Jury Nullification
The Judge before this particular case spoke to potential jurors at length about the importance of rendering our verdict based SOLELY on the Law. It wouldn't matter if we agreed with the law or not... our own personal opinions on the law could have nothing to do with our decision. If we had a question about the law we could ask the court and the court would explain it. But it was CRUCIAL that we follow ONLY the Law.
This was being pounded into my head by a Black Woman. I couldn't believe my ears! You mean to tell me that, if somehow, this black woman was sitting on a Jury and asked to uphold certain Jim Crowe Laws, for instance, that she'd be "OK" with that? ...or, if there were some kind of criminal case over Women's Suffrage??? No way!
There has to be a way to kill an "Unjust Law" if the Jury feels it necessary.
Jury nullification is the process whereby a jury in a criminal case nullifies a law by acquitting a defendant regardless of the weight of evidence against him or her."[1] Widely, it is any rendering of a verdict by a trial jury which acquits a criminal defendant despite that defendant's violation of the letter of the law--that is, of an official rule, and especially a legislative enactment. Jury nullification need not disagree with the instructions by the judge--which concerns what the law (common or otherwise) is--but it may rule contrary to an instruction that the jury is required to apply the "law" to the defendant in light of the establishment of certain facts.
Strictly speaking, a jury verdict which rules contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of identical verdicts develops in response to repeated attempts to prosecute a statutory offense, it can have the practical effect of invalidating statute[citation needed]. Jury nullification is thus a means for the public to express opposition to an unwanted legislative enactment.
The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the evidence and the law, than officials who may be unduly influenced to follow established legal practice, especially when that practice has drifted from its constitutional origins. However, in most modern Western legal systems, juries are often instructed to serve only as "finders of facts", whose role it is to determine the verity of the evidence presented,[2] instructions that are criticized by advocates of jury nullification.
Historical examples of nullification include American revolutionaries who refused to convict under English law,[3] juries who refuse to convict due to perceived injustice of a law in general,[4] the perceived injustice of the way the law is applied in particular cases,[5] and cases where the juries have refused to convict due to their own prejudices such as the race of one of the parties in the case.[6]
Much more here: http://en.wikipedia.org/wiki/Jury_nullification
Wiki is careful to point out several pro's and con's to this...
So... This (BOLD PRINT) gave me pause. I'd never considered Jury Nullification in Reverse before! Perhaps some Legal Minds can chime in on this???Jury nullification is the source of much debate. Some maintain that it is an important safeguard of last resort against wrongful imprisonment and government tyranny.[7][8] Others view it as an abuse of the right to a jury trial that undermines the law.[9] Some view it as a violation of the oath sworn to by jurors. Others view the requirement that jurors take an oath to be unlawful, while still others view the oath's reference to "deliverance" to require nullification of unjust law: "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help [me] God." United States v. Green, 556 F.2d 71 ~.1 (D.C. Cir. 1977).[10][11] They point to the danger that a jury may choose to convict a defendant who has not broken the letter of the law. Jury nullification may also occur in civil suits, in which the distinction between acquittal and conviction is irrelevant.[12]Some fear that nullification could be used to permit violence against socially unpopular factions.
Is it conceivable that a Jury could convict somebody who has not actually broken a Law? Could they, in effect, create a "New Law" if they felt there needed to be one in this particular case?
Even still... I think Juries should be told about this option.
For consideration:
Any Lawyers in the house? Any non-lawyers wanna chime in?Nevertheless, there is little doubt as to the ability of a jury to nullify the law. Today, there are several issues raised by jury nullification.
- First, whether juries can or should be instructed or informed of their power to nullify.
- Second, whether a judge may remove jurors "for cause" when they refuse to apply the law as instructed.
- Third, whether a judge may punish a juror for exercising his power of jury nullification.
- Fourth, whether all legal arguments, except perhaps on motions in limine to exclude evidence, should be made in the hearing of the jury.
I'd love to hear your thoughts.
For the life of me, I can't figure out why 'blockquote' works when I'm posting in "Comments"
But doesn't work when I'm writing a blog entry.
Hopefully you guys can muddle through what I wrote above.
:)
October 24, 2009 12:50 PM | Reply | Permalink
You can blockquote text in your blog by highlighting the portion of your text you are quoting, and then clicking the "begin blockquote" icon in the toolbar on your 'blog now' page. That icon looks like a paragraph with a small blue arrow pointing to the right. Alternatively you can edit your post by clicking "none" from the drop down menu under 'Format', typing the html code for blockquoting along with your quote, and then switch back to "rich text" from the same drop down menu.
October 24, 2009 1:36 PM | Reply | Permalink
It works differently in blog posts. The little icons above where you post do the formatting once you have highlighted the section you want. You might be able to go back and fix it; I don't know the nomenclature, but we used to have those same icons in the comment section, and I liked them because they were so much easier.
I am not a lawyer and I have never been on a jury, but a friend who was on a malpractice case told me this:
She was the most educated, of the jurors. The case involved a very pitiful person who had suffered a complication of surgery. He was in very bad shape before the surgery, and was in worse shape now. The complication was listed and explained in the "informed consent" form that was signed prior to surgery. The surgeon was getting ready to retire.
She told me that her fellow jurors felt very sorry for the plaintiff and identified with his mother, who was his chief care-giver. They knew that the surgeon's insurance would pay the settlement.
Based on the facts of the case, the doctor was not negligent, and the complication was a known possibility that unfortunately happened. She was the only hold-out, and tried to explain her opinion on the law and what their responsibilities were.
In the end, she caved. She still regrets it, but she caved.
This was surely jury nullification. My thought is that if juries are told that it is okay to do this, there is no reason to have laws in the first place. Yes laws may sometimes be wrong, and there are ways to deal with that, but putting that in the hands of people who just have an opinion about it is dangerous.
Sometimes the people with the strongest opinions about things are the ones who have thought about the issue the least. I would not want to be tried by a jury (at all, but definitely not one that) felt free to ignore points of law that rubbed them the wrong way.
My 2 cents
October 24, 2009 1:47 PM | Reply | Permalink
Interesting subject Icky. I would have a hard time adhering to 'the letter of the law' were I a juror in a case which carries a capital sentence. At the same time, I suspect some, especially minorities, may suffer wrongful convictions at the hands of prejudiced juries.
October 24, 2009 1:41 PM | Reply | Permalink
I would too, but I think they ask you if you could find the defendant guilty if you knew it might result in the death penalty.
October 24, 2009 1:51 PM | Reply | Permalink
Even if it weren't a capital offense...
What if it were about Race? Once upon a time that would have been possible...
What if it involves Insurance Companies???
What if I think laws protecting Insurance Companies are invalid?
October 24, 2009 2:06 PM | Reply | Permalink
OMG! I guess we all have our points of weakness. I would have a hard time finding for an insurance company, but I can honestly say that I would truly try to be objective.
What do you think of the idea of Professional Juries?
October 24, 2009 2:19 PM | Reply | Permalink
Professional jurors would have to run for election, I presume. Their candidacies would be funded by insurance companies and banks. Well, you can guess the rest.
Or, maybe we could let our government officials appoint them. Lets see, the friends of the insurance companies and banks would get appointed.
October 24, 2009 7:16 PM | Reply | Permalink
How about if they were trained, like mediators are, and hired based on their experience and education like most of us are in other fields?
I agree that running for the office would be a fatal flaw in the system, but how about people who were trained in the basics of the law, and then chosen randomly for a particular case to decide a case based purely on the law? That seems to me a better system than we have now, with complicated legal issues decided by people who have no experience and have the incentive of finishing their work so they can get back to their lives.
October 24, 2009 8:07 PM | Reply | Permalink
I remember reading that the verdict in the O.J.Simpson trial (for killing his wife and the other guy) was an instance of jury nullification. Something to do with more black on white guilty verdicts than white on black at the time, so the jury helped to even the score.
October 24, 2009 2:59 PM | Reply | Permalink
Yup, anyone who followed the cable TV news stations during and after the OJ Simpson trial got the at least the equivalent of a "Jury Nullification 101" course and a whole army of talking head law professors fulfilling their dreams of 15 minutes of fame.
Those were the good old days when the country wasn't distracted by silly polticial stuff like it is today, but was focused on serious *important* stuff (not) like the OJ Simpson trial (and Marsha Clarke's new hairdo.) If Al Qaeda had had it's stuff together back then, they coulda hit us easy when the verdict came in, as the whole country was in front of the teevee, it was pretty crazy. :-)
October 24, 2009 5:50 PM | Reply | Permalink
If Al Qaeda had had it's stuff together back then, they coulda hit us easy when the verdict came in, as the whole country was in front of the teevee, it was pretty crazy. :-)
It wasn't exactly Al Qaeda, but it was Hurricane Opal making a fast beeline as a Category 3 for the Florida Panhandle. Emergency officials had to make an extra effort to warn the people in harm's way, because they were so engrossed in the verdict that they weren't paying any attention to the weather. Yes, pretty crazy!
October 24, 2009 6:45 PM | Reply | Permalink
My opinion: OJ killed his wife. About 150% certain of that.
However, certain members of the LA police department thought it would be a good idea to supplement the evidence.
For instance, how can we really believe OJ's bloody socks were found on the floor in the middle of his bedroom several hours after inspectors searched that area? When OJ put the rest of his bloody clothes in that plastic bag and dumped them in the mall dumpster, how did he forget his socks? Why was the blood on the socks smeared instead of splashed? Why was the blood on the inside of the socks? Are we to believe OJ, a fasidious dresser, put his socks on inside out that morning?
We all heard "if the glove don't fit, you must aquit." OJ's attorneys figured out that someone on the LA police department wanted to insure the conviction (insurance is such a dirty word, isn't it?) and they made a winning pivot.
So, the black jury aquited him. That is pretty easy to understand.
October 24, 2009 7:27 PM | Reply | Permalink
Sorry, Faroff. I'm one of maybe 5 people in the US that didn't watch the trial or pay close attention to it. (The other 4 people were under a year old at the time, I heard. :-))
I just remember the jury nullification part because it made some sense to me.
October 24, 2009 8:05 PM | Reply | Permalink
I'm completely in agreement with you here, Faroff. Much as I felt OJ was guilty, the obvious planting of evidence was downright wrong, and had OJ been sentenced because of it, that would have set a precedent I don't like to consider.
So many people have argued with me over this, saying OJ got off simply because he was rich or people feared riots in LA or, I dunno, all sorts of silly reasons -- but that's simply not the case. The evidence was tainted and that was good enough for me -- I agreed with the jury's decision then, and I still agree with it today.
October 24, 2009 8:19 PM | Reply | Permalink
OK, now I get what you two are trying to get thru my dense head. The nullification was over the tainted evidence, not the history of unequal justice.
Either way, I think the jury did the right thing, which is how I happened to remember the concept.
October 24, 2009 8:32 PM | Reply | Permalink
It seems to me that whether juries have the capacity to engage in nullification is distinct from whether they have the legal right. I'll defer to legal experts, but I suspect they don't have the latter right.
There may be some rare jusifications for jury nullification, but in general, I see it as a dangerous principle, far more likely to wreak injustice rather than justice. I don't think capital cases are often relevant, because individuals who state they are opposed to the death penalty are usually excluded from such cases.
Jury nullification typically seems to operate when jurors happen not to like a particular law, or perhaps are trying to make a political statement. However, laws are presumably made by our elected representatives, who speak for more than 12 of us, and so the principle of nullifying the laws is always a repudiation of that basic democratic principle, and breeds contempt and disrespect for the principle of the rule of law. That is not a result to be welcomed casually.
On the other hand, laws are sometimes unjust, and deserve to be changed. I suppose that a jury nullification case might be a catalyst to accomplish that, but I believe a far more effective, and far more democratic option is civil disobedience, in which an individual accepts the penalty for an unjust law in order to emphasize the strength of his or her convictions. That is likely to resonate more with the public than the actions of a jury that simply wants to side with someone on trial.
October 24, 2009 7:18 PM | Reply | Permalink
But unless I am misunderstanding this blog entirely, the question is this:
Is Jury Nullification OK? To the point of instructing jurors about it.
October 24, 2009 7:19 PM | Reply | Permalink
C'ville - I have no idea if it's OK, but my thought is it's somewhat like the idea of civil disobedience, the concept of which is spelled out in the Declaration of Independence.* Meaning, if practiced on a regular basis, it will defeat its own purpose, but done when it exists as the sole remedy for obtaining justice, then it has a place.
...That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government ...
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes ...
October 24, 2009 8:21 PM | Reply | Permalink
But your implication here is that the jury has thought about this issue for some time, looked at the history and investigated the issue carefully, and come to a conclusion based on thoughtful and deliberative effort. Most juries are chosen and then sit in a short amount of time. Most of us are capable of forming an opinion based on emotions or notions (I certainly am).
I said above that many people with the strongest opinions have given the least amount of thought to them, and I do believe that. If you say that everyone has the right to use their judgement to nullify law, you open up a system of anarchy. I agree with you wholeheartedly that there are law that are wrong and that we should protest. The time to do it is not when we are asked to make a decision based on law.
There are a lot of people who would like to overturn laws, and who distrust the government in general. They may nullify a jury without getting the OK. Giving them permission to decide a case based on their own personal feelings does not serve the cause of justice and is a truly slippery slope.
October 24, 2009 8:59 PM | Reply | Permalink
To Kill A Mockingbird
October 24, 2009 9:42 PM | Reply | Permalink
There are many novels and movies that demonstrate injustice. Is your point that they all just might be? Should all juries be entrusted with the burden of deciding that a law is wrong? Which law? What if the jury just thought about it for the first time when they were listening to the case, and they just formed an opinion based on the limited information given at the trial?
Is any opinion valid and more important than a law which was enacted according to our Constitution?
October 24, 2009 9:58 PM | Reply | Permalink
To Kill A Mockingbird is a fictional but realistic description of injustice inflicted as a result of jury nullification - it shows the evil of that practice. It's a powerful indictment of jury nullification as it was practiced in the pre-Civil Rights South. There are even more examples of jury nullication of the reverse sort, in which a white jury acquitted a white man when the evidence clearly demonstrated he participated in a lynching or other crime against a black.
My point, which I thought you sort of agreed with, is that jury nullification is at best, on very rare occasions, the lesser of two evils, and much more often is just evil.
October 24, 2009 10:24 PM | Reply | Permalink
I'm sorry. I missed your point. The trial in To Kill a Mockingbird was an example of reverse nullification. My point remains that juries should always decide based on the evidence and the law. If there is a bigger issue, the jury member should address it with the judge rather than to make his judgement reflect his/her personal prejudice.
October 24, 2009 10:35 PM | Reply | Permalink
I recommended this but withheld my comments for a bit.
I tried maybe 25 jury trials. Usually personal injury but half were probably misdemeanors. The middle class cannot of course afford to pay an attorney for a misdemeanor trial. hahaha. But I was mad and ended up doing it for very little.
The jury is to decide the facts. Not the law.
What the oligarchy caught onto right away when the peasants revolted and they ended up with juries of their peers was that peasants too often sided with their peasant defendants...and later with their peasant plaintiffs.
So, over the centuries, juries were given longer and longer and longer instructions read from the bench that NOBODY, and I mean nobody, understands.
I mean a fascist like Yoo would never agree as to the meaning of a set of instructions in a DUI case as interpreted by a sane attorney or judge.
NEVER.
And nobody could possibly understand thirty pages of written instructions in a complicated pollution case. Besides understanding that testimony running six months or more could never be understood by anyone.
A lot of good movies demonstrating this. The Hackman/Hoffman flick starring Cusak is a good example of demonstrating how juries decided things in a civil context. Law and Order really does a good job at times on this issue for criminal trials.
Hell Twelve Angry Men with Fonda is a good case in point from sixty years ago.
If a potential juror, any potential juror were completely honest during Voire Dire nobody could ever be seated. hahahahahahaha
Jury trials are poker games. AND THE DEFENDANT IN A CRIMINAL CASE IS 'ALL IN.' HA
October 25, 2009 1:58 AM | Reply | Permalink
Oh I forgot two other important variables here.
In complicated civil cases, the jury is given a special verdict form that might be twenty or more pages long. Looks like an SAT test. ha. The oligarchy wanted to set it up so that verdicts could be nullified more easily on high.
Cheney and others with tens of millions of dollars--hundreds of millions of dollars--get outside corporations to foot the bill and the defense attorneys spend thousands of hours delaying the proceedings with discovery motions and summary judgement motions and exclusionary motions and motions to compel testimony.......
That is why the rich walk around for three years. hahahaha
So, of course RICO was set up. Drug dealers could not pay attorneys with their illegal monies. That is why I think it important to make sure, that by law the wall street crooks cannot used ill gotten gains to pay their attorneys.
THE END
October 25, 2009 2:05 AM | Reply | Permalink
The jury is to decide the facts. Not the law.
I understand... But can you imagine sitting on a jury during Jim Crowe days? Or in the days before women had the right to vote? I couldn't, in good conscience, find for a law I thought was unjust.
Just being honest.
AND! I don't think that's a bad thing. I think it should be required of us all, given the opportunity, to correct these things.
(But as you point out, most jury members aren't up to snuff for this kind of thing).
___________________
If a potential juror, any potential juror were completely honest during Voire Dire nobody could ever be seated. hahahahahahaha
No kidding! I was honest... I was asked to approach the bench and explain myself. I did. And I was dismissed. (This case was involving a patient suing a Nurse. I fill Rx's from that dr's office all the time... I'm likely to know the nurse and the patient... and I would likely have made up my mind before the trial started.)
That's as close as I got to being on a jury.
October 25, 2009 12:16 PM | Reply | Permalink
Jury nullification is wrong and would be illegal if there was any way to prove that it took place. If a law is unjust it should be repealed through a political process where the entire electorate responsible for the law is represented, not by a random twelve people selected to sit on a particular jury.
It is the view that one's opinion counts more than the law that allowed the Bush Administration to ignore any law which was in the way of the higher calling they believed could motivate their actions.
Both are grievously wrong. As a juror or as a president, one is bound to follow the law as it has been established by the process we have in place.
October 25, 2009 9:29 AM | Reply | Permalink
Jury nullification is a pleasant idea. But it's pretty theoretical. When has it ever happened? Is there a single documented instance? Most defense lawyers are warned by judges that they cannot mention jury nullification to the jurors. If they don't kniw they can do it, it's not really germane to the real world.
Often, in mandatory sentencing cases, jurors aren't even told the mandatory penalty that is automatic in case of conviction. Even if they knew about jury nullification (which judges don't allow them to learn from the defense), they don't even know why they should apply it.
When the USFL (or was it the WFL?) sued the NFL for damages for antitrust violations, the jury found in favor of the WFL on all three counts and awarded damages of $3 dollars. They assumed that the judge could set an appropriate damages award. They were wrong of course. The judge can only LOWER the award a jury makes.
The average juror knows very little, and is told even less. The justice system doesn't trust jurors.
October 25, 2009 9:58 AM | Reply | Permalink
This from a retired Federal Prosecutor:
It's also been pointed out that if any Juror were to start telling other jurors about "Jury Nullification" then almost certainly one of the other jurors would drop a note to the judge and the 'troublemaker' would be taken off the jury. Perhaps even be found in Contempt of Court...
The Key to the whole thing is "silence". If you are an informed juror... if you know about Jury Nullification... Do NOT go yammerin' on about it in the jury room. Just keep to yourself. Make a "Not Guilty" verdict. Don't explain yourself. Done.
Now... I don't bring this topic up to be a trouble maker. Should I ever be put on a jury I'd do my level best. No doubt. And I suspect all of you would do the same. But, to be honest... if I was involved in a case where I felt the law was simply unjust, you better believe I'd make it known.
As the Wiki entry points out... If there are a series of such verdicts in similar cases, it's a sign that something is wrong with that particular law and it needs to be reviewed. When We The People don't have the money and influence required to lobby DC, then we can make ourselves heard in such verdicts.
Specifically I'm thinking about Insurance Companies, Laws Prohibiting Equal Protection for Homosexuals, and certain other laws that have been bought and paid for by Corporations (and don't necessarily have the common good in mind).
Now... Having said all of this... I suppose it's possible for a few mouth breathing, far right, hate-filled, narrow minded, dishonest types to exercise their same right, non? And this could get ugly. As was pointed out already, Juries are often not the brightest, most enlightened and educated group. If Jury Nullification got into those hands... then... it's conceivable that they'd find all sorts of laws protecting Civil Liberties and Protecting the Environment (for example) to be totally wrong... and they could screw things up in other ways... So... Double edged sword.
October 25, 2009 12:09 PM | Reply | Permalink
I think the law is a joke. Every time I am called I tell the judge just what I think and every time he invites me to leave his courtroom. Once a judge didn't like my attitude and he said so. I responded, nicely, that I am entitled to my opinion. He didn't like it but he excused me. I thought about it afterward and decided if that ever happens again I am going to ask the judge why am I required to speak truthfully when if I do I know it might not be to his liking. If that is what they want they can get patients from hospital mental wards with split personalities to serve on juries. They'll fit right in.
One of these days if they get around to making laws that respect the views of citizens maybe I'll see things differently. They better damn well hurry up though. I ain't getting any younger.
October 25, 2009 1:25 PM | Reply | Permalink
Well, I don't think the law is a joke and instead, believe it defines who we are as civilized people or not. I absolutely do not believe that the law is what a particular juror or 12 of them want it to be.
I do not agree with the idea that jury nullification does not take place, or will be detected when it takes place. I am certain that I have seen it take place, but, given our system of laws, what I think I have seen does not constitute sufficient evidence to have any juror held in contempt.
That people on a progressive web site---many who I respect for other things they have written---see it as "pleasant" or that one's unhappiness with something the police did justifies an acquittal of a murderer is truly disturbing.
When has jury nullification occurred? Well, the example of To Kill a Mockingbird is a good one in the sense that many white men were acquitted of murders or rape they committed with impunity full in the knowledge of what their community would think of what they did, despite the law.
In my state, most criminal juries have been instructed since the late 1980s that if they find the evidence proves defendant's guilt beyond a reasonable doubt, they must vote to convict. I hope that is what they do because if that is not what they do we have taken yet another step backward.
October 25, 2009 6:39 PM | Reply | Permalink