Massachusetts Court Admits Jurors Have the "Ability" to Engage in Jury Nullification, but They Clearly Don't Like It

There has long been debate over whether jury nullification is a "right" or only a "power". FIJA uses both words.

We will not cede the language of jury nullification as a "right" just because courts want to memory hole this powerful tool against abusive government officials such as themselves.

Massachusetts Court Admits Jurors Have the “Ability” to Nullify, but Refuses to Acknowledge this Right

That said, the latest legal opinion on my radar with regard to the RIGHT of jury nullification comes from Massachusetts. Its Appeals Court has ruled that while jurors have “the practical ability to nullify the law in light of the fact that a not guilty verdict is essentially unreviewable", there was no error in jury instructions telling the jury to apply the law as given by the judge and not consider punishment.

Here is the short opinion:

• Commonwealth v. Jimmy Dixon, Docket Number 20-P-1190, Released 30 January 2023

First, while the opinion says that the defendant notes that juries have a role in determining the law, not just the facts in four other states besides Massachusetts, the defendant is greatly understating the situation. Jurors have this role in EVERY state.

Second, I am not a lawyer, but the gist here seems to be that this court thinks it doesn't matter that jury nullification has historically been a right because, while no law has been passed against it, courts have themselves decided that it's not a right.

Well that's not my understanding of how it works. Courts aren't legally supposed to be able to revoke rights because they find them inconvenient. And in this case, as a practical matter, they actually aren’t able to do so.

As previously mentioned, even this court agrees jurors have the power to exercise jury nullification without legally being punished or overturned. Regardless of whether courts falsely say they have revoked your right, you can STILL exercise jury nullification to deliver just verdicts, whether or not this or any other court likes it. You can't legally be punished for it, and they know that.

That's basically what a legal right is, even if they refuse to acknowledge it. Whether it is called a right or a power is largely academic, though, and doesn't change the fact that you can do this for someone else without risking your own neck.

Jurors Need Not Cede Their Right of Jury Nullification

It's important that we understand that courts' “power” here is mostly an illusion. They can discourage jury nullification by bullying, intimidating, and confusing people out of using it. But they have very little real power to stop it if jurors are intent on exercising it.

Judges can falsely claim it is not a right. They can falsely instruct juries to follow the law as the judge gives it to them. They can prevent discussion of jury nullification in court or discussion of other things that might lead jurors to consider it. They can keep jurors who indicate a willingness to engage in jury nullification off a jury or even remove them as late as during deliberations.

Basically they can scare you, they can keep you in the dark about it, they can lie to you, they can even keep you off or remove you from the jury in some cases if you give them reason to believe you are going to exercise jury nullification.

But if you get on the jury without breaking the law to do so, do not get kicked off by openly discussing jury nullification during deliberations, and successfully deliver a not guilty verdict even if the law was technically broken, the court’s hands are tied. The court can NOT legally punish you for your conscientious vote. And the court can NOT overturn your not guilty verdict based on jury nullification.

That is why the Fully Informed Jury Association exists. If you are to serve as a fully informed juror, you will have to go in with the knowledge you need about your right and power to engage in jury nullification.

To ensure you and others are prepared to get on juries and you successfully deliver just verdicts, including by jury nullification if that is needed, check out and share these resources:

• Guide to Jury Duty for Fully Informed Prospective Jurors

• Questions to Consider before Jury Selection

• Filling Out a Prospective Juror Questionnaire

While I don't know the specifics of the case against Jimmy Dixon, it is described in the opinion generically as having to do with marijuana and firearms. In a footnote, it is mentioned that Mr. Dixon was acquitted of all the firearms charges, meaning he was convicted ONLY of the marijuana-related charges. This sounds very much like he is now convicted of and being punished for victimless offenses—basically a poster case for jury nullification.

Real people's lives are at stake. You can save them with just two words: NOT GUILTY.