Will jury nullification convict more innocents?

I am concerned that juries, if told that they do not have to follow the law, might actually convict an innocent person by convicting them of something not against the law, by giving a defendant a stiffer penalty than the law allows, or not following the rules of the court in determining guilt or innocence. Essentially, I am worried that juries not following the law will result in the injustice of innocent people being convicted.


You share the same concern for civil liberties that advocates of jury power do. We work to educate jurors of their power to vote their consciences to prevent innocent citizens from being punished. If you care about civil liberties, then you should join us in working for fully informed juries because they will decrease convictions of the innocent, not increase them. Why?

Jury power only works in the direction of mercy. Any sentence given by a jury to a convict cannot be greater than that allowed by law. Such an act would violate the prohibition of ex post facto (after the fact) laws in Article I, Section 9 of the U. S. Constitution and Article I, Section 16 of the Texas Constitution.

Juries can only rule on a case put before them. Before a jury hears a case, a law has to be on the books, a law enforcement officer has to make an arrest, a prosecutor has to decide to bring charges, and a grand jury has to rule that sufficient evidence exists to proceed with a indictment. Juries do not get to charge a defendant with a crime different than that brought before them.

It is true that a jury could decide that evidence for the charge brought before them is insufficient, but that they "know" the defendant is guilty of something else, thereby voting to convict of the charge brought before them, anyway. Juries can do that today.

It is hard to see how information from a defense attorney to a jury that they have the power to vote their conscience if they think an injustice is being done will lead to a jury convicting without evidence or to not follow rules of procedure designed to protect the defendant's rights.

But, just in case a criminal defendant or their counsel see it differently, the Jury Nullification Act proposed by Lone Star FIJA allows the defendant and/or  counsel to decide whether to inform jurors of their power to vote their conscience.  This allows defendants in criminal trials the choice to NOT inform juries if they somehow think a particular set of circumstances might with an informed jury indeed might create a heightened risk for the defendant.

Rule of Law and Jury Nullification

I believe in a nation of laws, not of men. Won't telling juries that they can ignore the law lead to a nation of men, not of laws?


The underlying concern of those who originally coined the phrase "nation of laws, not of men" was liberty and justice.  Isn't your concern really to make sure that some men don't have arbitrary and capricious power over you or others?

The main way our nation became one of laws, not men was to prohibit ex post facto laws in the Constitution. That way, no government official or ruler can arrest someone and charge them with something no one knew was a crime when they did it. Of course, the other due process Constitutional protections such as Grand Juries, prohibition against self incrimination, etc., also are legal protections against arbitrary power.

Jury power to acquit on conscience is another protection from the sword of government.  Jury power is another process of law review designed to protect liberty and justice.

The purpose of fully informed juries is also liberty and justice.

Both jury power and a nation of laws are designed to protect liberty and justice, so the two concepts cannot be at odds.

The "laws, not men" concept protects us before a law is written. Jury power protects us after bad law is written.

One thing that "laws, not men" definitely does not mean is that we should mechanistically or robotically apply law, no matter how unjust or inhumane the outcome. The very existence of the jury system was designed to put the common sense and humanity of the people in the process of administering law.

Our highest commonly held political value in this nation is not reverence for law at any cost. Our highest political values are liberty and justice for all. The law is a means toward the end of liberty and justice, and conscience is our guide toward that end.

We have coined a term for those who think the law is the end-all and be-all, higher than liberty or justice - LAW WORSHIPERS.

Law worshipers worship a false god - man's law (statute law). Our Founding Fathers talked in the Declaration of Independence about "the Laws of Nature and Nature's God". It is that higher law and the unalienable Rights to Life, Liberty, and the Pursuit of Happiness which our system should place at the top of our political values hierarchy.

Changing v. Nullifying Bad Law

I have always heard that if you don't like a law, you should change it. And you should obey it until it is changed. Doesn't nullification undercut that idea?


If we want to increase respect for the law, we have to make sure that our laws are respectable and broadly agreed to.

As a criminal trial juror, you are not faced with the question of whether you have a duty or right to violate an unjust law or not.  You are asked whether your conscience allows you to participate in unjustly convicting and punishing someone who has violated an unjust law.

And we are asking whether we should keep the truth from jurors about power to refuse to participate in perpetuating tyranny.

Would you participate as a juror with the government in unjustly punishing a fellow citizen? Besides, how many bad laws have you personally been responsible for repealing? Surely, you don't believe that all of the laws on the books past, present, or future have been, are, or will be just. It is incredibly difficult to repeal a law. And if you do manage to fight the good fight on a single law, thousands more new laws will be passed in the meantime.

Special interest pressures and the disposition of legislatures always lean to pass new laws, but rarely to repeal bad ones.

Another response to the assertion that we should not use jury power to stop bad law is, "Why?" Why shouldn't we use every power we as citizens have to achieve liberty and justice. The engines of government growth are very powerful. We need as much countervailing power as possible. The Founding Fathers knew we would need this power. We are simply reclaiming a lost tool that they believed in.

Jury power is the true American tradition of what is proper. Those who deny it are rejecting tradition, not supporting it.

The framers believed in jury nullification because it gave the people a fighting chance to keep man's law in synch with God's law (sometimes called natural law).  It is a way of helping us keep laws that are respectable.

Chaos, Harmony, and Jury Nullification

Won't telling jurors of their power and right to acquit based on conscience create lawlessness and chaos?


England and America both informed their jurors about their powers from the late 1600's until the late 1800's. Do you think those were chaotic, (aka "anarchic") times?

Maryland and Indiana have explicit constitutional statements mandating that jurors be informed of their powers. (Indiana: "all criminal cases whatsoever, the jury shall have the right to determine the law and the facts." Maryland: "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.") Do you think of Maryland and Indiana as chaotic places?

We can reach true chaos in our country. That could happen if enough people become alienated from our government to engage in violence against it. If people believe voting is not a solution to their grievances, jury power is one of the few tools left short of violence for citizens to influence their government.

A person who doesn't think the process for creating law is fair, the law itself is fair, or the process of enforcing it is fair is someone ready to think violence is a solution to his problems. Choking off jury power can lead to true chaos and lawlessness, while informed juries throughout our nation can put government in touch with the will of the people, thereby producing harmony.

Double-Edged Sword or Shield?

I can see how jury power can protect some people from injustice, but isn't telling people about their power really a double edged sword?


Jury power is not a sword. It is a shield against the sword of government.


It is possible for a jury to err by letting someone go free who deserves to have the sword of government used on them. But, our criminal justice system was designed on the belief that it is better to let some criminals go free than it is to jail the innocent.

Commitment to restoring the jury system to the way the framers envisioned by informing jurors of their power to acquit based on conscience is a commitment to a process of law, not necessarily to any predetermined outcome. It may be that some laws which you think are right and proper will not be supported by enough of the community to achieve convictions from fully informed juries.

Commitment to jury power is putting trust in the citizens of your community that they will do what is right more often than not. Jury independence is a profoundly democratic institution in that it puts power in the hands of the people. It is a republican institution in that it protects individual, natural rights.

The alternative to putting your trust in the citizens is to trust the elite who control the government to always act in the interest of the people.  Our system was designed to put the people - not the elites - in charge.  Jury nullification is an important tool toward that end.

Other Names for Jury Nullification?

Are there other names for jury nullification?


Jury nullification is also known as jury independence, jury discretion, jury veto, or jury referendum.

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  • Tom Glass
    published this page 2021-02-18 14:44:08 -0600