Even if you believe the defendant is guilty of the crime committed as a juror do you have the option of returning a “not guilty” verdict if you believe the law making the offense a crime is unjust? no, but it happens all the time.

Jury nullification has a history dating back to the founding fathers and the Constitution of the United States of America.  In an effort to ensure the fairness of laws, the Constitution allows veto power of five separate powers.  In other words, the House of Representatives, the Senate, the executive level of government, judges and juries all have the authority to veto or nullify a law they believe to be unfair.

It was the founding fathers who decided that a law must pass certain tests before it can be effectively enforced.  One such test is through the jury.  It was intended the jury would not only judge the accused but also the fairness of the law the defendant was accused of violating.  The jury was given the right and authority as the finder of fact in a trial but they also have the authority to judge the law itself and nullify the law if it was deemed unfair.

The first case in America cited with jury nullification is the case of John Peter Zenger.  Mr. Zenger was charged with libel for printing derogatory stories in his paper about Governor William Cosby of New York.  It was clear, Mr. Zenger was guilty of violating the seditious libel law but his lawyer argued the law was outmoded.  In a matter of minutes, the jury nullified the law and set Mr. Zenger free.

The United States has a true adversarial system in which the finders of fact, the juries are neutral, there is a clear “winner” and the losing party has the opportunity to appeal the decision to a higher court.  Although this seems to be the most fair of systems to all parties involved, there is criticism citing the cost of the adversarial system.  So what are the alternatives?

Within our own adversarial system, we also have a non-adversarial system which encourages parties in a dispute to resolve their issues without litigation.  Mediation and arbitration are two such vehicles for dispute resolution.  With mediation, the parties come together and with the assistance of a mediator, work to negotiate a resolution.  Each party must come to the table with a willingness to make concessions and hopefully come to a mutually agreeable resolution.  In arbitration, the parties come together and each party is given an opportunity to present its best case and any evidence.  The case is decided by an arbitrator.  Although there is a clear winner in this type of case resolution, arbitration is binding and there is no forum for appeal for the losing party.

Each option offers an alternative to the adversarial system of justice which can be very time consuming and costly to each party.  Clearly this is an exciting option in civil cases but can it also be used in resolving some criminal cases?

Drug courts are an excellent example of handling criminal cases, minor drug offenses, in a non-adversarial setting and Utah courts both in the state and federal systems are embracing this practice. Drug possession is a criminal offense and the typical punishment, if convicted, is incarceration.  Our courtrooms are flooded with drug cases and our jails are filled with drug offenders.  The idea of a non-adversarial option in handling this social, not criminal problem is an innovative way to resolve these cases.  There are other current social problems which are currently being handled criminally which might benefit from a non-adversarial system similar to drug courts.  Some of these might be prostitution, first time DUI offenders, domestic violence and juvenile problems.  The United States needs to make a move away from an adversarial system for certain types of crimes.  In doing so we will be able to more effectively concentrate on more serious offences and free up valuable resources in our over-burdened court system.