The black letter law in Michigan suggests that juries have the power but not the right to exercise jury nullification.[i] Nevertheless, the practice of law is all shades of gray, and the arguments made by lawyers are often in the penumbras of black letter law.
For example, some Michigan cases have indicated that nullification may be argued where nullification is a recognized legal defense. Because a trial judge may exclude a defense attorney from presenting to the jury evidence supporting a defense that has not been recognized by the legislature[ii], the judge can preclude a lawyer from arguing for nullification.
This does not mean that the power of nullification can be taken away from the jury, and a judge cannot explicitly tell a jury that they are precluded from exercising jury nullification. In one Michigan case where a judge told the jury that jury nullification was inconsistent with the recognized power of the jury, the verdict of guilty was reversed.[iii] In support of their reversal, the court indicate that:
Juries are not held to any rules of logic nor are they required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power. An element of this power is the jury’s capacity for leniency.[iv]
The Michigan Supreme Court has also recognized that juries in criminal cases have the power to dispense mercy by returning verdicts less than warranted by the evidence.[v] Furthermore, in criminal cases, the jury’s conscience must pronounce the prisoner guilty or not guilty.[vi] However, the Michigan Supreme Court has also held that, although the jury has the power to disregard the trial court’s instructions, it does not have the right to do so.[vii]
The standard jury instructions are devoid of any instruction that explicitly states that the jury must find the defendant guilty upon a finding of facts which prove every element beyond a reasonable doubt. Instead, the jury is told that their vote should be “in good conscious” and must “be their own.” A jury has the power to bring in a verdict “in the teeth of both law and facts.”[viii] Indeed, it may be said that the Michigan preclusion of directed verdicts in criminal cases is a tacit recognition of the jury’s power to nullify the law.[ix]
In Michigan and around the country it’s clear that the debate over jury nullification is far from over. But if we accept that the jury is a final check in an elegant system of checks and balances, then as we continue to grapple with this issue, we will do well to remember that a runaway jury is far less dangerous to our liberty than is a runaway government.
[i] People v Demers, 195 Mich App 205, 206; 489 NW2d 173 (1992).
[ii] Demers, supra at 207.
[iii] People v. Farley, 2009 Mich. App. LEXIS 2
[iv] See People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980).
[v] People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980); People v Lewis, 415 Mich 443, 449-450; 330 NW2d 16 (1982).
[vi] People v Chamblis, 395 Mich 408, 426-427; 236 NW2d 473 (1975).
[vii] People v Ward, 381 Mich 624, 628; 166 NW2d 451 (1969). See also People v Lambert, 395 Mich 296, 304; 235 NW2d 338 (1975).
[viii] Horning v District of Columbia, 254 US 135, 138; 41 S Ct 53; 65 L Ed 185 (1920).
[ix] Chamblis, supra.