilty".

If for some unknown reason they should choose to tell the judge more than what is required from them, jury nullification is still an option of the jury and something that the jury can do, have the right to do, so the judge will not be able to override the jury.

But this is something that should not happen. If the jury wants to engage in jury nullification, they have to tell the judge "not guilty" and nothing more. The jury doesn't have to explain its decision to acquit.

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  • 2
    "If the jury convicts, this false information by the judge is generally deemed a harmless error on appeal, and the conviction is upheld." Why is this so, considering that the false information was the difference between a guilty/not guilty decision?
    – actinidia
    Dec 25 '20 at 7:17
  • 3
    @TiwaAina Despite how raffaem characterizes it, jury nullification isn't a "right", it's a loophole derived from other protections; double jeopardy protections in particular, as it has been held that reconsidering an apparent jury nullification is a new jeopardy (except in rare circumstances, such as if the defendant saw fit to fix the verdict by bribing judge/jurors, say, in which case the first jeopardy was a figment). It's not considered a substantive and impactful error of law to cut off loophole abuse. Indeed it's considered a subversion of law to encourage it. Dec 25 '20 at 7:28
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    @zibadawatimmy jury nullification is indeed derived from forbidding double jeopardy + jurors cannot be held liable for an "erroneous" verdict. To me it is clear that when the founding fathers said "jury trial", this would include jury nullification in it. Before independence, jury nullification was very important in not convicting colony inhabitants for not paying taxes to Britain. But zibadawa is right that you can go to jail if you suggest jury nullification for "tampering with the jury". Dec 25 '20 at 7:38
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    "They can face repercussions if they lie in voir dire and say that they will follow the law as given to them no matter what" How does this work? Isnt it up to the jury to decide guilty vs not guilty? If the jury returns "not guilty" who gets to say "yeah, but we all know he was guilty so you lied under oath"? The jury doesnt justify their decision.
    – Matt
    Dec 25 '20 at 17:38
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    @Hasse1987 sorry, that was a factual error of me. "jury nullification" is certainly not a right of the defendant. It is an option of the jury. Dec 26 '20 at 3:08
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To begin with, jury nullification is not a separate act. It’s not like the jury verdict can be one of “Guilty”, “Not guilty” or “Nullified”.

Instead, a juror says something like “The guy’s pretty sus for sure, but I’m voting not guilty because [insert reason that’s contrary to applicable law]”. Others agree and find the defendant not guilty. To anyone who has not taken part in the deliberation, the outcome is indistinguishable from what would happen if the jury found a glaring hole in the evidence.

Any judicial system where 1) juries exist 2) they vote for whatever they want and 3) they can’t be prosecuted for how they voted will automatically have jury nullification.

[J]urors... go to the judge himself to ask about jury nullification

Exactly this happened in United States v. Sepulveda.

Can the judge flat out tell the jury that they cannot vote to nullify the verdict?

That judge replied:

Federal trial judges are forbidden to instruct on jury nullification, because they are required to instruct only on the law which applies to a case. As I have indicated to you, the burden in each instance which is here placed upon the Government is to prove each element of the offenses . . . beyond a reasonable doubt, and in the event the Government fails to sustain its burden of proof beyond a reasonable doubt as to any essential element of any offense charged against each defendant, it has then failed in its burden of proof as to such defendant and that defendant is to be acquitted. In short, if the Government proves its case against any defendant, you should convict that defendant. If it fails to prove its case against any defendant you must acquit that defendant.

He didn’t really say anything new here, other than declining to answer the question directly and reiterating jury instructions, the official template of which includes the following:

If, after fair and impartial consideration of all the evidence, you have a reasonable doubt as to [defendant]’s guilt of a particular crime, it is your duty to acquit [him/her] of that crime. On the other hand, if, after fair and impartial consideration of all the evidence, you are satisfied beyond a reasonable doubt of [defendant]’s guilt of a particular crime, you should vote to convict [him/her].

Logically speaking, this expressly forbids jury nullification, as it demands that the jury acquit the defendant if and only if they have the reasonable doubt, and nullification is the opposite of that. However, this prohibition is without teeth as there are no consequences for violating it. It isn’t even worded in terms stronger than “duty” and “should”.

If the judge did so and the jury chooses to nullify the verdict anyways would the fact that the judge forbade them to do so have any impact on what happens from that point forward? Would the jury risk repercussions for nullifying a verdict against the judges orders?

A juror can be held in contempt of court for certain actions such as researching something on their own, but they can’t be prosecuted for how they voted.

Finally is there any situation where jury trying to nullify a verdict could phrase their objection incorrectly such that the judge could rule it as a guilty verdict (ie if they say "we think you proved the plaintiff did this thing, but we don't believe he should be punished" can the judge rule that they said he was guilty and just ignore the second half?)

Each juror votes guilty or not guilty. The overall verdict then is either unanimously guilty, unanimously not guilty, or not unanimous (hung jury). Neither the judge nor anyone else is at liberty to switch it from one of those three to something else—regardless of whether the jury for some reason chose to explain their verdict, which they aren’t supposed to do.

To summarize: the judge can flat out tell the jury that they cannot vote to nullify the verdict. The jury is free to disregard this with no repercussions. What will happen on appeal and whether there will be grounds for mistrial is a different question.

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  • A jury may also acquit because even though a defendant violated the statute charged, jurors may have judged that other laws or legal principles should prevail given the particulars of the case. For example, as a general principle, felony convictions should require a stronger showing of criminal intent than misdemeanor convictions. A jury that is aware that a particular crime is a felony might thus decide to acquit someone whom they judged to have done the action negligently, but not deliberately nor recklessly. Unfortunately, some judges prevent jurors from knowing whether...
    – supercat
    Dec 25 '20 at 21:03
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    @supercat Wouldn’t it be a mistrial if the judge failed to instruct the jury as to the level of criminal intent that is essential to the crime in question? Anyway not really relevant to the question. Dec 25 '20 at 21:13
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    @RomanOdaisky Doesn't it say if, not if and only if? Note the distinction between “should” and “must” – that's pretty suspicious to a keen listener.
    – wizzwizz4
    Dec 25 '20 at 21:24
  • 1
    @wizzwizz4 From a layperson standpoint, it does say if and only if, strongly linking one state of mind with one verdict and the other with the other. From a legal standpoint it does not really say anything because it does not change the consequences of any action by a juror. Dec 25 '20 at 22:41
  • 1
    I do note that in the quoted text, the appropriate course of action when there is reasonable doubt is presented as an obligation (must do, shall do, it is your duty to), but the appropriate course when there is no reasonable doubt is presented as highly recommended (should do). The focus seems to be that avoiding wrongful conviction is a higher priority than avoiding wrongful acquittal.
    – EvilSnack
    Dec 25 '20 at 23:25
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Additional consideration: in most jurisdictions, certainly those with remaining strong ties to British Common Law, a judge has the power to set aside a jury verdict. It is very rare, but in a case where a judge views a verdict as so egregiously contrary to the evidence presented as to bring justice into disrepute, she can substitute her own verdict. With this "safety valve" jury nullfication is seen as less of a problem than would be caused by any specific measures to address it.

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  • 1
    My understanding of the US legal system (which is the topic of this question) is that a judge can overrule a guilty verdict but not a not guilty verdict. If this is true then a judge can do nothing about jurry nullification. Do you know if this is or is not the case in the US?
    – Matt
    Jan 3 at 3:26

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