HERE'S THE SECRET EVERY JURY NEEDS TO KNOW

I've got a secret to tell you. It's about jurors. Jurors called for
duty on criminal cases have a secret power.

It's a secret because in a trial neither the judge nor the lawyers
are allowed to tell the jurors this power exists. But it does. It's
called "jury nullification."

It doesn't mean the jury gets nullified. It means the jury can
nullify a law or nullify the application of a law to a specific
case. Jurors can use this power if they believe a law is unjust or
that the application of the law to the case would be unjust.

Juries exercised this power to acquit Henry Morgentaler on abortion
charges in the 1970s and 1980s. At that time legal abortions had to
be performed in a hospital and only after approval by the hospital's
therapeutic abortion committee.

Morgentaler, however, performed abortions outside hospitals and
without any committee approvals. He was charged and faced four
criminal trials.

As a matter of law he had no defence, but the juries refused to convict.

This power to nullify the law is dangerous. Using it, a white jury
could refuse to convict a white person in any case involving a
non-white victim. I'm sure that's happened. Also, if juries exercise
this right then they are saying they know better. They, in effect,
become law makers usurping the role of the government and prosecutors.

Now you know why lawyers and judges won't tell jurors they have this
right -- we're afraid they might use it.

TRIAL JUDGE

Not only do we not tell jurors that they have this right, we tell
jurors they are to take the law as explained to them by the trial
judge, the strong implication being there is no right of jury nullification.

This issue came up recently when Grant Wayne Krieger of Alberta was
charged with unlawfully producing marijuana. Krieger has multiple
sclerosis and uses pot for medicinal purposes. He also admitted to
supplying the drug to other sick people.

The trial judge believed a conviction was the only possible result
and directed the jury "to retire to the jury room to consider what I
have said, appoint one of yourselves to be your foreperson, and then
to return to the court with a verdict of guilty."

When some jurors balked the judge said "(i)t is apparent that some
of the members either didn't understand my direction this morning,
that is that they were to return a verdict of guilty ... or they
refused to do so."

After the jury came back with a guilty verdict, Krieger appealed.
The Supreme Court of Canada ruled the judge erred in trying to force
the jury to convict. The judge had wrongly taken away the right of
jury nullification.

At one time judges abhorred this power so much they imprisoned,
starved or fined jurors who refused to follow their instructions to
convict. Yet, this jury nullification power has served an important
function throughout modern history. Jurors have refused to enforce
fugitive slave laws, seditious laws prohibiting criticism of the
government, laws prohibiting labour strikes, even prohibition laws.

USEFUL TOOL

Is there a need for this power today? With perfect laws and a
perfect system of justice juries wouldn't need this power. But we
don't have a perfect system and jury nullification can still be a
useful tool in addressing abusive prosecutions and laws.

The real question for me is whether defence lawyers should have a
right to tell juries they have this power. If there is no such right
then we have to depend on jurors getting their knowledge from
television -- a Law & Order episode discussed the issue -- or
newspapers. That doesn't seem right. It makes for an uneven system of justice.

I'd like to clear up a misconception that has arisen from a column I
wrote last month about judicial immunity. The error rate for judges
is nowhere near 33%. The reversal rate in a random month I chose was
about 33%, but the same column pointed out that most lower court
decisions are never appealed. Therefore the actual error rate --
assuming that a successful appeal means there was an error -- is
much lower than 33%. The actual number is impossible to determine.

My point was that whatever the number, there are too many errors and
that any system with judicial immunity should provide a remedy to
genuinely aggrieved litigants.