Jury nullification is typically portrayed as a defense against unjust laws, and some judicial thinkers see it that way.
But it's important to point out the dominant view and the current view of jurisprudence views jury nullification as kind of an unfortunate edge case. Here's the Fourth Circuit from 1969:
"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."
In other words, jury nullification is not a defense against injustice, but a side effect of having trials by an independent jury of ordinary citizens.
In the opinion of a court, which would rather not recognize the concept at all. Courts hold a dim opinion of jury nullification, going so far as to legally sanction mentions of it in a courtroom, and to provide "instructions" to the jury that try to expressly prohibit them from considering anything other than whether the facts of the case meet the law as explained to them. Even hinting that you might understand the concept will get you thrown off a jury. In some cases, bringing up the concept during jury deliberations will result in a mistrial.
Personally, I like the way the state of Oregon handles the issue. Quoting the Oregon constitution, article I, section 16: "In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial". That said, I don't know whether in practice Oregon courts do any better about not censuring jury nullification.
It's a mistrial because you're telling the judge he's not important. Of course judges don't like that, they worked their whole life to be a judge, and some jamoke without a law degree shows up talking about jury nullification. That's why you see censures and mistrials.
Clearly, the Fourth Circuit at the time saw it that way. But that does not address the question of how was it viewed by the Framers who gaurunteed one (at least on the Federal level) in Article III. It also does not address the question (perhaps more relevant today) of what ought it to be and how ought it be treated?
It is possible, indeed likely given the history, that the Framer's saw providing nullifcation as part of the purpose of enshrining a jury trial in the Constitution.
Whether they saw it that way or not, the relevant question is, how ought we treat it? Should we treat it as an unfortunate side effect that we can't completely get rid of but should do everything we can to minimize? Or something to be embraced as essential? Or perhaps in between those two extremes, as something genuinely useful, but only "in extremis" when all better options have failed?
Well, original intent as a theory of law interpretation is considered problematic, and not really used by anyone. You can't necessarily read lawmakers' minds, and lots of law--especially the Constitution--was written by many different personalities often at odds with each other, where 'original intent' might not exist even theoretically.
Some people confuse the 'original meaning' theories of someone like Scalia with original intent, particularly since the words of the Founders could be used to support either theory. But it's a different thing. So you can talk about what the Founders meant, and it's a fine thing to think about, but it's not something that will get you far in the courtroom unless you can link that to what is written and what is in common law.
I should disclaim that I am not a lawyer, but there are legal scholars that discuss actually using original intent and courts that cite specifically to intent in their decisions. Though, I agree fully that in attempting to argue intent you must still be able to tie it to what is written.
I also fully concur that many laws may mean different things even to the people involved in passing them, yet some times they can be clear, especially when laid out in clear records of the debate or in an explicit intent section as part of the bill.
The intent, when known, can help inform the way a law will be interpreted by the courts. Prof. Ian Bartrum discusses this in "The Modalities of Constitutional Argument" and Prof. Philip Bobbit goes into more detail in "Constitutional Fate" and "Constitutional Interpretation."
You have a good point that Scalia's 'Original meaning' is different from 'Original intent' and 'Original meaning' is far more objective. But that does not mean intent is not considered. For a modern case where Congressional intent was at the center of an 11th Circ. decision look at Harris v. H&W contracting Company, 102 F. 3d 516 (11th Circ, 1996).
[Edited to remove a redundancy]
Thouh, while I think intent here has relevance, I still think the more salient question is prudential. Regardless of how it came to exist, what should the role of jury nullification be?
The very first thing that wikipedia says about jury nullification paints it as much more than "an unfortunate edge case":
A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops [...] it can have the de facto effect of invalidating the statute. A pattern of jury nullification may indicate public opposition to an unwanted legislative enactment.
Wikipedia and cynicalkane aren't conflicting. cynicalkane is making a claim about why nullification exists. (It is impossible to prohibit nullification without also giving courts the power to ignore jury decisions based on what they think is in the jurors' heads.) Wikipedia is making a claim about the effect of nullification. (Nullification can effectively repeal laws, a very powerful consequence.)
Suppose just 5% of the potential jurors believe, say, that it should not be illegal to kill an abortion doctor, or to beat up someone who dares to be homosexual in public, or to beat up someone who dares to flirt with a white woman while being black, and so on.
If you have a jury of 12 and require a unanimous verdict for conviction, then 46% of randomly chosen juries will not convict people for the aforementioned crimes no matter what the evidence, because they will include at least one person who believes those acts should not be criminal.
That spits in the face of the notion of equal justice for all. You and I commit a crime together, but have separate trials. The evidence is the same for both of us, but one of us is convicted and one not, because one of us happened to get one of those 5% who thinks stomping blacks or gays who get out line is OK.
Ugh.
Another big problem is that once you tell jurors they can ignore the law in order to acquit, they will figure out they can also ignore the law in order to convict. Bogus convictions won't be as frequent as bogus acquittals, but there will be some. (And you can't count on the judge throwing out the conviction in those cases, because the judge won't be able to distinguish those convictions from those where the jury simply believed the prosecution's evidence and witnesses over the defendant's evidence and witnesses).
Our system is designed around checks and balances. How do you provide checks and balances for the nullification power? The only one that anyone has been able to come up with is to not tell the jury about it. That way, it only gets used in cases where some juror recognizes that not only would there be an injustice in applying the law to the case at hand, but that there has been a breakdown of the system making it so that this injustice will not be addressed elsewhere, so that the juror decides that even though he has sworn to uphold the law, he must break that oath.
Nullification is almost never appropriate for a marijuana case. Even though I think marijuana should be legal, and I know all about nullification, I would never use it there at this time, simply because the system has NOT broken down in this area. Want to stop people from getting convicted of marijuana crimes? Then elect legislators who will decriminalize marijuana.
"Nullification is almost never appropriate for a marijuana case. Even though I think marijuana should be legal, and I know all about nullification, I would never use it there at this time, simply because the system has NOT broken down in this area. Want to stop people from getting convicted of marijuana crimes? Then elect legislators who will decriminalize marijuana."
I'd point to this portion of the article: "Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. "
In this context it's part of the awareness and reform process. Again, from the article: "In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors 'can ignore the law' if the law 'is producing a terrible result.' "
This is a peaceful and legal way of stating "This law is bunk, we won't help you enforce it."
Nullification is balanced around the hung jury process. http://en.wikipedia.org/wiki/Hung_jury If a jury can't decide in some time frame the judge can decide to end the trial without a verdict and enable a new trial to occur. Your constitutional protection vs multiple tryals only occurs after a jury has said not guilty it does not apply when a jury can't decide on a verdict.
PS: In the US In the United States, the result is a mistrial, and the case may be retried. Some jurisdictions permit the court to give the jury a so-called Allen charge, inviting the dissenting jurors to re-examine their opinions, as a last ditch effort to prevent the jury from hanging. The Federal Rules of Criminal Procedure state, "The verdict must be unanimous...If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed...If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed...If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree."[7]
I strongly disagree. Every juror should understand that they have a responsibility to consider the law, not just the facts. In most trials, that consideration will amount to "Yup, the law seems fine", with no further thought required. However, I believe that consideration ought to happen in every single trial, with every single juror. No reasonable doubt should exist that the law remains just and appropriate.
If that means we get a few more "not guilty" verdicts than we should, so be it. We make the same tradeoff with "innocent until proven guilty" and "beyond a reasonable doubt": better to let guilty people free than convict innocent people. The difference: we need "beyond a reasonable doubt" applied to laws, not just to people.
We already have a system to make sure laws remain appropriate: it is called an elected legislature.
They system you are suggesting would in effect turn every trial into a little election on what the law should be, but with only a small fraction of the electorate voting, and the results only applying to that one case.
Checks and balances considered useful. I always want the option to exist, even though people won't need it in most cases.
And also, every case adds to the case history; it doesn't take many cases to create a pattern. So no, the results don't only apply to that one case. And even if they do, a single instance of well-applied nullification might not mean much to the general public, but it means the world to the defendant.
Say someone is on trial for tax evasion, because they paid only 20% rather than the 30% they owe under the law. Is it OK for a juror to say "gee, taxes should only be 20% anyway, so I'm going to let him off the hook"?
On a one-off basis, this doesn't represent any significant change to the system. People won't start evading taxes on the theory that they can argue for jury nullification, because they won't consistently get away with it.
On the other hand, with a tax rate of 90% (to use an extreme example), juries might start consistently acquitting people for not paying their taxes, and that sends a message.
In any case, I don't want to see any measures taken to stop the scenario you describe. It'll work out just fine on its own.
But then you're bringing opinion into the law. If the jurors on one trial think that 30% isn't fair, but jurors on another trial think that it is fair, you haven't got a fair system anymore. Isn't the law based on justice and fairness?
And this doesn't only apply to tax laws. There could be a difference of opinion on other cases too.
While the law nullification idea is a good idea in theory, it starts to break down in practice.
The whole idea of having jurors is to bring opinion of peers into making judgement about the case.
Of course it's better to make a system that would be consistently fair (e.g. keep taxes at the level vast majority of society supports it). But if two available options are "not fair" and "not always fair" - I'd pick "not always fair".
But the counterargument is that the point of having a jury is to protect people from the power of the government. If we want to say that a jury is there solely to evaluate the evidence, then I suspect that a judge sitting without a jury will likely do a better job.
But if the point is protect from the power of the government and avoid the risk of a corrupt judge, then nullficiation must be an available tool, and like any other tool it is only useful when it is known to exist.
Perhaps the answer to your concern about balancing is more education rather than less. Perhaps juries (at least in cases where one side requests it) should be informed both that nullfication is an option, and also that, as you said, it should only be applied when "not only would there be an injustice in applying the law to the case at hand, but that there has been a breakdown of the system".
Jury nullification has to do with returning a "Not Guilty" verdict in the face of evidence that would suggest otherwise.
What you are talking about it a "hung jury" where the 5% person is able to prevent a unanimous "Guilty" verdict. Depending on the state, the requirement for conviction may be unanimity or something less (11 to 1, 10 to 2, I don't remember if it goes any less). In this cases, the prosecutors may choose to retry the defendant - if you think about it, if the prosecutors decided to try him once, why not twice? The odds are the same the second time around (i.e. the odds of not getting the 5% person on the jury).
Regarding "bogus convictions", the jury only gets to make its decision when a high enough evidentiary threshold is met. Otherwise, the judge must throw the case out for not meeting minimum requirements.
Think of it like this (note that this is my own approximate guesses taken from my law school class on Criminal Law) - "Reasonable doubt" may be a 95% confidence threshold for the jury to convict. For the decision to get to the jury, the judge has to decide that the evidence is at least 75% confidence level in his opinion. Its only 75% for the judge because he is not the finder of fact and the jury can reasonably decide that what the judge views as 75% certainty of guilt is actually 95% in their view.
So to sum up, the situation is not as dire as you would suggest. I agree that jury nullification can be a big problem in the wrong situations (racist communities, etc) and that is why the law tries to minimize its impact (e.g. defense attorneys cannot mention jury nullification to a jury during the trial) while preserving defendants' rights to a jury of peers.
Like seemingly every aspect of law, there isn't a clear cut answer either way.
"In this cases, the prosecutors may choose to retry the defendant - if you think about it, if the prosecutors decided to try him once, why not twice?"
Prosecuting a defendant is an expensive process. It's not free. And even though one hung jury won't save the defendant, if juries start hanging two or three times every time a crime is prosecuted, the state is going to have to start rethinking its stance on prosecuting that crime from a budget perspective alone.
The same tactic has been offered for contesting every speeding ticket to prevent governments from using it as a revenue stream. If everybody contested every ticket, it would cost more to in trial costs than the state would make in fines.
A completely obvious check on jury nullification that you've somehow overlooked is jury selection. Juries aren't chosen randomly.
Also, it seems like your argument can be logically extended to be an argument against trial by jury in general, or even against the whole idea of laws that carry punishment. People, especially civilian jurors, aren't predictable or controllable, so there's never any guarantee that some "objective morality" will be carried out by them. And you can't have laws without some person or group of people deciding what those laws are, which almost always will mean that there will be disagreement.
I agree with your analysis and the injustice of outcomes depending so strongly on the specific twelve jurors for cases involving a strongly held small-minority opinion.
On the other hand, I'm not really optimistic about the strategy of electing legislators to effect changes in these specific kinds of laws for all the usual reasons.
In the specific case of marijuana, the benefits of decriminalization are diffuse and primarily among socially marginalized groups whereas the countervailing forces are socially respected and also highly concentrated (politicians who want to "do something", and law enforcement agencies who get a ton of discretionary power and funding out of the "War on Drugs"). This is a recipe for coordination failures on the "repeal" side and for systematic political advantages on the "criminalize" side.
One particular beauty of the jury system is that it is a legitimate buck-stops-here kind of way for local populations to control their local law enforcement in the face of overreaching non-local laws; if a particular city becomes so full of people who just don't believe that marijuana should be criminalized they can make that happen locally. Electing legislators is slow, and in the case of federal laws like drug enforcement, must be made to work in the entire nation at once rather than one-community-at-a-time.
>Then elect legislators who will decriminalize marijuana.
The problem is that politicians are elected on a package-deal of positions. Just imagine the kind of bad haircuts and/or crappy food we'd have if we all voted on which one barber/grocery combination store would service everyone.
That's cute; you think the system isn't broken. I'd rather not needlessly put people in jail and ruin their lives for victimless crimes than be pragmatic.
Second, nullification is itself a check, for the power of the state prosecutor. If you think juries are powerful, remember that the prosecutor is more powerful even than the judge: without a decision by this one state employee, the defendant wouldn't even be a defendant.
From what I've read, something like 98% of criminal cases are pled out before a jury is selected. (Trials are expensive and risky for everyone involved.) So the dominant factor in one's fate, by more than an order-of-magnitude, is what charges the prosecutor decides to file.
Nullification, after all, is just one specific instance of a jury verdict: a way for the citizens to point out that the prosecution is without merit. Our justice system is based on the principle of "innocent until proven guilty", so it's quite deliberate that we err on the side of not convicting.
If there is a 5% chance that a juror would unconditionally acquit for a hate crime he agrees with, and even assuming the prosecutor is dumb enough to randomly select jurors, there's still not a 46% chance of acquittal. A single juror can merely hang a jury. The prosecutor could simply try the case again.
What would it take for me to be acquitted for a hate crime because of a bad jury? As a defendant, I'd have to be one of the 2% that would want to risk a jury trial, despite the evidence against me, over the advice of both my lawyer and the prosecutor, and even though most criminal jury trials result in conviction. Then the prosecutor would have to allow a jury to be selected that consisted of 12 people with the same 1-in-20 prejudice as my crime (or fewer than 12, with the remainder willing to be talked into acquittal). I'm sure it's happened, in certain times and places, but these days it looks like it'd be pretty rare.
Not every jury will return the same verdict for the same crime, but that's inherently not a failure of equal justice. (Jury selection would sure be a lot quicker and easier for everybody if we knew that every jury returned exactly the same verdict!) Sometimes juries will make bad decisions, but I haven't heard any proposed system that can yield justice regardless of the people involved. Better to have the possibility of 12 people who can decide to let me go free, than 1 person who can decide to imprison me.
Finally, IANAL, but I don't think that the legislature can legalize marijuana (short of repealing the Controlled Substances Act, which will never happen). It's a Schedule I drug, as declared by the DEA, an agency led by an appointee. It looks like the ACLU is suing the DEA over this matter. I think my state does want to legalize, and my reading of the Constitution indicates that we should have the right to, so in the mean time, nullification seems like a perfect fit here.
IANAL, but I think it can be permitted, if they just modify the CSA a little. Spirits, beer, malt, wine, and tobacco are already explicitly permitted; they just need to tweak the rest a bit.
You can bet that if marijuana was moved down to Schedule II (due to the low number of deaths caused by its use), they'd find a way to put it back on if they wanted.
Suppose just 5% of the potential jurors believe, say, that it should not be illegal to kill an abortion doctor, or to beat up someone who dares to be homosexual in public, or to beat up someone who dares to flirt with a white woman while being black, and so on.
If you have a jury of 12 and require a unanimous verdict for conviction, then 46% of randomly chosen juries will not convict people for the aforementioned crimes no matter what the evidence, because they will include at least one person who believes those acts should not be criminal.
<rant>
for whomever wondering how tzs comes up with the numbers, he probably models this problem as a binomial distribution, e.g., Bin(12, 0.05). while binomial distribution is a good approximation for this case, i think hypergeometric is better, since it's not 5% anymore as soon as you choose one juror.
No distribution needed - 46% is 100% - (100% - 5%)^12, as if you were rolling a die 12 times. The population is large enough that the effect of removing 11 people from it should be negligible.
This is not "no distribution", this is a binomial distribution - where every one of n items has an equal probability p of being a certain result. You are correct that in this case removing the 11 people from the population is negligible, thus p remains the same.
"Our system is designed around checks and balances"...who make the check and balances ? humans...which exactly means your current system can never be fair...that's why all current legal systems are doom, they can never achieve their mission of providing fair justice...for any software code, given the same input, it always only has 1 interpretation and 1 output, but for the legal system, the same case with the same law will give different outcomes depending on time/people...software engineering practices should just be used in the legal system for it to have a chance of achieving its mission :)
I know this is picking nits, but that just simply isn't true. There isn't always the same output for every single input. That's why there's race condition errors. AI Systems will also alter outputs based on the same input (unless you assume that the knowledge base is constant).
Besides that, there is very good reason for justice to have the ability to change course. While humans are writing it, judging it, and punishing it -- they are also committing the crimes which means their actions might not be all that clear cut.
The jury is screened to make sure those 5% don't serve. All potential jurors are tested to see if they believe something like "it should not be illegal to kill an abortion doctor," or anything else that would cause an unfair trial before they are chosen. The college kids in Boston who get jury duty joke they'll claim to be racist so they can go home.
In addition, lawyers for both sides are allowed to pick a certain number of people to strike from the jury for any reason they choose. Assuming both sides have somewhat competent lawyers (although that's not always true), the chance of having an outlier on your jury is greatly diminished.
Ooh, I got kicked off a grand jury a couple years ago for telling my fellow jurors about jury nullification. I pointed them to this etherpad -- http://padm.us/jury -- where I was researching the question. I wasn't even sure at the time what the right answer was.
I pointed them to this etherpad [...] where I was researching the question. I wasn't even sure at the time what the right answer was.
Was this after you were selected to serve on the jury? They usually make it pretty clear that you are not permitted to do outside research on the case or the laws in question.
Also if jury nullification is important to the defendant's case then it would be the job of their attorney to make sure the jury is aware of that choice.
> Also if jury nullification is important to the defendant's case then it would be the job of their attorney to make sure the jury is aware of that choice.
They're not allowed to inform you in most states, as I understand it. I think, however, that there are one or two states which are exceptions in that regard and say something about jurors having the final say in their jury instructions, but it's been quite a while since I've read up on this.
> They usually make it pretty clear that you are not permitted to do outside research on the case or the laws in question.
Grand juries operate under vastly different rules and assumptions, and for very different (and varying) purposes, than petit (trial) juries. The role of a grand jury has been anything from a limited sanity check on prosecutors all the way to an autonomous body empowered to investigate all aspects of governance in their jurisdiction.
There have even been grand juries that were long treated as rubber stamps for prosecutors, but found the laws of their state envisioned much more, went "rogue", and started bringing down corrupt politicians, prosecutors, judges, etc..
If you're pro-nullification, you should learn more about the kinds of things that will get you kicked off of a jury. Assuming you ever get the opportunity to serve on a jury again, you'd do better to avoid getting yourself kicked off, by not saying anything that indicates you know about nullification or have tendencies that way, and by not doing outside research while serving on a jury. Otherwise, your pro-nullification stance will do you no good.
I would suggest to anyone interested in the topic to read The Trial of John Peter Zenger. It represents an extreme case of judicial process manipulation that would have been very difficult to defeat without the help of a sympathetic jury.
As the Joe Fridays of the world are very eager to point out, nullification DOES subvert the rule of law. So I don't support its' use for every situation. But bad laws and rigged justice also undermine the rule of law -- we still have bad laws (drug offenses, generally) and rigged justice (the Duke lacrosse team case, more of an attempt at rigged justice) even today.
That said, nullification is not that powerful of a threat to the system, because the system has ways of dealing with partiality such as voir dire, change of venue, rules of evidence.
The lengths NY state is going to silence free speech and enforce the "blinders of fact" principle seem a little extreme.
Just remember -- the law is meant to serve the people, not the other way around.
The big issue I see with nullification is that, once you grant it is justified unjust laws, you make it so that any law can be nullified in a given case, depending on the particular jury selected.
Good! you might say. But now imagine you're in the rural South, trying a case of what was effectively a lynching. If you say that jurors can ignore the facts of the case and the law, no matter how much evidence you offer that a particular person is a murderer, they can ignore it for white supremacy.
This is on top of issues about fairness and equal application of the law. Whether and how much you're punished would vary even more depending on the makeup of the jury, even if the crime is the exact same.
I served as a juror on a ten week murder trial, and one thing I learned (to my extreme exasperation) is that you can't ask questions. I mean, you can ask, but every time I asked anything the judge gave some roundabout non-answer, and it was obvious that she was required to do so.
In particular, the verdict hinged on some technicalities, and we got about 40 pages explaining the law. I attempted to clarify the exact meaning, but in the end eleven others and I were forced to decide for ourselves.
I've wondered before why, after the prosecution and defense lawyers are done with a witness, the jury can't also question the witness. Can anyone help me understand why that's not allowed?
In particular, the verdict hinged on some technicalities, and we got about 40 pages explaining the law. I attempted to clarify the exact meaning, but in the end eleven others and I were forced to decide for ourselves.
There's good motivation for this: the jury's job (in a criminal case, at least) is to decide whether or not the prosecution has proved beyond a reasonable doubt that the defendant is guilty of the charge in question. Not to determine if that fact could be established by a more competent prosecution.
Step one in proving that someone has broken the law is making sure that the jury understands the details of the law well enough to understand the accusation, including (and in particular!) any technicalities that might be involved.
If the prosecution hasn't done that, then there's plenty of reasonable doubt to be found, and that's a crystal clear "not guilty".
When the shabby old man is put on trial for jury tampering, shouldn't a jury of his peers find him not guilty? The deliberation on that trial could be very interesting. Or very difficult because the judge won't let the defendant's counsel say anything. Or both.
Court-appointed counsel isn't known for its quality, and when your own lawyer is apparently contemptuous of jury nullifications ("silly leaflets"), it's not looking too good.
I don't think the lawyers are implying that they are contemptuous of jury nullification with this strategy. I think they are trying to downplay the impact of the leaflets, playing their client off as a goofy old man with silly ideas that everyone would ignore like a beggar.
I imagine a good lawyer would argue both that the leaflets were harmless, and that it was constitutionally protected speech, as a way of covering all angles.
I think that's why prosecutors try to scare defendants into plea bargains by charging them with the maximum offenses they can possibly justify. It's better for the prosecutors in these types of cases for the jury to not have a say.
I've had the pleasure of speaking to a couple of prosecutors and am in law school right now. They definitely try to get plea bargains, but it is more a matter of effeciency.
In any place with a remotely high population density, a prosecutor normally has more cases lined up than they can really do justice for and many more that they are deliberately choosing not to go forward with at all, not because they don't have plenty of evidence, but because they are focusing on the more significant cases. Getting a plea bargain is simply much faster for the prosecutor and much cheaper for the government than a full trial.
> shouldn't a jury of his peers find him not guilty
that depends on whether or not he is guilty of jury tampering. wikipedia says that it is "attempting to influence the composition and/or decisions of a jury during the course of a trial". i don't have all the details, but it sounds kind of like that's exactly what that guy is trying to do.
The author of this article is doing the same thing. The law should be worded so as to refer to a specific juror and a specific trial. If I call Juror #5 at home and tell him I'll kill his family if he convicts, that's jury tampering. If I'm a writer handing out a leaflet about the history of jury nullification, then that's free speech. Even if I do it near a courthouse.
The courts have ruled that free speech should be limited in some cases, but yelling "fire" in a crowded theater and educating fellow citizens about our legal system are pretty different cases, even if the second one could influence the results of a trial.
That's not at all what he was doing. He wasn't trying to influence a jury, he was trying to educate them to let them know about a third option they have. It's still up to them whether or not to use it. He also wasn't influencing any particular jury, or an active jury. He was giving leaflets to potential jurors.
That's missing the point. The wording of the law is irrelevant if the jury considers it invalid or unjustified; that's the whole purpose of jury nullification.
Chief Justice Oliver Wendell Holmes, Jr.: "The jury has the power to bring a verdict in the teeth of both the law and the facts."
John Jay (first Chief Justice): "The jury has a right to judge both the law as well as the fact in controversy."
Justice Byron White: "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority."
"Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case."
I don't get it; jurors are selected based on how they claim will decide? That's all kinds of messed up.
It probably varies by state (or not), but the last time I was on a jury, the jury selection process went like this:
1. 12 jurors are seated.
2. the prosecution asks questions of the jurors, either as a group (eg, "raise your hand if X") or individually.
3. the defense does the same thing
4. the prosecution can excuse any jurors they think are not suited for the case
5. the defense can do likewise
6. If less than 12 jurors remain, enough new ones are seated to bring the number back to 12, and the process repeats
And the questions the prosecution asks are often framed like "Is there any reason you would fundamentally be unable to return a 'guilty' verdict in this case?" or "is X a reason you would not be able to return a 'guilty' verdict?" etc.
At which point, an honest person who believes jury nullification would apply here, would have to say "Yes, I would refuse to vote guilty in this case because I think the law is wrong" or whatever. Of course if you do that, you're basically asking to be excused.
In my case, they never used the phrase "jury nullification" in the selection process, but they asked questions that roughly corresponded to asking about that.
Also, I'm not sure if there is a limit to how many jurors each side can excuse. In the case where I served, quite a few jurors were excused by one side or the other, but we didn't come close to exhausting the pool of candidates (which was, I believe, somewhere between 50-60 people).
The plaintiff / defense teams are allowed to remove an limited number of jurors unless the removal is among a list of valid exempt causes (in which case the removal is exempt from the limit). See:
http://en.wikipedia.org/wiki/Peremptory_challenge
The process can become very very thought out in high profile cases - there are psychologists hired to advise litigators on how favorable a potential jury member might be, and the list of potential jurors for a given day can be retrieved ahead of time and background checks run each one (all within the rules).
I would say that with the rise of facebook and other social media, it's easier than ever before for both the prosecution and the defense to be able to develop a very good profile of the potential jurors. And if one side or the other does not have the resources or expertise to do so, they could be at a serious disadvantage before the trial even starts.
I was selected on a jury once, but only just barely. It was a drug-related case, and the defense attorney challenged the prosecution, who had made a peremptory challenge to remove me from the jury.
His argument was that I was the only one even close to the age of the defendant left on the jury, and that by removing me he would be removing all of the defendant's "peers." (He was young; I was young.) The prosecutor withdrew his challenge, and I stayed. Funny thing was, I was pretty anti-drug at the time, so it could have backfired.
But I ended up being the jury foreman and we acquitted without much debate after someone decided to ask if anyone in the room actually thought he was guilty. They didn't really have anything on the kid; the trial was a total waste of taxpayer's money.
But you have an excellent point: If anyone writes online about supporting jury nullification, odds are good they'll get a challenge-for-cause any time they're in jury selection. At least if they're easily traced by name to those comments.
> And the questions the prosecution asks are often framed like "Is there any reason you would fundamentally be unable to return a 'guilty' verdict in this case?" or "is X a reason you would not be able to return a 'guilty' verdict?" etc.
In my case it was a civil trial and he (the plaintiff's attorney) asked everyone to raise their hands if they thought they could follow the instructions of the court.
I kept my hand down.
He told me to raise my hand.
I told him I had some opinions on jury nullification.
He looked at the judge.
The judge didn't say anything.
He then asked me what my opinions were.
I said what I thought the definition was for "jury nullification", and that ultimately I have no problems disregarding the instructions of the court.
I was then, most immediately, dismissed from jury duty. The first person out of that room.
It was very nerve wrecking having to do that (being in the court room for the first time, and all that). But worth it.
*The case was something about the "fair value" of someone's property that was taken by the state (and DOT) due to road construction ("eminent domain" maybe).
> It was very nerve wrecking having to do that (being in the court room for the first time, and all that). But worth it.
You got to make a point to a small room full of people. You didn't, however, get to have any effect on the verdict, so ultimately your opinions on jury nullification had no effect except to get you kicked off a jury. Unless you wanted to get kicked off the jury, that doesn't seem worth it to me.
Yeah, you should keep off the soapbox until after the case has run its course. If you think that using jury nullification is a possibility for you, keep your mouth shut and just do it otherwise you'll be excused.
I was called up for jury selection in Manhattan, and this was my experience. They asked if anyone had a problem with the law in question (it was a drug case) and then asked if I would be able to return a guilty verdict.
I was not paneled on the jury. In my case, a large number (>100) jurors were dismissed for what did not appear to be any reason, so it may have been something else I said or something I wrote on the questionnaire they gave us. I was also surprised by the number of dismissed jurors, since I was led to believe (mostly, I think, by Law & Order) that there was a limit on the peremptory dismissals.
On the elevator on the way out, other dismissed jurors congratulated my on a novel way to avoid jury duty. This annoyed me, since I would have really liked to have been on that jury. Although I agree with the article that juries should have more powerful, I don't see how a believer in nullification can get on a jury without lying.
> I don't see how a believer in nullification can get on a jury without lying.
If you're going into a case knowing you'll say "guilty" or "not guilty" without actually hearing the facts of the case, you should get kicked off the jury, independent of your belief in jury nullification. If you plan to decide based on both the law and the facts of the case, you should listen very carefully to the questions asked, to ensure that your boolean answers remain truthful.
Question: "Do you have a problem with the law in question?"
Unspoken answer: "Depends on the facts of the case."
Boolean answer: "No."
Question: "Would you be able to return a guilty verdict?"
Unspoken answer: "Yes, I have the ability to do so, and in general a belief in jury nullification means I want to decide based on the facts of the case as well as the law, which the constitution of my state specifically gives juries the power to do."
Boolean answer: "Yes."
If I had thought it through, I might have been able to offer white lies to cover the questions they asked. As it was, they didn't ask me anything so nice as "do you have a problem with the law in question"; they asked several questions related to that, including "do you have any feelings about drug legalization".
They didn't just ask if I could return a guilty verdict, either -- they asked if I would return a guilty verdict based on the law as explained by the judge if I felt that the facts supported the verdict. To be honest, I did answer yes to this one, although I did feel a twinge and my hesitation was palpable.
As for not knowing whether you'll say "guilty" or "not guilty", that's fair. They did describe enough of what the charges were that I find it hard to believe that I would convict, unless I exercised my power of "jury expandification", which would require me to convict them of the charge presented if I felt that they were guilty of other crimes, to make sure that the defendant received some punishment.
> If I had thought it through, I might have been able to offer white lies to cover the questions they asked.
I didn't intend to suggest white lies; I consider the responses I suggested entirely truthful, just carefully chosen. :)
> As it was, they didn't ask me anything so nice as "do you have a problem with the law in question"; they asked several questions related to that, including "do you have any feelings about drug legalization".
That could certainly make it more difficult. Depending on the wording of the questions, you may or may not have had the ability to give a truthful answer that would keep you on the jury. I certainly would not advocate lying.
> They didn't just ask if I could return a guilty verdict, either -- they asked if I would return a guilty verdict based on the law as explained by the judge if I felt that the facts supported the verdict. To be honest, I did answer yes to this one, although I did feel a twinge and my hesitation was palpable.
"if I felt that the facts supported the verdict" gives you all the leeway you need to say "yes" without reservation.
> Question: "Do you have a problem with the law in question?"
Unspoken thought: "In and of and by itself?" Spoken Answer: "No." Unspoken thought: "I may however have a problem with the application of the law."
Question: "Would you be able to return a guilty verdict?"
Spoken Answer: "Yes." Unspoken thought: "If the plantiff can shown what harm the defendant has caused to the non-consenting victim of accused crime."
Update: If the application of the "law" would lead to an unconscionable injustice... such as punishing (or condemning or reprimanding) a human for something which has not harmed anyone against their will.
Although I agree with the article that juries should have more powerful, I don't see how a believer in nullification can get on a jury without lying.
Yeah, I had more or less the same thought. In my own case, I do believe in Jury Nullification; it just happened that the case was a property crime case (breaking and entering, larceny) which is one of the areas where the law seems reasonably just. So I didn't speak up or anything, and ultimately did serve on the jury.
However they can't stop you from changing your mind.
If they didn't ask if you "won't have a problem when it comes to deliberations" you can reasonably start disagreeing with the law the more you understand how this law is applied to real people in real cases.
Good lawyers will excuse jurors based on how they will likely relate to the case being presented. For instance, here in Brazil, most defense lawyers will excuse jurors of Japanese origin based on the idea they would impose tougher moral standards than other groups.
Lawyers are obliged to always offer the best possible defense to the extent of their abilities, and that includes selecting a biased jury if that's possible.
Thanks. I've never been on a jury so I'm totally unaware of the selection process. It seems less unfair that both sides get to excuse jurors; still, on average, it seems it would drastically skew the pool of jurors away from a random sample of the general populace.
> still, on average, it seems it would drastically skew the pool of jurors away from a random sample of the general populace.
A jury pool has never been meant to represent a random sample of the general populace.
Indeed that would be enormously counterproductive: in, say, a Klan dominated county we might expect a random sample of the county populace to turn up 9 racists in a sample of 12, but that is not a jury makeup likely to result in a fair verdict for a black defendant.
All of these questioning and dismissal mechanisms exist to make sure that the jury pool is absolutely NOT 12 random people, but is instead as close to a collection of 12 people who are believed to be able to return an impartial verdict as can be reasonably managed in the opinion of the court, by balancing the concerns of both prosecution and defence council.
It's worth remembering that jury nullification is a two-way street.
Nullification is most famous for its history in racially-charged trials in the American South. Southern jurors would refuse to enforce criminal laws if the accused was white and the victim black. Nullified jury cases were one of the tensions that led to the American Civil War.
That's one of the justifications for the power to dismiss jurors - for the sake of justice, law must also have the power to protect minorities who are very unpopular, even, and indeed especially, if the unpopularity is so severe that very few randomly selected people would agree to enforce a law on the minority's behalf.
The problem, of course, is that just because there is no guarantee that nullifiers are right, it does not follow that they are wrong either. However, because jury nullification has its greatest historical significance in the United States when it was used to persecute blacks, legal doctrines which support jury nullification are, by association, not very popular, while legal tactics which allow prosecutors to make their case in the face of potential jury nullification are considered acceptable.
The idea is to find jurors as close to the "impartial" ideal as possible.
So - if a murder case is being tried - and someone whose family member is a murder victim is called to the jury - they're probably not a great impartial arbiter in that case.
Juries are to be impartial and decide only upon the evidence that is put forth by the prosecutor and defendant as it relates to the charges and the law that defines those charges. If a juror states up front that they'll vote one way or another, without hearing the evidence, based on some prejudice then they will be disqualified.
But selecting juries based on that trait (or any trait for that matter) is in direct conflict with one's right to trial by a jury of his peers (presumably defined as the general populace). Once you predicate the selection process, you skew a uniform sampling of "peers" and the jurors selected are no longer representative of one's "peers".
The "jury of your peers" concept isn't part of United States law at all. It is a part of British Common Law, but the governing rule in the US is the Sixth Amendment of the Constitution of the United States, which provides only for "an impartial jury of the State and district wherein the crime shall have been committed".
The "jury of your peers" language, whose origin is the Magna Carta [1], is included in the constitutions of a number of states, so the concept directly pertains in many American jurisdictions.
There is also a considerable body of federal case law applying the equal-protection clause of the Fourteenth Amendment to the process of jury selection. Since 1880, when the U.S. Supreme Court overturned a black man's conviction for murder due to the systematic exclusion of blacks from local juries [1], federal courts have consistently ruled that jurors must be selected indiscriminately from eligible members of the community. This is very close to the concept of a "jury of your peers".
It's called impartiality and is the notion that you should be judged based only upon objective criteria that is delivered by your accuser. In the US, impartiality is guaranteed by the 6th Amendment. Note, that the US Constitution does not say anything about a "jury of peers."
You'll find that jurors with higher education are often eliminated (prosecutors hate educated jurors, they tend to be harder to convince), jurors with law experience (even if it's as simple as a law class in high school) also tend to be eliminated, because they know at least a little something about standards of proof and nullification, etc.
The list of things that you can be eliminated for by either the judge or one of the attorneys (who get a limited number [3, I think] of eliminations) is staggering.
Before getting selected, they outline the case and ask if you know of any reason you couldn't be a fair and impartial juror on this case. Conflicts of interest, etc. At this point, saying "I won't convict for marijuana possession or use under any circumstances" is allowed, but could easily disqualify you depending on how the judge is feeling. Certainly the prosecutor is gonna feel some pressure to cut a deal.
Yeah, it is a little weird, but it's hard to think of a way to fix it without making it potentially much more abusive.
It's more likely that during interviews it became clear that the jurors knew about nullification and they were excluded from the pool for that reason. It then probably dwindled the size of the pool enough that the Judge became concerned about being able to find jurors that are unaware of nullification.
The Jury selection process, from what I understand, tries to exclude anyone that might know about nullification specifically because they don't like the Jury having more social power than the Judge.
I kept waiting for the author to mention the Fully Informed Jury Association. I somehow stumbled upon their website over ten years ago and first heard of jury nullification. It's awesome they're still at it.
> But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.
It has been my impression that we increasingly live in a world where rights can be taken away from the many to deter abuse by the few.
I'm a little disappointed that the article doesn't mention a serious practical impediment to nullification - the "voir dire" process of juror selection. They ask you a series of questions, one of them usually being "Will you apply the law as I explain it to you?" You are 100% within your rights to answer no - they'll excuse you from the jury. If you say "yes", however, but you mean "no", then you have committed perjury. You won't get caught if you're crafty about it, but it's still a relevant detail. A more accurate title might have been: "People can do whatever they want as long as they're OK going to jail if they get caught"
I answered that I would be willing to vote guilty if the law and the facts supported such a verdict.
This is absolutely true, and I am free to nullify (without having lied) if I find the law doesn't support such a verdict.
I'm wondering though what happened to the guy in NY (came to the comments here hoping someone had tracked that down). He was arraigned in Feb of this year.
Very unlikely this would occur. Jury deliberations are considered sacrosanct in American jurence prudence. You are under no obligation to explain your reasoning to anyone when deciding a verdict. And courts have been traditionally very wary of allowing prosecutors to delve too deeply into them to go on fishing expeditions unless a very specific procedure has been shown to have been violated.
The prosecution would essentially have to read your mind to demonstrate that you somehow "lied" in answering the questions during jury selection, which is why what you're describing virtually never happens. And there's always the plausible defense that you simply changed your mind as the trial unfolded.
This sounds reasonable - but doesn't refute my main point - that nullification, while not a criminal act, can often not be applied without first committing a separate criminal act, and that one should be aware of this fact and take appropriate precautions.
my high school american studies teacher would recommend stating "I firmly believe in the right of jury nullification" to get out of jury duty–he was of the opinion that jurors who voiced their awareness of this right were almost never selected. I'd be curious to know if this was actually true
In Britain jurors can ask questions of witnesses and the accused. At the end of a trial day, the judge will ask if the jury has any questions. When I was on a 3 week trial, I had a page-full of questions every day. I identified issues that both the judge and prosecuting counsel missed.
I understand why people wouldn't want to be part of the system that punishes people for something the juror doesn't think should be illegal. But it isn't your job, as a juror, to write the laws. The honorable thing to do is to answer truthfully when they ask you if you can apply the law in the case you've been assigned.
Having said that, let me say I think prosecuting a guy for handing out nullification leaflets is a gross abuse of power.
You realize that jury nullification is a legal part of the system right? "But it isn't your job, as a juror, to write the laws." might be what a judge tells a jury, but that doesn't make it true.
But that's what (correct me if I'm wrong) nullification is for: to allow the jury as a unit an independent mind, and to not force them to enforce laws they believe to be unjust. Their job is definitely not to write laws, but the founding fathers seemed to think part of their job was also--to a limited extent--another check and balance against the system.
Remember, a central idea in the Constitution is a balance of power, often called "a system of checks and balances". Much like the 2nd Amendment, the jury system is partly about preventing the government from taking too much power from the people. Deciding if a law was broken is part of it, true, but there are other aspects. For example one of the reasons for the jury is to decide if mitigating circumstances or evidence are valid enough that a violation of the letter of the law is still acceptable. A bad or unjust law is definitely a mitigating circumstance.
You frequently see people put behind bars or otherwise punished for absurd violations of absurd laws, which even the members of the jury find stupid, because they are told that their opinion of the law doesn't count, even when the law is obviously being applied in an unfair or power grabbing way. Jury nullification is a powerful tool against such abuse and absurdity.
Finally, look into the tenets of the common law system, upon which the US legal system is built. It is surprisingly enlightening, and will probably piss you off a bit at how things are currently being done (alternately, that we having fully purged it depending on your base mindset I guess :) ).
Yes. And the ultimate check on all of the other processes is the citizenry. We elect representatives of ours to write laws, we elect representatives of ours to execute laws, and we, through the jury process, judge those who are accused of breaking the laws that we (through our representatives) caused to be put into place.
In a very real way, the citizens of the jury are provided with power to prevent injustice in the application of the laws which have been put in place in our name.
I mean, it's not even halfway through the article:
"There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else."
I mean this in the nicest way possible, but did you read the article before commenting? Your exact example is mentioned in the article and the author gives their opinion; they would rather we have jury nullification with the potential downfalls than not have it.
These aren't issues with nullification, they are issues with the "jury of your peers" system in general.
Of course that, like democracy, is often deemed to be off limits for criticism simply because a few hundred years ago we agreed it was the best idea around.
Suggestions need not come in the form of fully formed plans. However the public is largely not open to suggestions for incremental improvements.
An easy improvement to the jury system would be to ensure all jurors are aware of the relevant rules. For example, they should all be aware that nullification is a legal option. Related to this, the system by which jurors are selected needs an overhaul so heavy that we might as well scrap the current system.
The issue addressed is not one of judicial efficacy or reliability. It is, yet again, another instance of placing limits on systems that apply "rule of law". So the specimen of a "clearly unjust" action being ignored by a jury of "one's peers" is a red-herring. A people deserve their government and structural forms such trial by jury are designed precisely to deliver them that government, without undue oppression.
But it's important to point out the dominant view and the current view of jurisprudence views jury nullification as kind of an unfortunate edge case. Here's the Fourth Circuit from 1969:
"We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."
In other words, jury nullification is not a defense against injustice, but a side effect of having trials by an independent jury of ordinary citizens.