Secret Power of Juries – Brief Synopsis
Publisher: James Lorimer & Co., Toronto 2013
The secret is out. Jurors are now told by Gary Bauslaugh about their rights and perhaps with the publication of this important book, juries will now know they have the right to do what the law sometimes fails to do — deliver justice.
Morris Manning, QC, CS, JD; defense lawyer for Henry Morgentaler
How independent are juries in coming to their verdicts? How constrained are they by the law? What happens if a jury refuses to find an obviously guilty defendant not guilty?
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The answers to these questions are clear but not widely known. Juries are completely free to return any verdict they wish to return. Juries are not constrained in this by the law. There is no penalty for coming to whatever verdict the jury wishes to come to.
Coming to a verdict which is at odds with the letter of the law is called jury nullification. Juries can, in effect, nullify the law. A related idea is that of jury independence: juries, in regard to their verdicts, are free of the law and of judicial instruction.
Jury nullification is not a frequent occurrence, but arises in cases where the law seems at odds with justice. The most famous case in Canada was that of Henry Morgentaler, who was tried four times for conducting abortions in the 1970s and 80s when this was clearly illegal. There was no question that Morgentaler had conducted abortions in defiance of the law; he publicly admitted to having conducted thousands of them and even conducted one on television. But none of his four juries would convict him.
Why don’t more people know about this power of jury nullification? Most judges want juries to follow the law and render verdicts accordingly, and they do everything they can to suppress the possibility of juries acting independently of the law. That is understandable: judges are agents of the legal system and their job is to make the system work. So they correctly emphasize the law in their instructions to juries. We ought not to expect them to do otherwise.
It would seem reasonable, then, that defence lawyers could tell juries that they have this right. But in Canada lawyers are prohibited from mentioning the possibility to juries. It is all a big secret, and as such it is not available to most juries. If they do not know about this power they cannot use it. The result is that most Canadian defendants are blocked from having the benefit of an independent jury, which some argue is a violation of the Charter of Rights and Freedoms.
This book looks at famous examples of jury nullification, both positive and negative ones, and then examines in detail the arguments for and against jury independence and nullification. The book ends with some suggestions for jurors, should they find themselves in a situation where their consciences seem at odds with law.