Jury nullification
Jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury believe the defendant to be guilty of the charges. In cases involving child pornography or sex with minors, judges or defense attorneys have sometimes sought to make the jury nullification option more evident to jurors or to provide them with information that might tend to make them want to nullify. In the Pabon-Cruz case, the judge noted:[1]
| “ | the average juror might well not remotely imagine that advertising child pornography not only carries a harsher penalty than actually delivering it, but that the penalty is a mandatory ten years in prison, even for a defendant who is little more than a child himself.
But this is an argument for giving the jury more information, not less. As the parties are well aware, the Court was persuaded by that argument, and proposed to give precisely such an instruction. Unfortunately, the Court of Appeals at the government's urging issued a writ of mandamus forbidding such an instruction, concluding that to do so would encourage forbidden jury nullification. See United States v. Pabon-Cruz, No. 02-3080 (2d Cir. Oct. 11, 2002). I continue to believe that this was a mistaken conclusion. This Court forbade the defense to argue nullification, and proposed to give (and gave) to the jury the usual injunctions against such nullification, adding only a pale sentence advising the jury of the maximum and minimum prison terms available for each offense. Unless one believed that the jurors, or substantial numbers of them, would find the penalties morally repugnant, it is difficult to understand how this simple information could be perceived as an "invitation" to the jury not to do its duty. (Tr. 22.) It is at least equally likely that knowing of a mandatory penalty might discourage jurors from "compromising] in an improper fashion," as the government put it (Tr. 22), by strengthening a doubtful juror's resolve to face the "difficult" duty "to hold out conscientiously for acquittal," 519 U.S. at 187, 117 S.Ct. 644, rather than to yield in the expectation that the judge could soften any injustice by the exercise of sentencing discretion. |
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Punch & Jurists Weekly Newsletter notes, "Anyone who believes that the Federal anti-child pornography laws are not directed at thought control should read this decision."[2]
