First Circuit opinion aims to stamp out what’s left of jury nullification

Until now, in Federal Court the law has acknowledged a jury’s power to nullify a verdict, but has also held that a criminal defendant has no right to instruct the jury that they have such power.

But because of this new case, now the trial judge has the power to actively mislead jurors about the vast scope of their power. The First Circuit has just wrote that judges may issue an affirmative instruction to the jury that they have a “DUTY TO RETURN A GUILTY VERDICT” if they find guilt beyond a reasonable doubt. By using the language of “duty” it creates a false impression in the deliberation room that if a juror votes on his or her conscience alone, he or she is in dereliction of some duty. This creates an atmosphere where the hold-out “not guilty” juror will face even greater scorn and contempt from his or her fellow jurors. The net result is a tipping of the scales for the prosecution. Though I doubt many will notice it, this opinion just took another gnashing bite out of the accused’s right to a fair jury trial.