Jury nullification, that phenomenon whereby a jury returns a not-guilty verdict for a defendant it believes to be technically guilty of the alleged crime, is, obviously, a controversial issue. What is not a matter of controversy, however, is the fact that the law protects the jury’s ability to behave this way. Much of the controversy therefore centers on whether juries ought to be informed of this ability to nullify free from legal redress. In this paper I examine a number of arguments both for and against the view that juries ought to be, in the words of the literature, fully informed. In the end I conclude that there is significant empirical evidence to suggest that, rather than simply promoting justice and mercy, as proponents of the instruction argue, fully informing a jury has the unforeseen consequence of encouraging juries to behave in a manner I label bad-faith, and that such bad-faith juries in fact corrupt the principles of justice and fairness that are the cornerstones of the trial system.

Universitat Pompeu Fabra