CREATORS
November 11, 2025
Jurors
play a prominent role in the criminal justice system. Although few cases go to
trial — statistically as few as four defendants in 100 — jurors wield the same
power as legislators and judges.
Being a
juror is a form of democratic participation, applying and interpreting the law
through the lens of the community's values and experiences, and acting as a
check on government power.
Traditionally,
the role of a juror is portrayed as merely the "finder of fact."
Juries make crucial decisions on the credibility and believability of witnesses
— they decide the facts. A trial judge determines and instructs jurors on the
law, which the jury must follow. Through the determination of facts and the
application of the law, decisions of guilty or not guilty are to be made.
However,
it is not quite that simple.
Beyond
determining the facts, a juror's conscience is also a protected element of the
justice system. The act of jury nullification — when a jury returns a verdict
of not guilty despite its belief that the defendant is guilty of the crime
charged — is the final check on governmental power.
That check
on power has grown so much more important at a time when the president of the
United States is ignoring limits on executive power.
In 2004,
conservative U.S. Supreme Court Justice Antonin Scalia acknowledged the role of
jury nullification. He wrote, "(The jury) right is no mere procedural
formality, but a fundamental reservation of power in our constitutional
structure. Just as suffrage ensures the people's ultimate control in the
legislative and executive branches, jury trial is meant to ensure their control
in the judiciary."
Jury
nullification is taking hold in places like Washington, D.C. Recently, over a
period of three weeks, grand juries in Washington rejected three separate
efforts by federal prosecutors to obtain an indictment against persons accused
of felony assault against federal agents.
A grand
jury rejecting an indictment is extraordinary. A grand jury needs only to find
probable cause that a crime has been committed to move forward. Robert
Morgenthau, a longtime Manhattan district attorney, said he could get a grand
jury to indict a ham sandwich.
According
to The New York Times, the pattern of failure to obtain indictments
"(I)ndicated that the ordinary people called upon to sit on grand juries
were pushing back against efforts by prosecutors to harshly charge fellow
citizens who had encountered law enforcement officers on the streets."
Something
similar happened in Los Angeles recently as federal prosecutors struggled to
obtain indictments against protesters arrested during demonstrations against
federal immigration actions. Justice officials told The Los Angeles Times that
prosecutors have struggled to get several protest-related cases past grand
juries. In some cases, prosecutors reduced charges against defendants to
misdemeanors after repeatedly falling short at the grand jury level.
Then there
is Kendall Diaz, who was found "not guilty" of assaulting a U.S.
Border Patrol agent in Spokane, Wash.
Diaz was
arrested by federal immigration agents, accused of elbowing an ICE agent in the
eye during a struggle in his own front yard. While the agent emerged from the
encounter with a black eye, it appeared the jury, which reached a verdict in
less than two hours, determined that Diaz's conduct, although captured on
video, was not an intentional assault.
Last week,
a Washington, D.C. jury acquitted Sean Dunn — the "Sandwich Guy" — of
assaulting a federal officer. Dunn became the symbol of defiance when he hurled
a sub sandwich that hit the chest of an agent wearing body armor. He went to
trial, admitting he hit the officer to divert his attention from fleeing
protesters.
Jurors
are, in a sense, speaking for their fellow citizens. They are challenging the
government's overreaching, overcharging and overzealous prosecution of
protesters who were expressing their displeasure with the government.
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book
The Executioner's Toll, 2010 was released by McFarland Publishing. You can
reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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