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Jurors have a power so secret even they may not know about it.
January 22, 2010 2:00 PM   Subscribe

Jury nullification, a situation in which jurors acquit in a criminal trial even if the facts favor conviction (often because the jurors disagree with the law), is of ancient provenance in the Anglo-American legal tradition. Courts are ambivalent towards it, regarding it both as quasi-illegal (they'll remove jurors if they catch them during the attempt) and as something that they cannot overturn once it happens. Nullification has furthered many causes, from anti-death-penalty to pro-southern-lynchings. Lawyers can't mention it in court on pain of contempt, but some hope to educate people in other ways.
posted by shivohum (79 comments total) 20 users marked this as a favorite

 
Can your pro-jury nullification stance reliably get you out of jury duty if you bring it up in voir dire?
posted by mullingitover at 2:09 PM on January 22, 2010 [3 favorites]


The mere mention of belief in the ability of juries to nullify law is enough to keep you off any jury. Good to know if you want off.

I've always wanted to be on a jury and never gotten to do so, so I've never had to pull out that card.
posted by Seamus at 2:10 PM on January 22, 2010


I am fortunate to live in one of the US states where jury nullification is an explicit right of jurors, provided for in the state Constitution.

From Article 1, Paragraph XI of the Georgia State Constitution:

" In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts."


Of course, that doesn't keep offended judges and prosecutors from interfering with jurors exercising that right, but it's nice to know the provision is there.
posted by deadmessenger at 2:12 PM on January 22, 2010 [6 favorites]


I hope this title isn't a reference to the undergraduate thesis of Christopher Monfort.
posted by proj at 2:15 PM on January 22, 2010 [1 favorite]


Can your pro-jury nullification stance reliably get you out of jury duty if you bring it up in voir dire?

I actually tried Googling that for you, but all I find are "how to get out of jury duty" articles and no actual accounts from anyone who's tried it (except for some highly anecdotal claims).
posted by crapmatic at 2:24 PM on January 22, 2010


I had no idea a judge could just kick out a juror in the middle of the trial like that. I assume it isn't normal, but is it an extraordinary occurrence? Or does it happen with some degree of frequency?
posted by Carillon at 2:43 PM on January 22, 2010


My Criminal Law professor in law school, Paul Butler, was a big advocate of encouraging black people in low-income neighborhoods to jury nullify low-level drug possession charges against black men and women, as he felt that keeping these men and women in their communities was far more helpful than locking them up. His argument was more nuanced than that, but that was the gist.
posted by Falconetti at 2:43 PM on January 22, 2010 [6 favorites]


Prosecutors and defense attorneys are not blameless, but the attempts of otherwise smart, educated people to abdicate their civic responsibility will continue to ensure that I and others may never face a jury of "peers."
posted by anifinder at 2:44 PM on January 22, 2010 [9 favorites]


anifinder: Prosecutors and defense attorneys are not blameless, but the attempts of otherwise smart, educated people to abdicate their civic responsibility will continue to ensure that I and others may never face a jury of "peers."

Important to note that both of the nullification advocacy organizations the OP links to put as front and center the responsibility to serve in juries.
posted by l33tpolicywonk at 2:55 PM on January 22, 2010


Can your pro-jury nullification stance reliably get you out of jury duty if you bring it up in voir dire?

I was in a jury pool for a drug possession case and I was upfront about the fact that I would not vote to convict, regardless of the evidence. I was not selected.

I would have been happy to serve on a jury, but not for a drug case, sorry. I considered actually trying to get myself selected and nullifying from the jury box, but the dishonesty that would have involved didn't sit well with me.
posted by mr_roboto at 2:59 PM on January 22, 2010 [2 favorites]


I see it slightly different, anifinder. Yes, I see little value in individuals using jury nullification to get out of jury duty. It doesn't lend much credibility to the concept of jury nullification if everyone uses it as an excuse rather than a right.

But the idea that I have this right, may want to exert this right, and then will be removed from the courtroom if they find out I am exerting this right seems equally as irresponsible to me. If I have a civic responsibility to a suspected criminal to serve on a jury in order to assemble a jury of peers, does the legal system not have a civic responsibility to inform jurors about their rights as it refers to the trial?
posted by TheFlamingoKing at 3:06 PM on January 22, 2010 [4 favorites]


Prosecutors and defense attorneys are not blameless, but the attempts of otherwise smart, educated people to abdicate their civic responsibility will continue to ensure that I and others may never face a jury of "peers."

I'm a smart, educated person who would LOVE to be on a jury, but have never been called. But frankly, my understanding (from lawyer friends and those who've served) is that the vast majority of people who wind up before a jury are neither smart, nor educated, nor in any way my peers.

But I won't be sharing that impression with the judge if chosen.
posted by coolguymichael at 3:18 PM on January 22, 2010


It is possible to strongly hint to the jury that they can nullify. Historically (and this is reflected in many state jury instructions) juries in criminal cases are the exclusive judges of both the law and the facts. Therefore, in my closing argument, I will hammer that they are the exclusive judges of the law as it is applied to these facts. I try to emphasize that it is their role --- and their role alone --- to determine whether a crime was committed. Emphasizing that it is their exclusive role, in my view, lets them know that they can reach whatever result seems just to them.
posted by jayder at 3:36 PM on January 22, 2010 [3 favorites]


Jury nullification is the whole point of a right to trial by jury of your peers. It should be taught in every civics classroom in the country.
posted by jock@law at 3:51 PM on January 22, 2010 [31 favorites]


I would happily lie by omission if necessary to get on a drug possession jury, so that I could refuse to convict, whether by Jury Nullification or a simple refusal to vote "guilty." The War on Drugs needs to end, we don't need any more non-violent drug offenders in jail.

Use a gun? Hurt somebody? Steal? OK, then it is a different case, but not for simple possession.

Too bad if that isn't the majority view, the majority is wrong on this. I happen to believe it isn't really the majority view in any case, just that people are reluctant to be honest about drugs.

Sadly, while called once, I have not been selected.
posted by Invoke at 4:16 PM on January 22, 2010 [5 favorites]


How many possession cases actually go to a jury trial? I'm guessing not many.
posted by letitrain at 4:36 PM on January 22, 2010


How many possession cases actually go to a jury trial? I'm guessing not many.

A hell of a lot more if they thought there was a good chance for jury nullification
posted by jock@law at 4:40 PM on January 22, 2010 [4 favorites]


Jury nullification is the whole point of a right to trial by jury of your peers. It should be taught in every civics classroom in the country.

Are there any civics classes left for this to be taught in?
posted by uri at 4:49 PM on January 22, 2010 [6 favorites]


I had no idea a judge could just kick out a juror in the middle of the trial like that. I assume it isn't normal, but is it an extraordinary occurrence? Or does it happen with some degree of frequency?

I'm sure it doesn't happen every case, but I doubt you'd call it an extraordinary occurrence. Usually juries are picked with extra jurors, so if in the case of sickness, emergency, or a juror doing something expressly forbidden by the judge (generally things that would result in a Judge excusing / kicking out a juror), you have replacements for the deliberation. Also, depending on the type of trial, civil / criminal and the starting number of jurors, you can remove quite a few jury members before you start hitting a constitutionally required number.
posted by Atreides at 5:04 PM on January 22, 2010


Jury nullification is the whole point of a right to trial by jury of your peers. It should be taught in every civics classroom in the country.

Boy, no kidding. Any judge or lawyer even hinting that they don't like this activity should be disbarred. Hello, *we are the people*. If we don't like the laws, maybe we shouldn't have them.
posted by DU at 5:23 PM on January 22, 2010 [1 favorite]


Hello, *we are the people*. If we don't like the laws, maybe we shouldn't have them.

This seems sensible until you realize it's how the Klan felt about laws against lynching.


I'm just sayin'.
posted by mr_roboto at 5:31 PM on January 22, 2010 [7 favorites]


If we don't like the laws, maybe we shouldn't have them.

Did you get your law textbook from the Sweet Pickles Legal Bus?
posted by dhammond at 5:53 PM on January 22, 2010 [1 favorite]


There was an absolutely remarkable episode of Frontline many years ago called "Inside the Jury Room", where the producers had succeeded in obtaining permission to film a complete case, including the jury deliberations. To call this rare would be an understatement.

What was so remarkable about it was that the case ended up being a study in jury nullification -- the odds against this happening in a jury trial selected nearly at random are huge. The case was one where the jury found, amongst themselves, that while it was an open-and-shut case and the defendant had clearly committed the offense he was charged with, they didn't think the law or its penalty should be applied in this particular cifrcumstance. Some of them knew that jury nullification was permissible, and convinced the rest that the option was available.

Even more remarkable is the fact that the defense told the judge in chambers that he wanted to give the jury some hint that they had this right, and the Judge (while agreeing that the jury did have that right) told him that under no circumstances could he do so.

ISTR some followup interviews with the filmmakers expressing their amazement at the luck that gave them this case.
posted by George_Spiggott at 6:30 PM on January 22, 2010 [11 favorites]


Hello, *we are the people*. If we don't like the laws, maybe we shouldn't have them.

This seems sensible until you realize it's how the Klan felt about laws against lynching.
posted by mr_roboto


Thing is, I suspect in most places where a lynching occurred in the first place the lynchers *already knew* that no jury would convict them, even if "jury nullification" wasn't already an established right.
posted by Reverend John at 7:12 PM on January 22, 2010 [1 favorite]


There's an old joke that goes like this:
A man was accused of stealing a mule from a hated rich citizen, at the trial, the evidence was clear. Feeling sorry for the accused, the jury came back and said "If he gives back the mule, we find him not guilty". The judged sent them back, saying that he was either guilty or not guilty, no conditions. So the jury deliberated some more and came back out. The foreman stood up and said "Not guilty, he can keep the mule".
posted by 445supermag at 7:13 PM on January 22, 2010 [7 favorites]


The JuryBox site that is linked contains a piece of misinformation that makes it apparent that its sponsors are not fully cognizant of the law:

A jury that delivers a not-guity verdict on a defendant who has broken an established law therefore nullifies that law for the case being tried. Since our legal system is based upon precedent, it then makes it possible for future cases to introduce the jury's verdict for the nullified case as a basis for acquittal, and a pattern of acquittals effectively makes the law null and void even though it may remain on the books.

"Precedent" describes the process by which appellate and lower courts follow previous decisions by appellate courts. It has nothing to do with jury verdicts.
posted by megatherium at 7:43 PM on January 22, 2010 [1 favorite]


I'm a big fan of jury nullification, and if I ever get on a jury I'll nullify the shit out of some low level drug thing. And that's not something I'd share for any "any reason you shouldn't be on this jury" type question. Fuck you lawyers and judges, with your law upholding and maintaining. Jury nullification is cool.
posted by graventy at 8:26 PM on January 22, 2010 [3 favorites]


FWIW,

I just had the privilege of attending a Motion Session at my law school, with Judge Young presiding. For those of you that don't know Judge Young, he's a District Court Judge for the District of Massachusetts , who served as chief justice from 1999-2005(?). He's fairly well known for trying Richard Reid, the shoebomber, and also specifically for this issue of jury nullification.

Sometime in 2008, he had a federal drug case, in which he discovered that one of his jurors was attempting to invoke jury nullification in order to aquit the defendant on the drug charge, which the juror believed was unconstitutional. Judge Young threw out the juror mid-trial, which is a pretty serious thing to do. This is the memo he issued explaining his reasoning. It was covered by the Boston Globe and also in popular legal blogs, many of which questioned his "thin" reliance on precedent. He now requires his jurors to take an oath prior to service, and might be the only judge who does this. The oath states:

"Would you be able to set aside your own reading of the Constitution, the judge’s past instructions, and judge the facts based solely upon the judge’s explanation of the law?"

Judge Young seemed unconcerned with the negative coverage he'd been receiving, and offered an explanation for his position that I found quite convincing. If he were to allow a jury to aquit not on the basis of law, but solely on the basis of their beliefs and convictions, the converse would also be true. The jury would then be free to uphold convictions on an entirely ad-hoc basis, subject to the inherent biases and discriminatory beliefs of each individual juror. A defendant could be convicted on the basis of race, or because the jury didn't like the way the defendant looked. Young sees a need to police his jury in order to ensure the rule of law, and quite frankly I agree: the benefits of jury nullification are outweighed by the cost.
posted by HabeasCorpus at 10:05 PM on January 22, 2010 [6 favorites]


This makes more sense once I explain that after the motion session, Judge Young took questions from all the attending law students, and this issue came up.
posted by HabeasCorpus at 10:08 PM on January 22, 2010


If you read the history of trade union and democratic agitation in Britain you can see how significant the role of jury nullification was in keeping the state in check, albeit intermittently and and within definite limits.* Looking at social activism here in China now, where the prosecutors and courts are under firm political control, you realise how precious judicial independence and the notion of the rights of freeborn Englishmen, however compromised in practice, were to creating some small breathing space for progressive action.

* For example: "The government during the trials of the members of the London Corresponding Society (LCS) sought to redefine treason, but the humiliating acquittals of Thomas Hardy, Rev. John Horne Tooke and the others (Thomas Hardy was acquitted after the jury deliberated for little over three hours. Horne Tooke was acquitted after eight minutes deliberation. See the group of documents on the "Suspension of Habeas Corpus Act" for more background on the LCS) forced the government to pass new laws in order to quiet the Radical movement." From here.
posted by Abiezer at 11:30 PM on January 22, 2010


@HabeusCorpus, I see what you are saying. I even agree to some extent. It doesn't change the fact that it is a right, and not one a judge can take away, no matter how well intentioned. He's wrong under the constitution, and this gives me the right and the responsibility to lie to protect my rights and the rights of those under trial.

In short, the fact that his arguments are logical and well reasoned does *not* take away my right to nullification. Nor does it excuse the unlawful requirement to take an oath. That oath is rendered void by the fact that he has no right to require it.

In short, even if "the benefits of jury nullification are outweighed by the cost.", that fact is irrelevant, without an amendment to the constitution. Period.
posted by Invoke at 11:30 PM on January 22, 2010 [2 favorites]


without an amendment to the constitution
Invoke

What part of the Constitution includes the right of jury nullification? There are several arguments for jury nullification, but the one you're making is the weakest. Contrary to what you're saying the Constitution says nothing about this issue, and the courts have issued conflicting, ambivalent rulings on the issue over the years.
posted by Sangermaine at 11:52 PM on January 22, 2010


What part of the Constitution includes the right of jury nullification?

He's talking about a grotesque misinterpretation of some state constitutions, where "the jury shall be the judges of the law and the facts." is being misinterpreted to mean that a jury can and should disregard a law that they don't like. Which is completely ludicrous. The phrase "judge of the law" in this context means solely that juries can decide what the law means when a statute is legitimately and truly ambiguous.

Jury nullification casts aside the most basic premises of a rule of law. It allows juries to find people not guilty who are inarguably guilty, and allows juries to find people guilty on the basis of no evidence, because of their personal feelings on the case and not anything to do with anything relevant - finding people not guilty on drug possession because they don't think drugs should be illegal, or finding black people guilty of crimes because they don't like black people. It's a repugnant concept to anybody with any concept of ethical behavior, and irreconcilable with a belief in rule of law.
posted by kafziel at 1:05 AM on January 23, 2010 [4 favorites]


I should think the Constitutional basis would be simply that there is no Constitutional basis to decide a case any other way than how the jury decides. Does the Constitution say that a jury must weight certain factors, or follow certain protocol? Or simply that every accused is entitled to a trial before a jury of their peers? Jury nullification, even if not an explicit right, is an implicit one because if I end up on a jury and feel a law is unjust or unjustly applied, I can simply vote "not guilty". At worst it's a hung jury and a mistrial, and unless I'm overly vocal as to why I won't even be removed from the jury by a Judge Young type.

The fear posed by Judge Young, and by extension Habeas Corpus, that the dark side of jury nullification is wrongful conviction is without basis, and is all the more troublesome because it suggests Judge Young is willing to "rig" the system to produce the desired outcome (conviction) in his personal opinion. The reality is that wrongful conviction by biased juries already happens today, and at least the protection for a baseless conviction due to a rogue or biased jury is the (general) requirement for a unanimous verdict and an outlet in the appeals process- although I presume that courts are loathe to overturn jury verdicts without extraordinary grounds. If a semi-random sampling of 12 of your peers all want you convicted even though they actually believe you innocent... your whole town has a serious rot that Judge Young cannot protect against with his "oath".

However, to a layman like myself it seems (happily) that the jury deck in our Constitution was stacked towards allowing the guilty to go free more than convicting innocent. Protection against double jeopardy, jury trials, right to defense counsel, appeals processes, etc. It's not perfect, but it's admirable when it works. Jury nullification is just one other way of having the community decide the validity of their laws most directly, more so than a biannual vote.

If say 25% of the population felt the drug war was unjust, and jury nullification was well known, then trials in the "War on Drugs" would have only a 3% chance of getting all 12 jury members from the "Fry the pot-smoking hippie bastards!" pool; while a hung jury may result in a new trial, the local government would probably tire of wasting resources on trials they can't win.

I can see where the flip side again is the hung jury in the Byron de la Beckwith trials, but again that represents a systemic problem deeper than a particular case. Jury nullification allowing him to walk free was not a good thing- but then, again, the jury nullification occurred regardless of the jury being informed of that 'right'.
posted by hincandenza at 1:08 AM on January 23, 2010 [6 favorites]


Jury nullification is just one other way of having the community decide the validity of their laws most directly, more so than a biannual vote.

I think that's a step too far: this is a last resort against injustice, not a routine part of the legislative system. kafziel is surely right that we need to be wary of undermining the consistent and impartial application of the law. On the other hand, I agree that the right of juries to make up their own minds must include the right to make decisions that appear perverse - or juries don't amount to much.

I don't think this is actually a secret power at all, though it may be a "secret" that it's called "nullification". I think most juries assume they have absolute discretion, and if anything it comes as a surprise that they can be directed by a judge.
posted by Phanx at 2:13 AM on January 23, 2010 [4 favorites]


It's ironic that the same folks who whine and cry about activist judges are the ones who now think 12 randomly selected people should be able to arbitrarily overturn legislation whenever they feel like it.

The notion that jury nullification is the whole point of a right to trial by jury of your peers is not even remotely correct. Jurors are there to determine whether the facts introduced in evidence by the prosecuting party meet the burden of proof, not to sit as an ad hoc superlegislature charged with deciding whether a given statute was wisely passed under the circumstances of the specific case.
posted by minimii at 5:23 AM on January 23, 2010 [1 favorite]


HabeasCorpus: "If he were to allow a jury to aquit not on the basis of law, but solely on the basis of their beliefs and convictions, the converse would also be true. The jury would then be free to uphold convictions on an entirely ad-hoc basis, subject to the inherent biases and discriminatory beliefs of each individual juror. A defendant could be convicted on the basis of race, or because the jury didn't like the way the defendant looked."

He lives in the land of make believe if he doesn't realize this already happens.
posted by graventy at 6:45 AM on January 23, 2010 [1 favorite]


What part of the Constitution includes the right of jury nullification?

it's a common law right - not all of our laws or rights are derived from the constitution
posted by pyramid termite at 7:03 AM on January 23, 2010 [4 favorites]


If he were to allow a jury to aquit not on the basis of law, but solely on the basis of their beliefs and convictions, the converse would also be true.

He is actually saying that the jury should rule based on his interpretation of the law. Hence, jury instructions. Jury nullification has led to some bad people going free. But jury nullification also serves as a chance for the People to counteract unjust laws. In their infinite wisdom, some courts have now decided not to let the jury know of the sentence of the accused in order to avoid nullification.
posted by ryoshu at 7:20 AM on January 23, 2010 [1 favorite]


The fear posed by Judge Young, and by extension Habeas Corpus, that the dark side of jury nullification is wrongful conviction is without basis, and is all the more troublesome because it suggests Judge Young is willing to "rig" the system to produce the desired outcome (conviction) in his personal opinion. The reality is that wrongful conviction by biased juries already happens today, and at least the protection for a baseless conviction due to a rogue or biased jury is the (general) requirement for a unanimous verdict and an outlet in the appeals process- although I presume that courts are loathe to overturn jury verdicts without extraordinary grounds. If a semi-random sampling of 12 of your peers all want you convicted even though they actually believe you innocent... your whole town has a serious rot that Judge Young cannot protect against with his "oath".

Well put. I don't find Judge Young's explanation to be convincing at all. The wrongly convicted can seek relief through an appeal or pardon. Jury nullification is direct feedback from citizens to the legislature, and his is a rather light dismissal of an important check and balance of power.

The real dark side of jury nullification is when a community has a strong prejudice against an ethnicity or perhaps a particular family, and because of acquittals by jury nullification, law enforcement is unable to protect those individuals. This could make it very difficult to effectively deal not only with political terror organizations like the KKK, but also local criminal groups that are well integrated into the community.

On the question of whether or not juries are there to, in part, judge the law, this passage from the FIJA's pdf on state constitutions deserves some attention, "There is no doubt that jury nullification was one of the rights and powers that the people were exercising in 1791 when the Bill of Rights of the United States Constitution was adopted. As legal historian Lawrence Friedman has written:

'In American legal theory, jury-power was enormous, and subject to few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. This idea was particularly strong in the first Revolutionary generation when memories of royal justice were fresh.'

Jury nullification is therefore one of the “rights . . . retained by the people” in the Ninth Amendment. And it is one of the “powers . . . reserved . . . to the people” in the Tenth Amendment."
posted by BigSky at 7:44 AM on January 23, 2010 [5 favorites]


Jury nullification casts aside the most basic premises of a rule of law. It allows juries to find people not guilty who are inarguably guilty, and allows juries to find people guilty on the basis of no evidence, because of their personal feelings on the case and not anything to do with anything relevant

Huh. Interesting claim.

So lets see your defense of the spending of large Corporations in the law making process to create laws that benefit the Corporations and not the citizens. Be sure to include an environment where the "free speech" of the Corporation is backed by the large budget VS the budget of the citizens.

For added bonus - do discuss "rule of law" applying equally to everyone.

Because Ryoshu's point " the People to counteract unjust laws" you just don't seem to grok.
posted by rough ashlar at 7:44 AM on January 23, 2010


The notion that jury nullification is the whole point of a right to trial by jury of your peers is not even remotely correct.

Bullshit. You don't have the first clue what you're talking about. The Zenger trial and the Magna Carta were part of the background understanding of the Founders. Jury nullification was not at all uncommon in the time of the Revolution, and when the Founders codified the right to a jury, it was that idea of a jury they were codifying. Jury nullification is and was an ordinary part of what the jury is all about, and if the Founders had intended to water down the idea of a jury, they would have. The conspicuous absence in the Constitution of any limit on the power of the jury speaks volumes. Volumes which you, apparently, are deaf to.
posted by jock@law at 8:02 AM on January 23, 2010 [2 favorites]


"The general rules of law and common regulations of society ... are well enough known to ordinary jurors. The great principles of the constitution are intimately known; they are sensibly felt by every [American]; it is scarcely extravagant to say they are drawn in and imbibed with the nurse's milk and first air. ... [I]s a juror obliged to ... submit the law to the court? Every man, of any feeling or conscience, will answer, no. It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

John fuckin' Adams, bitches.
posted by jock@law at 8:16 AM on January 23, 2010 [11 favorites]


In court, the prosecutors are all lawyers. The judge is a lawyer. The defendant is entitled to legal representation, and it’s provided for free if he can’t afford his own. Everyone in the room is well trained in the law, or given professional access to someone who is.

Except the jury.

The judge, I guess, is supposed to provide all the legal guidance the jury "needs". But the judge's interest is as a party of the state. Which is why we go to the trouble of importing 12 people – of the people – to rule on matters before the court. It's a clear conflict of interest.

And because of that conflict of interest, we fail to give the jury adequate legal advice. Can you imagine a defense lawyer failing to inform a defendant of such a pertinent right as jury nulification? If it were a right of the defendant instead of the jury, it would be included in the Miranda warning.

Can you imagine a prosecutor who would fail to account for its possibility? Of course not. All the professionals in the room know about nullification. The only people who don’t – the people who’re forbidden to know – are the people in whom that power rests. The situation is Kafkaesque.

Setting aside the way that educated citizens are routinely subject to peremptory challenge, or the routine challenge of legal professionals from jury duty for cause, we’ve created a legal system where the jury is deliberately kept ignorant by the only person in any position to give it advice – the judge.

I’m starting a movement. Juries need lawyers: from the ACLU or the public defender’s office, or any damn place. I’d take a wiseass contrarian first year law student with access to findlaw and Black’s dictionary. Something – anything – to keep our justice system from treating the jury like so much sequestered veal.
posted by Richard Daly at 8:52 AM on January 23, 2010 [9 favorites]


Bullshit
No doubt the Zenger case was well known, Jock. Extrapolating from that knowledge of a single instance of a jury refusing to cooperate in a patently corrupt trial to the statement that nullification formed the "whole point" of the constitutional right to jury trial 60 years later is unwarranted. I am unaware of any aspect of the constitutional convention that supports this point of view.

There is no question that nullification occurred then and occurs now; what is not correct or historically accurate is your unsupported opinion that the founders anticipated that the legislative and legal systems they were forming were intended to be so routinely corrupt that the "whole point" of having juries was to override these institutionally deficient branches of government.

It is not an ordinary part of what juries are about. Every metropolitan courthouse in every state has lots of juries hearing lots of cases every day. There is no epidemic of jurors rejecting statutory law on a regular basis.

It is only notable when it (infrequently) happens.
posted by minimii at 8:57 AM on January 23, 2010


It is not an ordinary part of what juries are about.

"It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision... you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy" -- State of Georgia v. Brailsford, 3 U.S. 1, 4 (1794)

I could try to go further back in US jurisprudence, but that might be difficult for obvious reasons.
posted by ryoshu at 9:09 AM on January 23, 2010 [5 favorites]


Ryoshu, as Sangermaine and kafziel have alluded to upthread, that kind of language does not establish dispositively judicial recognition of nullification.

My point is not that one cannot find references by caselaw or John Adams quotes that address the issue; but that even if we assume juries have the right to legislate from the box, it is not happening on a routine basis as a practical matter.

Richard Daly, why do you assume the judge's interest is the same as the state? Just as jurors do, judges take an oath: I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me ... under the Constitution and laws of the United States. This is the federal language, but all states have some similar version.
posted by minimii at 9:45 AM on January 23, 2010


Without jury nullification, we wouldn't have freedom of speech: http://www.law.umkc.edu/faculty/projects/ftrials/zenger/zengeraccount.html

I find it offensive that a judge can outright lie by denying the common law of jury nullification in their judge's instructions. Human beings are wired to trust authority and are unlikely to question the authority of a fricking judge (Think Milgram experiment on steroids.) There's an obvious conflict of interest here, too, because judges' careers are made less powerful and more irrelevant by jury nullification, so of course they will deny it when given the chance.

In the US we believe that there is guidance above and beyond judges and above and beyond the law: The People. In fact, there's guidance above and beyond that, the inherent rights of all Mankind. Judges exist to insure not just the rule of law, but that majority rule doesn't trample inherent rights. Their duty should be first and foremost to inherent rights, because that's the source of all law. It's bullshit when they favor otherwise. Nullification is an inherent right.

Following this logic, there is a clear moral difference between lynching nullification and drug war nullification. No society ever has upheld a moral right to murder and the Judeo-Christian Ten Commandments basis of our system of law makes that pretty clear as well. Lynching acquittal juries undoubtedly knew the 10 Commandments and decided to favor the authoritarian rule of violent race oppression above and beyond law and above and beyond morality and above and beyond human rights. Drug war nullification as it is usually argued is the total opposite situation, it suppresses authority in service to inherent rights.

So, here's an idea: Let defense attorneys argue on the basis of human rights, but hold them in contempt if they argue on the basis of prejudice. Hold a juror in contempt if they openly advocate nullification on basis of prejudice, but allow nullification on basis of inherent human rights. Seems pretty straight forward to me: The highest law is that all people are equal and have inherent rights. This passes the lynch mob test, it passes the mafia don test and it decentralizes power away from the powerful in all cases.
posted by Skwirl at 10:05 AM on January 23, 2010 [3 favorites]


Or just have jurors take that there judges oath. Perfect.
posted by Skwirl at 10:08 AM on January 23, 2010


Ryoshu, as Sangermaine and kafziel have alluded to upthread, that kind of language does not establish dispositively judicial recognition of nullification.

I'm really trying to grok this. Are we reading the same words from the first Chief Justice of the Supreme Court? John Jay is telling the jurors that they are the judges of the facts and the law. So let's work this out to its logical conclusion: if the jurors -- being the judges of law State of Georgia v. Brailsford, 3 U.S. 1, 4 (1794) -- judge the law to be unjust, what should the jurors do?

Sometimes the law is an ass.
posted by ryoshu at 10:14 AM on January 23, 2010


I was on the jury panel for a federal weapons violation. The defendant already had several other drug distribution charges that he was convicted on in a separate trial. He also had a shotgun and a handgun in his apartment. The trial I was in on was on his charged based on a new law that made having guns in conjunction with felony amounts of drugs a mandatory felony, and the wording of the law was very unambiguous. Regardless of his intent, he was guilty of that charge with no question, but the fairness of the charge or law could certainly have been called into question. He lived in a crappy apartment in a crappy part of town. The construction worker next door also probably had a shotgun. Several of us on the panel really weren't happy about delivering a guilty conviction on something that really had no wiggle room for interpretation (with one person completely against a guilty ruling even though she had no idea how to read the law, even when we diagrammed it for her). I doubt we would have employed jury nullification had we known about it, but it might have been a possibility to consider.
posted by Burhanistan at 10:16 AM on January 23, 2010


ryoshu:
I'll give it a shot.
There is an initial premise that the law in question is an expression of the will of the people by virtue of its legislative origin. ( I recognize this is an entirely debatable, and separate, proposition.)
In order for the legal system to have legitimacy, it must be consistent in its application of the law.
If it is to be consistent, the law must be applied equally to those who run afoul of it.
If jurors can disregard the law as they choose under the circumstances of the case before them, then it is no longer consistent, and hence no longer legitimate.

tl;dr: Trial courts apply the law, they do not make it.
posted by minimii at 10:25 AM on January 23, 2010 [1 favorite]


I'm really trying to grok this. Are we reading the same words from the first Chief Justice of the Supreme Court? John Jay is telling the jurors that they are the judges of the facts and the law. So let's work this out to its logical conclusion: if the jurors -- being the judges of law State of Georgia v. Brailsford, 3 U.S. 1, 4 (1794) -- judge the law to be unjust, what should the jurors do?

No, John Jay is telling the jurors that they are the judges of law in controversy as well as facts in controversy. Like I said, the role of the jury as "judge of law" is limited to when the law is legitimately ambiguous. If you actually read Georgia v. Brailsford, the case turned on the effects of a treaty on the debts of three people - a matter where it was not clear what the law governing these facts actually was.

Let me draw a hypothetical here. Common law burglary consists of breaking or entering into the dwelling house of another at nighttime, with intent to commit a felony therein. Suppose, somehow, that we managed to have this crime, but without any statute or case law or anything precedential or dispositive to tell us exactly what "dwelling house" meant. A guy's charged with burglary for breaking into someone's summer home and stealing some jewelry in January. It's a house where people can and sometimes do "dwell", but nobody was living there at the time of the crime. The prosecution is arguing that it's a dwelling so long as it's built and maintained with the intent of being used as a dwelling, whether or not someone actually lives there at the time, and the defense is arguing that it's not a dwelling house unless someone currently dwells there.

THAT is the sort of ambiguity that the jury, as "judge of law in controversy", can resolve. And get appealed and get an actually meaningful definition through appellate case law. It almost never comes up.
posted by kafziel at 10:55 AM on January 23, 2010 [2 favorites]


First, I see that in my absence, some people have imparted Judge Young's beliefs onto me without my consent. I want to point out: in my first post I wasn't really crusading for Young so much as stating that I had found his initial discussion defending his actions compelling.


Second, now that I've researched and read the issue, I'm still not sure where I fall. But it's certainly not in the gung-ho jury nullification camp. I do admit that Young's beliefs seems to ignore the fact that (a) jury nullification has been used for both good and evil, throughout the history of american courts, and its overall effect might be something of a wash; and (b) Young's interpretation does seem to ignore the intentions of the Founding Fathers, which is problematic if you're an originalist, or at least give the theory some weight. [sidenote: IMO, the original intent of the founders is certainly a factor to be given serious weight when determining an issue, but is in no way dispositive of the issue. I see a lot of problems arise when someone like Scalia carries the theory to it's extreme. But this is an issue for another day. If anyone is interested in having a discussion about this, lets take it to the grey]

However, I think the problem really lives or dies on one major point: who who has the power to interpret the Constitution? I am not particularly convinced that the Framer’s intended to grant invidivual jurors the right to their own Constitutional theories. It seems to me that once ratified by The People, the Constitution implicitly grants the power of review and interpretation to the Courts. This hasn’t even really been a question since Marbury v. Madison. (Where, as John Marshall put it: It is emphatically the province and duty of the judicial department to say what the law is.)
posted by HabeasCorpus at 10:58 AM on January 23, 2010 [1 favorite]


Ryoshu: I want to throw my support with Minimii and Kafzeil here. There is a presumption that insofar as all statute is passed by a majority of legislators, who are the elected representatives of the general population, that all statute proceeds as "the will of the people." To allow a small population of jurors to override valid statute would indicate that we are willing to allow the few to invalidate the will of the many. This seems to be a principle directly at odds with a democratically based system of government.

If we are to allow room for jury based interpretation, it would be in the limited form that Kafzeil suggests: Jurors might be allowed to interpret the law only in cases where it is truly ambiguous- in situations where the express will of the legislature is unclear, and the legislative purpose of the statute cannot be readily divined. But then again, this may fall within the realm of judicially assumed powers (see my above note about Marbury). There are legitimate arguments either way. Nonetheless, I really do think that the power and limits of jury-based nullification rise and fall on this more limited issue of interpreting ambiguities in statutory law, not on a wild application of individual juror's beliefs.
posted by HabeasCorpus at 11:12 AM on January 23, 2010


minimii: "Bullshit
There is no question that nullification occurred then and occurs now; what is not correct or historically accurate is your unsupported opinion that the founders anticipated that the legislative and legal systems they were forming were intended to be so routinely corrupt that the "whole point" of having juries was to override these institutionally deficient branches of government.
"

I would say that the founders were indeed aware that legal systems could be corrupt. In fact, they had a little American Revolution about the whole thing.
posted by jefeweiss at 11:40 AM on January 23, 2010 [4 favorites]


Lot's of people are invoking the Founder's original intentions in this argument. I sometimes wonder about the validity of this theory, but so as not to derail, I've brought this separate discussion to the Grey, if anyone is interested in discussing it.
posted by HabeasCorpus at 11:42 AM on January 23, 2010


It seems to me that once ratified by The People, the Constitution implicitly grants the power of review and interpretation to the Courts. This hasn’t even really been a question since Marbury v. Madison. (Where, as John Marshall put it: It is emphatically the province and duty of the judicial department to say what the law is.)

Well, yes, but it is also emphatically the province and duty of the jury to say whether or not the defendant is guilty under the law.

I'm with jock@law: there's pretty much no way the Founders would have bothered with a complicated 12-person jury panel, only to say that the jury has to rule according to the way the judge interprets the law. If they'd wanted decisions in United States courts to hinge upon law robots which go BEEP BOOP BOP... GUILTY. BOOP BEEP... INN-O-CENT, they'd have given the final word to the judge, not the jury.

The point of the jury is that they are not law professionals, and do not necessarily value the law more than the rights of their fellow citizens. They're supposed to be another check-and-balance, not a rubber-stamp... and, IMHO, this shows very, very clearly in how absolutely terrified our current system is of jury nullification. If the system were operating according to the Constitution -- or even according to common goddamn sense -- jury nullification wouldn't matter one way or the other. That's the joy of checks and balances; they don't get in the way if the system is running as intended.

It's not. The main problem here is the fact that we imprison more people than China, in prisons that are deliberately nightmarish and horrible, largely for non-violent crimes. Given all that, the core of the problem is not the fact that some people are finally fed up enough to say "not guilty" on a jury panel... if anything, that's more like part of the solution.
posted by vorfeed at 11:44 AM on January 23, 2010 [13 favorites]


Throw me on the side of being really worried about where jury nullification takes us. If you want to change a law, do it through the legislature; anything else is profoundly undemocratic.

I'm well aware of the problems in the legislative process mentioned above, corporate power and all that, but a courtroom just isn't the place to address the validity of a law. Just because we might, individually, use that power for "good" by opposing the fucktarded War on Drugs doesn't mean it's a good idea to put that power in the hands of random laypeople. As has been covered amply above, the same power can easily be used against unpopular minorities.

This is especially true when you consider the mix of the ignorant, the crazy and the unemployable that usually makes up a jury. Problems in jury selection are, again, a separate problem.

Finally, jury nullification of a certain flavor happens all the time. for example: what prosecutors call a "Bronx Trespass." you just can't get a burglary conviction up there. It's also notoriously difficult to get any sort of drug conviction in Manhattan.

The John Adams above by jock@law quote sums it up quite nicely for me, though for the opposite conclusion that he meant it to demonstrate:

"The general rules of law and common regulations of society ... are well enough known to ordinary jurors. The great principles of the constitution are intimately known; they are sensibly felt by every [American]..."

Old J.A. is my favorite Founder, but that just ain't true, at least not anymore. Whether it's complex law, e.g. securities regulations, that is difficult even for lawyers to understand, or constitutional law that might give a counter-intuitive result, e.g. exceptions to the Fourth Amendment justifying warrantless entry / seizure, I feel much more confident that the rule of law and my Constitutional rights would be upheld by trained experts than a gaggle of random idiots from my block.

I mean, shit, look at the number of people who seem to think the Constitution mentions Jesus and Medicare, or that undercover cops have to tell you they're cops. I'm not saying the system we have is perfect by any stretch of the imagination, but there's a reason that we do things the way we do them, and separate powers and roles as we do, and it's better than the alternative.
posted by ScotchRox at 12:04 PM on January 23, 2010 [1 favorite]


Jury nullification is the law in this country. Full stop. There is no legitimate argument on this point. Anyone who knows the first thing about the history of the jury in the Anglo-American tradition knows that since time immemorial it was not merely a fact-finding body but was in fact instituted in the first place, by the Magna Carta, as a check against the lawmaking authority (the king) to make oppressive laws (e.g., that a certain act constituted treason).

Those who view appellate jurisdiction as being in conflict with jury nullification are ignoring a certain other provision that is key to making the American justice system work: the prohibition against double jeopardy. Once the jury finds the defendant not guilty, the man cannot be tried again, even if an appellate court determines that the jury applied the law incorrectly.

Jury nullification is a key component of Anglo-American criminal law. Period. Full stop. This is not a point in serious contention by anyone knowledgeable in the field.
posted by jock@law at 12:40 PM on January 23, 2010 [4 favorites]


Metafilter: BEEP BOOP BOP... GUILTY.
posted by EarBucket at 12:41 PM on January 23, 2010 [2 favorites]


Jury nullification is the law in this country. Full stop.

does not equal

Jury nullification is a key component of Anglo-American criminal law.


Saying something "is the law" is a completely useless generality. The right of free speech "is the law," but it still has limitations: e.g., libel.

This is not a point in serious contention by anyone knowledgeable in the field.

I dunno, I think this discussion, and ALL OF THESE LINKS seem to indicate otherwise. Judges, who I would say are knowledgeable in the field, seem to disagree universally.

I would further ask how something that happens so rarely (at least openly) could be considered a "key component."
posted by ScotchRox at 1:43 PM on January 23, 2010


Jefeweiss:
I get that, but having gone through the corruption of the British justice system and laws like the Alien and Sedition Acts, the whole point of what they were doing was to avoid Zengers, not institutionalize them as the underlying premise of their court system.

Vorfeed:
it is also emphatically the province and duty of the jury to say whether or not the defendant is guilty under the law.
Not only emphatically, but exclusively. But that is "has the state has proven the accused guilty beyond a reasonable doubt"; not "is the law just?" People who do not like the the objective of the law can always conclude that the state has failed in its burden and say "Not Guilty" without having to say "it shouldn't be illegal to grow two pot plants in your backyard."

no way the Founders would have bothered with a complicated 12-person jury panel, only to say that the jury has to rule according to the way the judge interprets the law.

It's not that complicated, really, but the job of the jury is to decide things like criminal intent, witness credibility, prosecutorial persuasiveness and so on. There's an awful lot for them to do without Larry the Lawn Guy weighing in on whether or not this particular case supports the idea that we should have hate crimes legislation.

Where this whole dialog kinda gets off on the wrong foot is the notion that trial judges are running around deciding what the law is in each case before them. Interpretation tends to be the province of appellate or quite infrequently, the Supreme courts. Apart from some new or esoteric statute, there's really not all that much interpretation of the law going on at the trial court level. The bulk of the criminal statutes have been around long enough that there is ample appellate precedent exploring the meaning of the statutes; so much so there are typically pattern instructions that are used to charge the juries. So yeah, the jury gets the framework of the law and then has to decide what the facts are, and do they rise to the level necessary to convict.

Well, that's enough from me for today. Time to stop talking about the bar and start patronizing one.
posted by minimii at 1:45 PM on January 23, 2010


This:

"The general rules of law and common regulations of society ... are well enough known to ordinary jurors. The great principles of the constitution are intimately known; they are sensibly felt by every [American]; it is scarcely extravagant to say they are drawn in and imbibed with the nurse's milk and first air. ... [I]s a juror obliged to ... submit the law to the court? Every man, of any feeling or conscience, will answer, no. It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

Is not jury nullification. It is pretty much the opposite: telling a juror that it is his right and duty to weigh his understanding, judgment and conscience is IN NO WAY saying they have the right to ignore what they see and "vote" how they feel about the law.

If juries were meant to make law, we wouldn't have legislatures.

The big difference here that there is a giant difference between a throughful juror refusing to convict because he is unconvinced by the prosecution, and attempting to convince a jury or other jurors to ignore the facts of the case and vote based on their feelings about the law. Especially since the court usually doesn't tell a jury how to vote. It is about admonishing jurors to view the evidence on their own, and make their own determination as to whether a law has been broken.

I don't have the word law in my name so maybe I'm not as convincing as others, but I always thought the jury of ones peers thing was to give the public and the accused confidence in the system. It would be easy for a government to run havoc and encourage judges to find people guilty because it is expedient. Instead, we allow regular citizens to sit in judgment. Judgment of the accused, not of the law. The state makes its case, and has to convince 12 regular folks of the person's guilt or innocence. The implication being that if the evidence is stong enough to convince a jury of ones peers, then the verdict is just.

We CANNOT be free if we don't believe in the fairness of the justice system. The idea that a jury ought to vote one way or another based on their feelings about the law or the defendant is a one way ticket to oppression. How in the world can we be free if we can't trust our justice system to render impartial verdicts??
posted by gjc at 3:00 PM on January 23, 2010


@Sangermaine, it is not the right of the courts to interpret the right to Jury nullification. It is my right, and as shown by several comments above, I think the argument for it is pretty damn strong. I'm not planning to defend it before the courts. Don't care really. I will act as my ethics state.

@kafziel "It's a repugnant concept to anybody with any concept of ethical behavior, and irreconcilable with a belief in rule of law."

Wow, hyperbole much? I do have a very strong ethical standard, and yet I somehow manage to have this strong belief. Perhaps my ethics are different than yours. Again, part of the very point of a jury system.
posted by Invoke at 3:14 PM on January 23, 2010


@mullingitover

No, citing jury nullification is not a sure-fire way to escape jury duty, but if thinking it does helps you learn about it....

I mentioned it during jury selection and was selected anyway. It was a counterfeiting case. A store clerk was on trial for 4 felony counts. He had been working in a store in South (central) Los Angeles that sold counterfeit Nikes, Ed Hardy t-shirts, Seven jeans, and New Religion jeans, among other wares. A woman was excused for declaring that she had worked at a law firm in NYC that dealt with counterfeit cases and, no matter the facts of the case, she couldn't find someone guilty of a felony for working as a clerk in a store when cases involving millions of dollars of counterfeiting on an institutional basis are often resolved between the parties or a small fine. We found him not guilty, as the counterfeit law in California states you must "knowingly" sell the item to be guilty of counterfeiting. We the jury did not find sufficient evidence that the defendent knew the items he sold were counterfeit.


Via Raw vs the Law on metafilter, I see that jury nullification is alive and well in Canada!
posted by GregorWill at 3:57 PM on January 23, 2010


If say 25% of the population felt the drug war was unjust, and jury nullification was well known, then trials in the "War on Drugs" would have only a 3% chance of getting all 12 jury members from the "Fry the pot-smoking hippie bastards!" pool; while a hung jury may result in a new trial, the local government would probably tire of wasting resources on trials they can't win.

Are you saying that it's a good thing that a 25% minority can effectively change the law to suit their needs?
posted by nomad at 9:03 AM on January 24, 2010


Are you saying that it's a good thing that a 25% minority can effectively change the law to suit their needs?

Should less than 600 people have the power to declare what *IS* law on a national level? Seems like a VERY small minority.
posted by rough ashlar at 1:51 PM on January 24, 2010 [1 favorite]


who are the elected representatives of the general population, that all statute proceeds as "the will of the people."

Yea, say...what WAS the will of the people on the bank bailouts?

Senator Barbara Boxer, Democrat of California, has received nearly 17,000 e-mail messages, nearly all opposed to the bailout, her office said. More than 2,000 constituents called Ms. Boxer’s California office on Tuesday alone; just 40 favored the bailout. Her Washington office received 918 calls. Just one supported the rescue plan.

Senator Sherrod Brown, Democrat of Ohio, said he had been getting 2,000 e-mail messages and telephone calls a day, roughly 95 percent opposed. When Senator Bernard Sanders, the Vermont independent who votes with Democrats, posted a petition on his Web site asking Mr. Paulson to require that taxpayers receive an equity stake in the bailed-out companies, more than 20,000 people signed.
“We certainly have never brought in 20,000 names in a day and a half,” Mr. Sanders said, sounding astonished. “For us, that’s off the wall.”


The 'will' of the people seemed to not be for the bailout. And yet - a bailout.

Do feel free to show the 'support' from the 'will of the people' - if you have some.
posted by rough ashlar at 2:01 PM on January 24, 2010


once ratified by The People, the Constitution implicitly grants the power of review and interpretation to the Courts.

I believe not a single person alive here on the Blue had any chance for input to ratify The Constitution. The People who gave consent are all dead.

Exactly when did any of the average, run of the mill American posters on the Blue "give consent"? And, exactly what is the way for said individual to revoke that "given consent"?

Isn't there a strong legal history of not being bound by the contracts agreed to by your parents? You don't have to pay their outstanding debts as an example....just wondering if "the power" was given by people long dead, when does that power come back for the new generation to agree to or not agree to under your theory.
posted by rough ashlar at 2:07 PM on January 24, 2010 [1 favorite]


Oh, and what if "The People" who are asking for a law are Corporations. I mean they *ARE* people, right?
posted by rough ashlar at 3:04 PM on January 24, 2010


Should less than 600 people have the power to declare what *IS* law on a national level? Seems like a VERY small minority.

They were elected by their constituents for the express purpose of making laws.

Juries are picked at random.
posted by gjc at 5:10 AM on January 25, 2010 [1 favorite]


Jury nullification has a great history, for good or for bad. I think I'll use it when I'm finally called for a jury trial and the accused has to do with using or selling drugs. As guilty as anyone is, continuing prison capitalism is racist.
posted by goofyfoot at 6:17 AM on January 25, 2010


A recent example of nullification.
posted by prefpara at 8:17 AM on January 25, 2010 [6 favorites]


We CANNOT be free if we don't believe in the fairness of the justice system. The idea that a jury ought to vote one way or another based on their feelings about the law or the defendant is a one way ticket to oppression. How in the world can we be free if we can't trust our justice system to render impartial verdicts??

I don't know if you noticed, but the jury is part of the justice system. Jury nullification is a justice-system tool to be used against the oppression you ostensibly fear. The jury is the last best hope against government imposition of unjust criminal laws.
posted by jock@law at 8:33 AM on January 25, 2010 [1 favorite]


The bigger issue though is that there is virtually no way in most cases to stop jury nullification. If a juror doesn't shoot off his mouth as to why he wants to acquit, he can keep saying "Not guilty. I'm not convinced by the evidence" until everyone gives up and goes home (or at least goes to retry the case if the prosecutor wants to roll the dice again at that point). A few judges may be willing to throw out blatant nullified verdicts, but if someone simply refuses to convict, and doesn't cite jury nullification as the cause, there's little anyone can do. Even in the most blatant instances of jury nullification, contempt charges are darn rare against jurors who are voting their conscience, for good reason, and as much as some judges would like to make it illegal, there just isn't much you can do to ban it. This is why instead we spend our time litigating the right to hand out Fully Informed Jury Flyers outside the courthouse.

"I don't know if you noticed, but the jury is part of the justice system. Jury nullification is a justice-system tool to be used against the oppression you ostensibly fear. The jury is the last best hope against government imposition of unjust criminal laws."

jock@law: To take the opposite side here, jury nullification can lead to the refusal to enforce just criminal laws (e.g. lynching) when your "last best hope" chooses to protect the majority and gang up on a minority. There are some ways around this to be sure, but it's fundamentally impossible to fully maintain the ability of juries to protect against government oppression while simultaneously preventing them from refusing to do justice against individuals who oppress minorities. Both are valuable goals, and both rights deserve protection, but there's a balancing act here, and the more we encourage juries to do the former, the more we permit the latter, and vice-versa. Anyone who views this as an open and shut issue either doesn't recognize this problem, or so values the protection of one of the above situations such that the other becomes irrelevant to them.
posted by zachlipton at 10:51 PM on January 25, 2010


Thing is, I suspect in most places where a lynching occurred in the first place the lynchers *already knew* that no jury would convict them, even if "jury nullification" wasn't already an established right.

Reverend John, given that most lynchings in the U.S. were of African-American men by Caucasian mobs, your suspicion is about 180-degrees off of the truth.

The lynch mobs were not attempting to ensure justice. They were trying to instill fear in the negro communities.
posted by IAmBroom at 1:26 AM on January 26, 2010


so values the protection of one of the above situations such that the other becomes irrelevant to them

History has shown that no matter how bad the tyrrany of the community is, the tyrrany of government is the bigger danger. That may seem coy in modern America, but the foundations of this country lay on the blood and bones of those who had good reason to remember it. THat principle continues to play out in our system today: the presumption of innocence, the high burden of proof, the right of the accused not to testify and further not to have his lack of testimony called into question against him. These enumerated rights all give voice to the underlying idea that the biggest threat to ordered liberty is the government's ability to imprison or kill us for violating codes of conduct it itself has created.

Anyway, my impression is that Jim Crow types of nullification happened without a widespread education about jury nullification, so I'm not sure that educating people about it is really the cause of that kind of harm. As IAmBroom pointed out, lynchings were done by the community - it would be hard to imagine that the mob cheering the actual killers on would then later convict them, whether or not jury nullification were an actual feature of Anglo-American law and whether or not the mob knew about its existence.
posted by jock@law at 5:36 AM on January 26, 2010


They were elected by their constituents for the express purpose of making laws.

Interesting position, this 'elected' by 'constituents'.

Yet less than 1/2 of the "constituents" bother to make a choice. And if you are a convicted felon in many places you still have to pay taxes and are unable to have ANY say in selection via election. (so much for no taxation without representation eh?)

And these 'laws' that you claim they are making - why is it a Mr. Conyers says:
"We don't read most of the bills."

What kind of laws are being made when the people making the laws can't be bothered to read the actual bills they are passing?
posted by rough ashlar at 6:44 AM on January 28, 2010


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