Things You Should Know

[The Reaper]

Jury Nullification.

I think the Founding Fathers meant for us to use it.

Any informed feedback, perhaps from our lawyers?

TR

[Roguish Lawyer]

I'm home with the kids for a bit. I'll try to post something meaningful later.

[colt1911fan]

Well from their writings and actions it is clear that decent people(otherwise law abiding in most respects) may find it necessary to disobey the law to obey a higher calling. Now this does not directly address the jury nullification, nor is it particularly informed, but I do think it indicates how they would act in a jury if they disagreed with the law.

I know how I would act on a jury if I felt the law was wrong. A man's got to follow his principles. Law is important to follow, but to me it is more important to do right.

[Roguish Lawyer]

I have spent a little bit of time poking around, but haven't found anything comprehensive and worthwhile yet. Although I know what JN is, I've never really thought about it in any depth, so I need to educate myself a bit before posting.

Bear with me. I'll get something worthwhile posted eventually.

AL, feel free to beat me to it.

[Air.177]

Originally posted by Roguish Lawyer
Bear with me. I'll get something worthwhile posted eventually.

Here we go again

For some reason this reminds me of another project that got started a little while ago.........

[The Reaper]

Let me provide something in the absence of competent legal counsel.

BTW, I believe that mentioning Jury Nullification will get you tossed off a jury or arrested for Jury Tampering or Contempt quicker than anything else you can do.

Nevertheless, I believe that it is our birthright as Americans.

TR

"Jury Nullification

by Doug Linder (2001)

What is jury nullification? Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.

When has jury nullification been practiced? The most famous nullification case is the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels, the only issue the court said the jury was open to decide as the truth or falsity of the statements was ruled to be irrelevant, the jury returned with a verdict of "Not Guilty."
Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.

More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.

Do juries have the right to nullify? Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge.

Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.

If jurors have the power to nullify, shouldn't they be told so? That's a good question. As it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across. Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given. Many commentators have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify.

Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. They suggest that informing of the power to nullify will increase the number of hung juries. Some judges also have pointed out that jury nullification has had both positive and negative applications--the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt. Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders--that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.

On the other hand, jury nullification provides an important mechanism for feedback. Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions. Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely."

[longrange1947]

Yes, when i qualify it with I do not believe in it as a vehicle to get someone off due to race, creed, religion, or any of that nonsense. Yes, when the law is BS. Example, this so called election reform law. I would vote not guilty if I was on a jury dealing with the fact someone mentioned a candidate during the so called black out period. Why can he not mention a candidate if I am a group of like minded individuals and want to bring light the other candidates short falls?

I feel that the law is unconstututional and thus a bad law, and thus no law at all.

My feelings on the subject. Let the incoming come in.

[NousDefionsDoc]

I believe in judge nullification

[Roguish Lawyer]

This one isn't bad:

http://www.mises.org/journals/jls/15_2/15_2_3.pdf

[Roguish Lawyer]

Let's do some hypotheticals to test whether jury nullification should be permitted.

Hypo #1 -- Female victim is gang raped by three accused. She hunts them down and brutally murders them weeks later. Does she have a legal defense? If not, should we allow the jury to acquit her?

Hypo #2 -- Black man murders wealthy white man who entered poor black neighborhood. Assume there is no defense to the murder, and it was motivated by racial hatred and economic anger. All-black jury wants to acquit because they think the victim deserved it. Do we allow nullification?

Hypo #3 -- Black man accused of raping white woman. There is substantial evidence that the woman was promiscuous and that the sex was consensual. All white jury wants to convict anyway. Do we allow nullification under these circumstances?

Ultimately, I think the question is to what extent do you want to constrain the discretion of juries. This is a complicated topic and not one on which I have any developed views. Perhaps due to my incompetence.

[The Reaper]

Originally posted by Roguish Lawyer
This one isn't bad:

http://www.mises.org/journals/jls/15_2/15_2_3.pdf

I like Spooner.

"It is this power of vetoing all partial and oppressive legislation,
and of restricting the government to the maintenance
of such laws as the whole, or substantially the
whole, people are agreed in, that makes the trial by jury
“the palladium of liberty.� Without this power it would
never have deserved that name. The will, or the pretended
will, of the majority, is the last lurking place of tyranny
of the present day. The dogma, that certain individuals
and families have a divine appointment to govern the
rest of mankind, is fast giving place to the one that the
larger number have a right to govern the smaller; a dogma
which may, or may not, be less oppressive in its practical
operation, but which certainly is no less false or tyrannical
in principle, than the one it is so rapidly supplanting.
Obviously there is nothing in the nature of majorities,
that insures justice at their hands. . . . The relative
numbers of the opposing parties have nothing to do with
the question of right. And no more tyrannical principle
was ever avowed, than that the will of the majority ought
to have the force of law, without regard to its ju stice; or,
what is the same thing, that the will of the majority ought
always to be presumed to be in accordance with justice.
Such a doctrine is only another form of the doctrine that
might makes right."

In your examples, there appears to be no conflict as to the facts of the case. I find them to be poor examples, as they also have no argument with the law itself, but appear to be merely cases in which the jury is allowing (or is to allow) personal sentiment to interfere fair judgement of the law and the facts. More like vigilantism.

How about examples instead, where a law is felt to be unjust or unfairly imposed.

Examples would be taxation, firearms laws, drug laws, etc. Or perhaps, in the past, slavery, which the majority of Americans AND THE LAW, at one point, supported.

TR

[Roguish Lawyer]

Originally posted by The Reaper
I find them to be poor examples, as they also have no argument with the law itself, but appear to be merely cases in which the jury is allowing (or is to allow) personal sentiment to interfere fair judgement of the law and the facts. More like vigilantism.

How about examples instead, where a law is felt to be unjust or unfairly imposed.

Examples would be taxation, firearms laws, drug laws, etc. Or perhaps, in the past, slavery, which the majority of Americans AND THE LAW, at one point, supported.

TR

I think the examples actually are quite good, but here are some more since you asked for them:

Hypo #4 -- Cancer patient prosecuted for possession of marijuana. He says it relieves his suffering. Jury wants to acquit of drug charges.

Hypo #5 -- San Francisco resident refuses to pay taxes because he is "opposed to a society that funds the barbarians in the military while ignoring the most serious issue in this world -- the spread of HIV." Jury wants to acquit of tax evasion, as they agree with him.

Hypo #6 -- Man accused of murder. Carried pistol legally with CCW permit. Used it in self-defense, and that defense is clearly established. Jury does not agree with right to carry weapons, and wants to convict of manslaughter to send a message to people who carry weapons.

[The Reaper]

Originally posted by Roguish Lawyer
I think the examples actually are quite good, but here are some more since you asked for them:

Hypo #4 -- Cancer patient prosecuted for possession of marijuana. He says it relieves his suffering. Jury wants to acquit of drug charges.

Hypo #5 -- San Francisco resident refuses to pay taxes because he is "opposed to a society that funds the barbarians in the military while ignoring the most serious issue in this world -- the spread of HIV." Jury wants to acquit of tax evasion, as they agree with him.

Hypo #6 -- Man accused of murder. Carried pistol legally with CCW permit. Used it in self-defense, and that defense is clearly established. Jury does not agree with right to carry weapons, and wants to convict of manslaughter to send a message to people who carry weapons.

I disagree with your examples 1-3 of Jury Nullification, and think it goes more toward jury prejudice or sympathy.

#4 - Yes, good example.

#5 - No, not jury nullification, as he is not disagreeing with the law, but is disagreeing with the administrative distribution of resources. Better example would be refusal to convict a moonshiner of failing to pay FET on alcohol, as they disagree with the Tax Law itself.

#6 - I thought a DA or prosecutor brought charges, not the jury? A jury can ADD to the case? Must have slept through that episode of LA Law. Okay, let's say that a jury received a case of that nature where the overzealous prosecutor brought murder charges. Since the Second Amendment to the Bill of Rights of the U.S. Constitution and all of the intermediate laws would appear to affirm the positive right to defend himself, and the defendant would not be guilty as a fact in the case, I do not see how that example would be a case of jury nullification. How about a case where the overzealous prosecutor brought murder charges, and the jury refused to convict based on their DISAGREEMENT with the law as it pertained to the defendant and the facts of the case?

#7 - A runaway slave is brought before the court for extradition under the Runaway Slave Act. He is known by the law to be the property of Mr. Smith. He appeals his return to the Smith Plantation before a jury. You are on the jury. Do you vote to send him back to his owner, in accordance with the law?

Here is another question for you.

Why is it that citizens on juries would be denied the right to determine the legitimacy of the law, while judges do it all of the time?

Look at Second, Ninth and Tenth Amendments for prime examples of judges using their personal prejudices to render decisions in defiance of the law. The Ninth Circuit Court of Appeals should provide ample evidence of this, as well as recent efforts by political parties to deny appointments to judges who would follow certain laws.

I want to be judged by 12 of my peers, on the facts, AND the law.

TR

[Roguish Lawyer]

Originally posted by The Reaper
I disagree with your examples 1-3 of Jury Nullification, and think it goes more toward jury prejudice or sympathy.

#4 - Yes, good example.

#5 - No, not jury nullification, as he is not disagreeing with the law, but is disagreeing with the administrative distribution of resources. Better example would be refusal to convict a moonshiner of failing to pay FET on alcohol, as they disagree with the Tax Law itself.

#6 - I thought a DA or prosecutor brought charges, not the jury? A jury can ADD to the case? Must have slept through that episode of LA Law. Okay, let's say that a jury received a case of that nature where the overzealous prosecutor brought murder charges. Since the Second Amendment to the Bill of Rights of the U.S. Constitution and all of the intermediate laws would appear to affirm the positive right to defend himself, and the defendant would not be guilty as a fact in the case, I do not see how that example would be a case of jury nullification. How about a case where the overzealous prosecutor brought murder charges, and the jury refused to convict based on their DISAGREEMENT with the law as it pertained to the defendant and the facts of the case?

#7 - A runaway slave is brought before the court for extradition under the Runaway Slave Act. He is known by the law to be the property of Mr. Smith. He appeals his return to the Smith Plantation before a jury. You are on the jury. Do you vote to send him back to his owner, in accordance with the law?

I think you need to define what "jury nullification" is. To me, it is when a jury returns a verdict that is contrary to what the law requires because they want a different result. You seem to want to narrow it further, but I am not sure you are being consistent.

This is a question of procedure. While I may be incorrect, you appear to like jury nullification when it produces a result you like, while claiming that there is no jury nullification (as you define it) when you don't like the result. Again, I may be inferring that incorrectly, but the point I have been trying to make is that increasing jury discretion -- which is what permitting jury nullification is -- does not necessarily produce the results you want in every case. It is just a different procedure, and the question is whether we want juries having more discretion or not. In particular, the question is whether we want juries to be able to ignore the law when they don't like what it says.

Originally posted by The Reaper
Here is another question for you.

Why is it that citizens on juries would be denied the right to determine the legitimacy of the law, while judges do it all of the time?

Look at Second, Ninth and Tenth Amendments for prime examples of judges using their personal prejudices to render decisions in defiance of the law. The Ninth Circuit Court of Appeals should provide ample evidence of this, as well as recent efforts by political parties to deny appointments to judges who would follow certain laws.

I think you know that I do not believe that judges should abuse their power by going beyond interpretation of the law. Why is it wrong for a judge to do it, but it is OK for a jury?

Originally posted by The Reaper
I want to be judged by 12 of my peers, on the facts, AND the law.

Now here is the ultimate policy question, and your position makes sense from a theoretical standpoint. The argument is that 12 of your peers are more trusted to make a decision affecting your liberty and property than a judge or a legislature. I generally agree, I think.

The problem is that I think you overestimate today's juries. They are NOT, in my limited experience, juries of your peers. What I have observed is that juries generally are composed primarily of people who have nothing better to do -- the jobless, the retired and government employees. I don't want those people judging me. Jury reform is a separate topic, of course.

[Jack Moroney (RIP)]

Originally posted by Roguish Lawyer

What I have observed is that juries generally are composed primarily of people who have nothing better to do -- the jobless, the retired and government employees. I don't want those people judging me. Jury reform is a separate topic, of course. [/B]

So if I get called for jury duty can I have the legal clerk contact you for a waiver because as a retired, jobless, former government employee I am obviously incapable of rendering an informed opinion? Would this require a retainer?

Jack Moroney