A Jury's Right to Say No

Innocent unless proven guilty. We all know that expression. (You probably learned it as innocent until proven guilty, but in the state of Kansas, we say unless. It is the better word as it does not carry with it the presumption that there will come a time when guilt is proven.)

I’m not sure enough people understand the implications of these words, the true power a jury holds. In truth, the jury is the very heart of our criminal justice system. The jury, and the jury alone, holds the power to convict. If a jury declines to convict, no court, no judge, no prosecutor anywhere in this country can undo that outcome.

There is no criminal case in this country where a jury is required to convict the accused. A conclusion of guilt is only appropriate when the jury that hears the case says it is. There are no exceptions to this rule. If a jury says “not guilty,” that is the end of the matter. A jury never needs to explain or justify its decision.

In the face of a Department of Justice that uses prosecutorial power to target political enemies, be they politicians, activists, or ordinary citizens, jurors are uniquely positioned to prevent that Department from abusing its power. Juries have the right to say no. Jurors must not be afraid to exercise that right.

You may have heard of jury nullification. I am not a fan of that term because I think it undersells the power of the jury. Nullification suggests the jury is doing something against the law, or at least something a little shady. But it is never against the law for a jury to decline to convict. The jury isn’t scoffing at the law when it says not guilty; the jury is embracing the law, the law that puts the final decision in the jury’s hands.

In a government of the people, by the people, and for the people, it stands to reason that the people, in the form of a jury, are the ultimate arbiters of whether the government can label anyone a criminal, can sentence that person accordingly. We elect representatives to write the criminal laws and the sentences, we have processes for selecting the people who will prosecute those laws and the judges who will oversee the trials. But as the ultimate holders of power, we the people reserve for ourselves the power to judge those persons accused of crimes. If the people who have been entrusted with prosecuting the law abuse that power, it is right and just for a jury to reject that abuse. Yes, even if the accused might technically have done exactly the thing the prosecution alleges.

A jury exercising the right to say no is an enormous tool in the fight against creeping authoritarianism. A jury is the last line of defense against weaponized prosecution. Any jury, or individual juror, placed in the position of deciding a case that just doesn’t feel right must not be afraid to embrace the right, the power, to simply say, “No.”