The law is a fascinating subject, and, even if you are not a legal scholar, there are always criminal trials making headlines in the news.  There are flamboyant or famous Defendants, some whom we’ll never meet on the street, but we know of their actions, or perhaps I should say “alleged actions” and the media makes us well aware of all the sordid details and titillating tidbits to help us make up our minds whether or not that person is guilty long before the final verdict is rendered.

When a criminal matter is on the brink of trial, the attorneys must scurry around getting all their ducks in a row long before the jury is seated and opening statements are made.  The defense attorney must coordinate all the paperwork and evidence secured during the pendency of the matter on his client’s behalf,  subpoena and line up any witnesses, and prep their client on an almost-daily basis.

Before a jury may be selected, each attorney has a series of questions they may pose to potential jurors.  The term for the preliminary examination of prospective jurors is referred to as “voir dire” and at this time the attorneys essentially briefly summarize the case then screen the jurors to determine their qualifications to serve as a juror.  They don’t want jurors who may be biased before the trial even commences.  They do want jurors who will give the attorneys their rapt attention throughout the trial, make thoughtful notes and intelligent conclusions based on the evidence presented.

Once the jury is seated, the presiding judge will swear in the jurors and instruct them on how they will approach and evaluate the evidence they are about to hear.  Then the trial will begin. You’ve probably seen movies or TV shows about trials and you’ve seen how a trial generally progresses.  At the conclusion of the evidence presented, the judge will once again speak to the jury to give them instructions on interpreting the evidence and reaching a verdict.  The reading of the jury instructions by the judge is referred to as “charging the jury” and these jury instructions become the roadmap for the jury to guide them to their decision based on the evidence presented during the course of the trial.  After the instructions are read, the jury is whisked away to begin deliberations.  In some high-profile civil or criminal matters, deliberations could take weeks and sometimes the jury is sequestered in a hotel, isolated from their family members and friends and television and radio to risk hearing the chatter about the matter from the media which would taint the verdict.  In most cases, however, jurors do indeed return home to their families daily while deliberations are taking place.

We’ve always been taught to believe that the jury will listen to the facts as presented by both sides, and, only after listening to the all the evidence presented, and following the judge’s instructions, can the jury arrive at the very best decision regarding the fate of the defendant(s).

The jury process

It would be a fair assessment to say that it takes many arduous hours of preparation to get a matter ready for trial.  After the expenses associated with evidence gathering, extensive file review and witness prep, one would like to think that the jury has paid attention and absorbed every piece of evidence, every nuance by the parties and are indeed ready to abide by the judge’s instructions and deliberate.  But, did you know that jurors are permitted to follow their consciences, even if that means that their final decision neither follows the law, nor the judge’s instructions?  Though this is not a fact we learn about while watching TV or movies about famous trials, nor do we read about in our school textbooks, jury nullification does exist.  Jury nullification, best defined as making a verdict null and void, is a constitutional doctrine which allows juries to acquit criminal defendants who are technically considered “guilty”, but their perception is that they do not deserve punishment, based upon their conscience.  Jury nullification is best defined as when a jury reaches a verdict contrary to the judge’s instructions as to the law.

Vote with their conscience

In “charging the jury” or giving a series of jury instructions to the jury, the judge requests the jury to heed the evidence presented and use it in conjunction with testimony presented by the respective attorneys and witnesses in formulating their conclusion.  Judges do not typically inform jurors of their right to nullify, because if they did there might be a different outcome for many verdicts; they merely reiterate the prepared standard jury instructions prepared by the prosecutor/government and the defense attorney(s).

It is a dispute among legal scholars about whether jurors should have the right to nullify a verdict.  There are critics who feel jurors should not be permitted this right and they should reach a decision based on evidence/facts alone.  The other faction feel strongly that if jurors were told in advance of the commencement of trial of their right to nullify a verdict, they would act upon this Constitutional right, and follow their conscience and not merely the instructions the judge has read to them.

What do you think?  If you were a criminal defendant would you want the jury to make a decision based on its conscience or after weighing the evidence?  What about if you were a top criminal attorney in New Jersey?  Could your blood, sweat and tears that went into the defense of your client be cast aside because jurors ignored your evidence and voted with their conscience?