If I had several million dollars sitting around — perhaps donated by people who support the Freedom Convoy, and who would like to see the truckers get off without any criminal penalties — I would use that money to start educating Canadians about one of the most valuable, if least known, of their rights: jury nullification.
Of course, jury nullification is a scary term to a lot of people. So I would call it something else, like juror empowerment.
The good news is that the Supreme Courts of both the United States and Canada recognize the right of any juror, in any criminal case, to refuse to convict a defendant as a matter of conscience, even if that defendant is clearly guilty of breaking the law.
The bad news is that in both countries, the defense in a trial is prohibited from informing the jurors about that right.
(There is one exception: In New Hampshire, the defense can inform the jury of its right to refuse to convict even a defendant who is clearly guilty.)
This is astonishing, when you think about it. How is it even possible that your government can actively prevent you from being informed about a right that people in the English-speaking world have possessed since 1215, when the Magna Carta was signed?
The police are required to inform accused criminals of their rights in proceedings against them. How in the world can we justify keeping the rights of jurors secret from them? Even for a government that is practically defined by hypocrisy and unwarranted secrecy, this seems beyond the pale.
Governments find juror empowerment scary, presumably because nowhere within the sphere of government does an individual have more power to make a difference than as a member of a jury.
And they find it scary because it is one of the few places left where a government can act only when it has consent, as opposed to the agreement of a majority. That is, it just takes one juror to avoid a conviction.
Which leads to a consideration of the mathematics of consent. Suppose that some percentage p in a population considers a law to be unjust. If a jury is being selected randomly, that corresponds to a 100-sided die, where p sides are marked with a zero, and the rest are marked with a one.
Empaneling a randomly-selected jury that would be willing to return a conviction — no matter what happens during the trial itself — would be like rolling that die 12 times, and never seeing a zero. What are the odds of that happening?
In fact, the probability of that happening is (1-p)^12. Which means:
- If 50% of the people oppose a law, the odds of getting a jury willing to convict are about 5000-to-1.
- If only 25% of the people oppose a law, the odds are about thirty-to-one.
- If only 10% of the people oppose a law, the odds are about three-to-one.
- If only 5% of the people oppose a law, the odds are even: about one-to-one.
Consider that last figure. If only 5 percent of the people oppose a law as unjust, a prosecutor has only a 50-50 chance of a successful prosecution, even if the law and the facts are on his side.
If you’re a government intent on steamrolling a significant minority into going along with a power grab, juror empowerment is the last thing you want anyone to know about.
Which is exactly why everyone needs to know about it.
Of course, juror empowerment only works if (1) the government can’t use voir dire (which is French for ‘jury tampering’) to keep a jury from representing a true cross-section of the opinions of the community, or (2) people keep quiet about their views, during both jury selection and jury deliberation.
In the latter case, you (1) answer any questions during jury selection as if you were a supporter of the government; and (2) say nothing during deliberations except ‘I cannot in good conscience convict this person’. You don’t have to explain why, and you shouldn’t.
(If you get tired of repeating it, you can write it on a piece of paper, and just hold that up whenever another juror asks you why you insist on holding out.)
Consider what would happen if the truckers in the Freedom Convoy started getting hung juries. Prosecutors hate losing cases the way quarterbacks hate being intercepted — it messes up their statistics.
Once it becomes clear that the chances of losing even an airtight case are significant, prosecutors can be expected to drop the remaining cases. If a few truckers walk early on, they all walk in the end.
Apparently the Emperor of Canada won’t let you give money directly to the truckers. But you can still buy ad space in newspapers and on television, as well as in social media! And an informed citizenry is mostly what the truckers need at this point.
Even though the protests are being dispersed, and truckers are being arrested, can informed Canadians still use jury empowerment to stick it to Justin Trudeau? Yes, they Canada.
