Jury nullification

Jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury believe the defendant to be guilty of the charges. In cases involving child pornography or sex with minors, judges or defense attorneys have sometimes sought to make the jury nullification option more evident to jurors or to provide them with information that might tend to make them want to nullify.

Pabon-Cruz

In the Pabon-Cruz case, Judge Gerald E. Lynch was blocked by the appellate court from making the jury aware of the minimum and maximum penalties for child pornography offenses. He noted that if the defendant had been charged with having sex with a 12-year-old, he would have faced only about five years, rather than the ten years prescribed by federal law: "This leads me to the rather astonishing conclusion that Mr. Pabon-Cruz would have been better off molesting a child." He pointed out in a subsequent opinion:

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the average juror might well not remotely imagine that advertising child pornography not only carries a harsher penalty than actually delivering it, but that the penalty is a mandatory ten years in prison, even for a defendant who is little more than a child himself. But this is an argument for giving the jury more information, not less. As the parties are well aware, the Court was persuaded by that argument, and proposed to give precisely such an instruction. Unfortunately, the Court of Appeals at the government's urging issued a writ of mandamus forbidding such an instruction, concluding that to do so would encourage forbidden jury nullification. See United States v. Pabon-Cruz, No. 02-3080 (2d Cir. Oct. 11, 2002). I continue to believe that this was a mistaken conclusion. This Court forbade the defense to argue nullification, and proposed to give (and gave) to the jury the usual injunctions against such nullification, adding only a pale sentence advising the jury of the maximum and minimum prison terms available for each offense. Unless one believed that the jurors, or substantial numbers of them, would find the penalties morally repugnant, it is difficult to understand how this simple information could be perceived as an "invitation" to the jury not to do its duty. (Tr. 22.) It is at least equally likely that knowing of a mandatory penalty might discourage jurors from "compromising] in an improper fashion," as the government put it (Tr. 22), by strengthening a doubtful juror's resolve to face the "difficult" duty "to hold out conscientiously for acquittal," 519 U.S. at 187, 117 S.Ct. 644, rather than to yield in the expectation that the judge could soften any injustice by the exercise of sentencing discretion.

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Punch & Jurists Weekly Newsletter notes, "Anyone who believes that the Federal anti-child pornography laws are not directed at thought control should read this decision." A later decision in the same case by the same appeals court, written by Circuit Judge José A. Cabranes, noted:

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I would not expect the average juror to be very tempted to civil disobedience in light of the seriousness of the conduct shown here and the strength of the evidence against the defendant. But in the unlikely event that members of the jury were so troubled that they decided to acquit in the face of the court's instruction, in violation of their oaths, and on the face of the evidence in the case, that, it seems to me, would constitute a significant exercise of the historic function of the jury and one that the jurors could never imagine if they had no notion of the seriousness of this offense in terms of punishment.

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