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Truth and Jury Nullification

Jurors in Texas must swear that they “will a true verdict render according to the law and the evidence.”

My Guest Blogger maintains that a nullification verdict is not “a true verdict according to the law and the evidence,” insisting that “true” in the context means “Guilty if he’s guilty and not guilty if he’s not.”

He is wrong.

Around these parts (Defending People) we talk about “legal guilt” and “factual guilt.” “Legally guilty” means “found guilty beyond a reasonable doubt after a trial or a guilty plea.” “Factually guilty” means “he did a bad thing.”

If GB means to say “The jury must find the accused legally guilty if he’s factually guilty and not legally guilty if he’s not factually guilty,” (the only non-tautological meaning that I can see for his statement) then he’s flat-out wrong. There are lots of situations in which a person is factually guilty must be found not legally guilty.

For example, where the government has accused him of some other bad thing than the bad thing he did.

Or where he did the bad thing he’s accused of, but the government hasn’t proven its case beyond a reasonable doubt.

Or where (in Texas) the government has proven its case beyond a reasonable doubt but the jury is required by Article 38.23 to disregard some of the government’s evidence because the jury has a reasonable doubt about whether the government violated the law when it obtained the evidence.

Whether GB likes it or not, jury nullification is a part of our law. (Why it has historically been is a discussion for a smarter blogger [like Clay Conrad]. Why it should always be and, as long as we have juries, will always be, is a discussion for another post.) By definition the judge can’t instruct away jury nullification.

Because jury nullification is part of the law, a jury that follows its conscience and acquits a person in the teeth of the government’s evidence and the court’s instructions is rendering a verdict according to the law; it is true in the same sense that, and no less true than, the 38.23 acquittal is true.



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