Jury Nullification

[jcarmody]

In the spirit of the recent popular political threads, I'd like to offer my opinion of something that we can do to effect our system of government. I live in the US; I know that not all of us on LAVA do, so please bear with me (and, don't get me started about voting ). I was prompted to post this after reading a news article of a woman that was arrested for videoing <4 minutes of a birthday party, in a movie theater, and getting some of the movie in the shot.  If her case goes to trial it will likely be before a jury of her peers, and that's the theme for this post.

An article I'd like you to read begins with: 

Is it true or false that when you sit on a jury, you may vote on the verdict according to your own conscience? "True," you say, but then why do most judges tell you that you may consider "only the facts" and that you are not to let your conscience, opinion of the law, or the motives of the defendant affect your decision?

and:

In fact, if you have doubts about the fairness of a law, you have the right and obligation to find someone innocent even though they have actually broken the law!

My favorite quote in the article is:

Despite the courts' refusal to inform jurors of their historical veto power, jury nullification in liquor law trials was a major contributing factor in ending alcohol prohibition. (Today in Kentucky jurors often refuse to convict under the marijuana prohibition laws.)

In order to offer a relevant example I'll explain a certain law that many of us have broken - "honest services fraud".  You can Google it or look here.  Anyway, here's a quote from the link:

Have you ever taken a longer lunch break than what you are supposed to do? Have you ever made a personal phone call at work or done personal business on your employer’s computer? Have you ever had a contract dispute with an employer or a client? All of those things can be criminalized by an enterprising federal prosecutor.

Now, imagine you're seated on a jury for a trial where the defendant is accused of something as ridiculous as these examples.  You will (probably) be instructed by the judge that you must convict if you believe the defendant to be guilty of the charges.  I'd vote to acquit, regardless, and think everybody should but doubt that they would because they don't know their right/obligation. The first article is worth reading. The problem with this attempt at improving the citizenry is that a person would be be rejected as a juror (and perhaps held in contempt) for expressing this belief. I don't have much confidence in our system of justice, but I don't have to be part of the problem. Remember: if you're not part of the solution, you're part of the precipitate.

[Cat]

Wow. This is pretty powerful stuff. And certainly not what I learned in Civics class in highschool.

So what happens if I make it onto a jury and then tell everyone they have a right to vote their conscience? Does the entire jury get nullified? Do I get dragged off to jail?

[Mark Smith]

I've avoided these kinds of threads until now, but I'll ignore my better judgment and offer an opinion here.

There's a word for a court system that allows (and maybe even encourages) "jury nullification" - it's called anarchy. Our legal system (I'm here in the US) would completely fall apart if every jury were encouraged to "vote their conscience" when deciding guilt or innocence to a specific charge or set of charges. If a jury can effectively re-write the law whenever they see fit, then none of us can possibly know which laws we should follow, which we should ignore, and which we should expect our neighbors to follow (is it now OK for our neighbor to come "borrow" our car without permission because he might find a jury that sincerely believes all property is communal?). Our system of laws provides each of us a frame of reference in which we make choices based on expected outcomes. If this frame of reference is constantly shifting, we have no idea what to expect and cannot make intelligent predictions about the consequences of our decisions.

One could extend this argument to all sorts of bizarre and admittedly unlikely scenarios but the argument is this: if a jury of 12 (or in many cases, even less) can simply ignore any law they don't like when deciding guilt or innocence there's no point in writing laws in the first place.

And for the specific case given - we all read news stories about arrests and indictments that don't seem to make any sense. Often, these are a case of practicing "defensive" law enforcement like doctors have to practice "defensive" medicine. If the officer doesn't make the arrest or the prosecutor doesn't make the indictment and something terrible happens later then they will be second guessed and maybe even subject to criminal prosecution themselves. For instance, maybe this person was just taping a birthday party - or maybe they have a side business of posting and selling new release movies. That's why we have a court system - to sort these things out.

Mark

[BobHamburger]

I'd wager that none of us on this board have ever had any formal legal training. While we're certainly all entitled to our opinions, better-informed and more experienced minds have gone through these concepts at length. Mark, however much you might philosophically object to the concept of jury nullification, there is a long history behind the concept, predating the birth of the US and the creation of our constitution. I'll cite just two examples for consideration:

District of Columbia Circuit Court of Appeals, in Unites States v. Dougherty, 1972, saying:

"[The jury has an] unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law."

In his writing on the subject, retired professor Kelley L. Ross commented:

"If [judges and juries] were to... hold themselves powerless to disobey unjust and morally despicable laws, they should be told that "obeying orders" was not accepted as a defense in the Nazi war crime trials at Nuremberg."

Edited December 7, 2009 by BobHamburger

[Daklu]

Thanks for the information Jim and Bob. (JimBob? ) This is something I did not know and represents another way to protect citizens from overbearing governments. It bothers me that the legal establishment tries to hide this from jurors.

So what happens if I make it onto a jury and then tell everyone they have a right to vote their conscience? Does the entire jury get nullified?

I believe the "nullification" part of the term refers to nullifying the (unfair) law the person has violated, not nullifying the jury. I can see why a prosecutor would try to exclude a potential juror who is aware of jury nullification, but I'd be surprised if the prosecutor would ask the question during jury selection. Why bring up an issue that most people don't know about? They might start asking questions...

I don't see how someone could be held in contempt by acquiting in those cases though.

[Mark Smith]

In his writing on the subject, retired professor Kelley L. Ross commented:

"If [judges and juries] were to... hold themselves powerless to disobey unjust and morally despicable laws, they should be told that "obeying orders" was not accepted as a defense in the Nazi war crime trials at Nuremberg."

I think this is the crux of the matter - if a law is clearly unfair and "unjust and morally despicable" then we do have a responsibility to do the right thing and juries can and have nullified those laws. But instructing juries to consider "jury nullification" in a case such as the one mentioned in the original post to this thread, where there is no indication that the law is "unjust and morally despicable", seems ill advised.

Mark

[asbo]

But instructing juries to consider "jury nullification" in a case such as the one mentioned in the original post to this thread, where there is no indication that the law is "unjust and morally despicable", seems ill advised.

So, basically, we can't trust the average juror to use their conscience properly?

[Mark Smith]

So, basically, we can't trust the average juror to use their conscience properly?

I hope that's not what I said, because that not what I meant. I mean to say that including instructions - in the typical case - to "judge the case on the facts presented in the courtroom, and oh, by the way none of that matters if you disagree with the law that the defendant is accused of" won't help the case come to any kind of conclusion. It's just a recipe for a mistrial and more taxpayer dollars spent on retrial. This isn't an argument for more laws and government - it's just an argument for having a consistent legal system so everyone knows what to expect.

Mark

[asbo]

I hope that's not what I said, because that not what I meant. I mean to say that including instructions - in the typical case - to "judge the case on the facts presented in the courtroom, and oh, by the way none of that matters if you disagree with the law that the defendant is accused of" won't help the case come to any kind of conclusion. It's just a recipe for a mistrial and more taxpayer dollars spent on retrial. This isn't an argument for more laws and government - it's just an argument for having a consistent legal system so everyone knows what to expect.

Nah, I was just prodding for fun. I do recognize the situation you're describing. Invariably, there is going to a be a juror with a different perspective, moral or otherwise, that could hang a jury with the power of nullifcation. It's a sticky situation and it's hard to fairly balance the value of the perspectives of those involved. IMO, though, I think you'd only really run across this situation when there would be value in more closely examining the common conscience regarding the situation.

... I hope the reads as clearly as I thought it.

[jcarmody]

Wow.  This is pretty powerful stuff.  And certainly not what I learned in Civics class in highschool.

I don't want to start another emotionally charged topic, but I'll suggest that that's part of the purpose of public education. 

[...] Do I get dragged off to jail?

It has happened before...

From the original post

William Penn's trial – of the courageous London jury which refused to find him guilty of preaching Quaker religious doctrine (at that time an illegal religion). His jurors stood by their verdict even though held without food, water, or toilet facilities for four days. The jurors were fined and imprisoned for refusing to convict William Penn – until England's highest court acknowledged their right to reject both law and fact and to find a verdict according to conscience. It was exercise of that right in Penn's trial which eventually led to recognition of free speech, freedom of religion, and of peaceable assembly as individual rights.

So, basically, we can't trust the average juror to use their conscience properly?

I'll bite!  I don't trust them.

[BobHamburger]

I'll bite! I don't trust them.

I have a problem with the concept of a jury of my "peers." Who, exactly, are my peers? My neighbors? Coworkers? College classmates? Correspondents on LAVA? Do any countries use permanent, professional jurors? I wonder how that would work out here.

[jcarmody]

I have a problem with the concept of a jury of my "peers." Who, exactly, are my peers? My neighbors? Coworkers? College classmates? Correspondents on LAVA? Do any countries use permanent, professional jurors? I wonder how that would work out here.

I remember some comedian had a bit about a person accused of hitting people on the head with a hammer.  The joke was in asking if we really want twelve of his peers in the same room . 

[Dan DeFriese]

Do any countries use permanent, professional jurors? I wonder how that would work out here.

I don't think that would work out well anywhere... People gettin paid (more that gas money) to sit on a jury. How could someone be impartial if their own livelihood may be on the line.

I think closest thing would be the concept of the Grand Jury. They are generally seated for 12-36 months and are used to determine if there sufficiant evidence in a given case to proceed with a trial, but doesn't hear the trial itself.

[jcarmody]

 I just received a summons to report for Jury Duty next month.  

[Cat]

I just received a summons to report for Jury Duty next month.

Let us know how that goes. Assuming prisoners have internet access in NC.

[jcarmody]

Yippie!!!  From the Washington Post.

(tl.dr. - jury acquitted drug dealer when police testimony appeared fabricated)

I later spoke with one of the jurors, who told me they had been split, 10 for acquittal and two for a guilty verdict. Many of them had simply mistrusted the eyes. They didn't believe he could have possibly seen the ginger ale bottle or the v-neck or the key, and they felt his apparent willingness to lie had tainted the prosecution's whole case.

Let us know how that goes.  Assuming prisoners have internet access in NC.

How do you think it would go after the following, hypothetical conversation?

Judge: I hold you in contempt of court!

Me: Ya think?