The possibility of jury nullification is an inevitable consequence of how the US justice system is set up. There is no way around it. It’s a property of the system, not a intentionally designed feature.
Put another way: For juries to have meaningful power, jury nullification has to be a possibility.
I also think it’s illusory to believe that jury nullification is in any kind of way a meaningful escape. It’s a fluke, nothing more.
From the same article[1] I quoted in another reply:
Theophilus Parsons, first Chief Justice of Massachusetts, explained:
The people themselves have it in their power to resist usurpation, without an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered a criminal by the general government, yet only his fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.
Or, as Patrick Henry put it:
Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off. This gives me comfort ” that as long as I have existence, my neighbors will protect me.
[1]: http://www.counterpunch.org/2003/02/05/a-guide-to-surviving-...
Unfortunately, it's not. It's just a great side effect of the right to a trial by jury.
In the American legal system, the modification of laws is left to the legislature. A jury can express its displeasure with a law by nullifying, but this has no legal import, since a different jury could easily convict. Thus, the primary method of expressing displeasure in a law...is to express displeasure in a law (by calling your local legislator).
Jury nullification is part of law. Design is the part that dictates that you, as a defense attorney, cannot inform juries of their power. The prosecutors certainly won't.
Every American jury has the power* to ignore the law and make their own verdict if they decide that's how justice would be served.
Last year, it became part of New Hampshire law to protect the right of the defense to inform juries of their power:
http://reason.com/blog/2012/06/29/new-hampshire-adopts-jury-...
*edit: changed "right" to "power"
A. Fully advocate for their client by informing the jury of their right to nullify in open court, especially if that nullification would involve disregarding mere administrative law in favor of a no-frills reading of constitutional law.
B. Refrain from informing the jury to avoid risking their relationship with the court or bar, but inform their client of this conflict of interest so that the client may interject partial self-representation if prudent.
C. Avoid informing the client of their rights or this major conflict of interest, but pretend they're still being fully represented.
Whether this reflects on your honest or competence I do not know, but I do not trust anything you claim. Former defense attorney or not.
It was not intentionally designed into common law, but when the Constitution specified when trial by jury should be used, it was widely understood that this was the power that juries had. And this was approved of by the founding fathers. For instance Thomas Jefferson said, "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution."
Therefore jury nullification may be an accidental property of common law, but it is NOT an accidental property of the US system of law.
