Andrew Napolitano – The First Jury Nullification

4 Responses to “Andrew Napolitano – The First Jury Nullification”

  1. CodeSlinger Says:


    The concept of jury nullification – namely, that a jury can refuse to convict, no matter what the facts of the case or the letter of the law may be – is absolutely fundamental to jurisprudence.

    Without it, the law becomes a coldly inhuman axiomatic system, which is necessarily devoid of any such concept as justice.

    Nullification is the process by which the jury judges the law itself. If the jury finds the law to be unjust, it can simply refuse to apply it.

    And then there’s Canada…

    Technically, Canadian juries have the ability to nullify, but Canadian judges refuse to acknowledge that they have a right to do so.

    Worse, the concept of nullification is not taught in Canadian schools, and Canadian defence attorneys are specifically prohibited from informing juries that they may nullify the law.

    In the rare cases when Canadian juries attempt to nullify, Canadian judges almost always manage to bully them into convicting. And when the jury nullifies anyway, the Crown simply appeals as many times as necessary to get a conviction.

    The one and only counter example I could find is the case of R. v. Morgentaler, in which the crown finally gave up after being repeatedly thwarted by jury after jury for a decade.

    • xanthippa Says:

      Yes, CodeSlinger!


      That is why I am trying to let people know about this extremely important aspect of jurisprudence!

  2. CodeSlinger Says:


    I found another example.

    In 2010, Captain Robert Semrau was charged with second degree murder and court martialled for administering a coup de grâce to a mortally wounded Taliban soldier. The jury refused to convict.

    This is a perfect example of a situation in which the defendant was technically guilty, but a conviction would have been a travesty of justice.

    Crown prosecutors, being bureaucrats, lack any shred of human compassion. By training and inclination, they are incapable of telling the difference between a crime and an act of mercy.

    And it’s precisely this that juries and their power to nullify the law exist to guard against.

    It’s interesting that the Semrau and Morgentaler cases both happened in Quebec – where they speak French, which lends itself better to precise expression than English.

    In French, the verdicts a jury can return are “coupable” or “non coupable.” Strictly speaking, these translate to “culpable” and “not culpable,” as distinct from “guilty” and “not guilty.”

    Thus, in French, the very words used by the jury to express its verdict implicity acknowledge that a defendant can be guilty and yet not culpable.

    And that is the whole point behind jury nullification.

    It is the final reality check whereby the formal rigidity of the law is brought into some semblance of consistency with the complex and paradoxical actuality of the human condition.

    • xanthippa Says:

      Interesting point about the linguistics, CodeSlinger!

      As a matter of fact, when Vigna sued Ezra Levant for defamation, he did so in French, even though the complained of words were published in English. While it did not occur to me then, I have been thinking about it later and I think that had the trial been held in English, the outcome may well have been different.

      Precisely because some words do not translate accurately from one language to another.

      One complained of terms, which was found to be defamatory, was the word ‘fib’. As in, Ezra Levant said the Mr. Vigna had ‘fibbed’ about something. Vigna said that as a lawyer, he cannot be acused of lying and went on to say that fib means a lie. Of course, all of this was being argued in French. I don’t know if there is a direct translation of ‘fib’ into French, but Vigna was definitely translating the word as ‘lie’, which is not entirely accurate: the words have very different colouring.

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