Nullification Odds Favor a Trump Win in Hush Money Case

WASHINGTON - May 28, 2024 - PRLog -- The probabilities that all 12 jurors will vote to convict former president Donald Trump in his hush money criminal trial in New York are smaller than many might imagine, especially when the real possibly of juror nullification is factored in, says a law professor who is also a noted mathematician.

The result would be a hung jury, which most lawyers would regard as a victory for the defendant in any case, and a loss for the government, even though a second trial is always a theoretical possibility.  At the very least it would make it much more likely that Trump would not have to run for president with a criminal conviction on his record.

This legal power - known as juror nullification, which is similar to jury nullification which occurs when all jurors share that conviction and refuse to vote guilty - is one of the most important protections included in the right to a jury trial provided for in the Constitution.  Indeed, the Supreme Court has held that that jury nullification is protected by the Constitution.

Moreover, as was pointed out more than 20 years ago, "Today, by contrast, jury nullification has been the subject of literally thousands of media articles, television shows and documentaries. It is taught in high schools and colleges. Potential jurors are aware of the nullification power, though they may be mistaken as to its scope."

In evaluating the defense's closing arguments, suggests Banzhaf, it might be interesting to see if counsel indirectly tried to suggest to the jury - since he cannot expressly advise or argue it - that each juror should "let your conscience be your guide," and be concerned about a verdict which would appear to be unfair or unjust under all the circumstances.

If he did, he would simply be doing what Andrew Hamilton did (apparently inspiring the flattering term "Philadelphia Lawyer") in Zenger's 1735 freedom-of-the-press trial, and as what many argue Johnnie Cochran did more recently in O.J. Simpson's 1995 murder case by urging jurors to "do the right thing" (allegedly a code word or dog whistle to Black jurors from a Spike Lee movie by the same name).

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