For centuries, criminal trial juries, petit juries, despite the clear black letters of the law and the evidence that they hear and see, have voted to find accused persons, doubtfully innocent, to be not guilty, allowing them to go free. This is jury nullification. For centuries, legislators and jurists have uniformly rightly criticized jury nullification and wrung their hands without finding a way to stop it; persistent victory of human nature over rational thinking.
Grand juries also nullify the law. Recent grand juries, in Missouri and New York, have not indicted law enforcement officers who committed a homicide. Many people view those failures as unjustified. Most states have laws tolerating homicide in specific circumstances. Without saying so in clear language, they criticize those grand jtuies for exercising jury nullification. Perhaps that criticism is justified. If so, how can a state nullify human nature?
Law enforcement officers inherently and routinely exercise broad discretion to initiate prosecution of a citizen for violating the law. That discretion protects the public. If every law enforcement officer cites everybody for every violation he sees, the courts will be clogged to impotence and citizens will be unreasonably burdened with having to defend themselves for multitudes of trivial charges.
Grand juries are an additional protection of the public. For example, if an infant, an insane person, or a non-negligent vehicle driver runs over a wanderer or sleeper in the road and is accused of homicide, a grand jury can decline to indict for homicide and the citizen can avoid being tried and having to defend himself.
The White House is reported to soon be proposing that in all states the usual grand jury be prohibited from dealing with a law enforcement officer accused of homicide, instead there be a federally decreed process. This will be a dangerous reduction of the rights of the people of the states.
If a. citizen thinks a law enforcement ofiicer or a prosecutor too lazy or otherwise motivated to initiate prosecution of a specific perpetrator, in most or all states that citizen can, without permission from anybody, appear before a local grand jury and suggest an indictment. In modern times, that’s rarely been done. Congress must not reduce that right. It’s the protection that the public has against a public official who protects criminals by his inaction.