Full Version: Jury Nullification
This is another outgrowth of the current debate concerning the Libby trial, but I'd like to keep that debate there and debate the basic concept of jury nullification here more in the abstract. Let me set up a background on this issue. The Sixth Amendment to The US Constitution states......
Based on this fundamental right to a jury trial as defined in the Constitution, the concept of jury nullification would seem to be a perfectly constitutional thing for a jury to do. Here is a good treatise that speaks quite well to it. From that article, we get both sides of this issue.....
Ok, so here we are. On one hand, a jury has the right to decide the verdict in a case based on any criteria they wish to use and that includes disagreement with the law that was broken. And, no court can over-rule their decision under the Constitution. On the other hand, if a jury does indeed do this then they are effectively usurping the will of the people because they are over-turning elected legislatures who enacted the legislation, elected chief executives who approved the legislation and the courts who have upheld the legislation. 12 people can do that. Actually, ONE person can do that by hanging the jury and forcing a mistrial. That's a whole lot of power vested in the hands of 12 people.
I see compelling arguments on both sides on this one. So the questions posed for debate are......
1. Is Jury Nullification a good or bad thing to have?
2. If it is a good thing, should juries be informed that they have this option?
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
Aquilla
QUOTE
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Based on this fundamental right to a jury trial as defined in the Constitution, the concept of jury nullification would seem to be a perfectly constitutional thing for a jury to do. Here is a good treatise that speaks quite well to it. From that article, we get both sides of this issue.....
QUOTE
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.
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.
Ok, so here we are. On one hand, a jury has the right to decide the verdict in a case based on any criteria they wish to use and that includes disagreement with the law that was broken. And, no court can over-rule their decision under the Constitution. On the other hand, if a jury does indeed do this then they are effectively usurping the will of the people because they are over-turning elected legislatures who enacted the legislation, elected chief executives who approved the legislation and the courts who have upheld the legislation. 12 people can do that. Actually, ONE person can do that by hanging the jury and forcing a mistrial. That's a whole lot of power vested in the hands of 12 people.
I see compelling arguments on both sides on this one. So the questions posed for debate are......
1. Is Jury Nullification a good or bad thing to have?
2. If it is a good thing, should juries be informed that they have this option?
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
Aquilla
1. Is Jury Nullification a good or bad thing to have?
I think it's a bad thing - from my reading of the Sixth Amendment, the only reference to juries is that the accused shall have the right to be tried in front of an impartial one selected locally. Nothing about the rights of the jury itself.
To my mind, a jury should only ever concern itself with establishing guilt or innocence based on the facts presented at trial and the laws extant at the time of trial. Sentencing should not be their concern - that should be the province of judges. And neither should legislating from the courtroom - it's what the legislatures are elected for.
Now, that said, I would not be opposed to an electoral reform whereby the people's representatives were not elected, but selected (in the same way that juries are), especially in bicameral legislatures, and most particularly to replace the unelected House of Lords here in the UK with a number of regionalised juries, one per Parliamentary Bill, in a reformed Parliament which gave the House of Juries powers only of revision - no policy setting or primary legislative powers - but also gave it seniority over the Commons and the Executive i.e. if politicians can't get the bill past the People, they don't get it on the Statute Book.
But that's a system of government nobody uses anywhere, not to mention a whole other thread.
2. If it is a good thing, should juries be informed that they have this option?
Well, I don't think it is a good thing, so I'd rather see the option removed altogether so juries can concentrate on the matter at hand, rather than on anything more activist.
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
No. As I've said, the Sixth Amendment makes no mention of the role or rights of the jury other than to say that one must be available for criminal trials. It focuses on the rights of the accused, and rightly so.
I think it's a bad thing - from my reading of the Sixth Amendment, the only reference to juries is that the accused shall have the right to be tried in front of an impartial one selected locally. Nothing about the rights of the jury itself.
To my mind, a jury should only ever concern itself with establishing guilt or innocence based on the facts presented at trial and the laws extant at the time of trial. Sentencing should not be their concern - that should be the province of judges. And neither should legislating from the courtroom - it's what the legislatures are elected for.
Now, that said, I would not be opposed to an electoral reform whereby the people's representatives were not elected, but selected (in the same way that juries are), especially in bicameral legislatures, and most particularly to replace the unelected House of Lords here in the UK with a number of regionalised juries, one per Parliamentary Bill, in a reformed Parliament which gave the House of Juries powers only of revision - no policy setting or primary legislative powers - but also gave it seniority over the Commons and the Executive i.e. if politicians can't get the bill past the People, they don't get it on the Statute Book.
But that's a system of government nobody uses anywhere, not to mention a whole other thread.
2. If it is a good thing, should juries be informed that they have this option?
Well, I don't think it is a good thing, so I'd rather see the option removed altogether so juries can concentrate on the matter at hand, rather than on anything more activist.
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
No. As I've said, the Sixth Amendment makes no mention of the role or rights of the jury other than to say that one must be available for criminal trials. It focuses on the rights of the accused, and rightly so.
1. Is Jury Nullification a good or bad thing to have?
Yes.
It is an attempt to balance the power of the Law and the People, in a way which can be abused. There are clearly some situations where following the letter of the law can result in disastrous consequences. On the other hand, jury nullification can result in grotesque injustice.
2. If it is a good thing, should juries be informed that they have this option?
Whether it is good or bad or both, juries should be accurately informed about their powers. They should also be warned against abusing those powers.
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
I don't think that it really says anything one way or another about the Sixth Amendment. As already pointed out, it's not required by the Sixth Amendment; but it is also not forbidden by the Sixth Amendment.
Perhaps the best thing that can be done to minimize abuse of this system is to have our jurors be wise women and men. That's easier said than done. The battle between prosecution and defense over the selection of jurors, as petty and flawed as it may be, probably helps restore some balance to the system.
Yes.
It is an attempt to balance the power of the Law and the People, in a way which can be abused. There are clearly some situations where following the letter of the law can result in disastrous consequences. On the other hand, jury nullification can result in grotesque injustice.
2. If it is a good thing, should juries be informed that they have this option?
Whether it is good or bad or both, juries should be accurately informed about their powers. They should also be warned against abusing those powers.
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
I don't think that it really says anything one way or another about the Sixth Amendment. As already pointed out, it's not required by the Sixth Amendment; but it is also not forbidden by the Sixth Amendment.
Perhaps the best thing that can be done to minimize abuse of this system is to have our jurors be wise women and men. That's easier said than done. The battle between prosecution and defense over the selection of jurors, as petty and flawed as it may be, probably helps restore some balance to the system.
QUOTE(Aquilla @ Jul 10 2007, 09:51 AM) 
1. Is Jury Nullification a good or bad thing to have?
2. If it is a good thing, should juries be informed that they have this option?
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
Aquilla
2. If it is a good thing, should juries be informed that they have this option?
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
Aquilla
I'm not sure I see Jury Nullification as a distinct power. Juries are tasked with adjudicating guilt during trial (assuming it's a trial by jury). Jury Nullification strikes me less as a power (that is, the jury doesn't return a verdict of We Nullify) but rather a term used in legal circles (and some TV dramas) to explain why sometimes (for good or ill) juries ignore law and evidence in returning a verdict. By definition, a jury can "Nullify" a prosecution by the finding of Not Guilty in the face of overwhelming evidence. Of course, the pernicious thing is that there is no name for a jury finding someone guilty despite a lack of compelling evidence. That is, why is "Jury Nullification" bad but "Jury Empowerment" (I just made that up, go nuts on a better term) not a problem?
In the end, juries should be instructed to deliberate based on the law and the evidence presented. To suggest that this hides from them some great power is a bit...fantastical. A jury is instructed but can always choose to ignore those instructions based on belief, prejudice, sympathy, whatever. I personally think it a "bad thing" when juries move beyond law and evidence, not the least of which because the focus on law and evidence is, in part, to PROTECT defendants from jury prejudice, the people from excess sympathy and the legal process from whim but such decisions are also part and parcel of that system. In the end, we ask other citizens to sit in judgment of us but we ask that they confine themselves (as best they can, I'm not naive and I do understand how both sides in a trial play on emotion, twist and shade facts, etc) to the law and the evidence (the facts, as it were) in order to help them judge a bit more fairly.
I don't think it's so bad that 12 people in a room are told "this is the law, this is the evidence, is this person guilty?"
1. Is Jury Nullification a good or bad thing to have?
I think it is both. I think it can be good in that it can prevent corruption, but it can be bad in that it can cause corruption.
2. If it is a good thing, should juries be informed that they have this option?
That's a tough question. Jurors should be aware of their right to juror nullification - and, in 24 states, it is a right explicitly protected in the State Constitution.
In most of these states the right is protected specifically and only in cases of libel... much like the Zenger case on which Aquilla's treatise link is based.
But, there is no federally protected right to jury nullification and it may not be protected in many states.
And, I'm not sure if it is the judge's role to inform them of the right... That seems counter to the judges role in the process.
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
Jury Nullification has nothing to do with the Sixth Amendment.
I think it is both. I think it can be good in that it can prevent corruption, but it can be bad in that it can cause corruption.
2. If it is a good thing, should juries be informed that they have this option?
That's a tough question. Jurors should be aware of their right to juror nullification - and, in 24 states, it is a right explicitly protected in the State Constitution.
In most of these states the right is protected specifically and only in cases of libel... much like the Zenger case on which Aquilla's treatise link is based.
But, there is no federally protected right to jury nullification and it may not be protected in many states.
And, I'm not sure if it is the judge's role to inform them of the right... That seems counter to the judges role in the process.
3. If it is a bad thing, doesn't that defeat the intent of the Sixth Amendment?
Jury Nullification has nothing to do with the Sixth Amendment.
Quick clarification here on why I referenced the Sixth amendment. I was looking at the concept of jury nullification from the standpoint of the right of a person accused of a crime. That person has the right under the Sixth to be judged by a jury of their peers. Shouldn't it be that person's right to have the jury that's sitting in judgement fully apprised of their ability to reach a not guilty verdict despite the evidence presented to them? I see jury nullification as less the right of a jury, it's more of a legal power and more as ultimately the right of the person accused of a crime.
Aquilla
Aquilla
QUOTE(Aquilla @ Jul 10 2007, 08:52 AM)
That person has the right under the Sixth to be judged by a jury of their peers. Shouldn't it be that person's right to have the jury that's sitting in judgement fully apprised of their ability to reach a not guilty verdict despite the evidence presented to them? I see jury nullification as less the right of a jury, it's more of a legal power and more as ultimately the right of the person accused of a crime.
Aquilla
Aquilla
So you're asking if it is somehow unconstitutional to neglect to inform a jury of this ability?
From what source do juries gain this legal power?
QUOTE(entspeak @ Jul 10 2007, 07:22 AM)
QUOTE
So you're asking if it is somehow unconstitutional to neglect to inform a jury of this ability?
Yes, based on the Sixth Amendment rights to a trial by jury. Should not that jury be informed of the full scope of their powers?
QUOTE
From what source do juries gain this legal power?
I guess we could start with the Tenth Amendment.
QUOTE
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
And we can move on the latest court decision I can find on the subject in US v Dougherty in 1972 where the court addressed the issue head on......
QUOTE
III. The Issue of Jury Nullification
Our reference to the "intensity" factor underlying the pro se right should not be understood as embracing the principle of "nullification" proffered by appellants. They say that the jury has a well-recognized prerogative to disregard the instructions of the court even as to matters of law, and that they accordingly have the legal right that the jury be informed of its power. We turn to this matter in order to define the nature of the new trial permitted by our mandate.
There has evolved in the Anglo-American system an undoubted jury prerogative-in-fact, derived from its power to bring in a general verdict of not guilty in a criminal case, that is not reversible by the court. The power of the courts to punish jurors for corrupt or incorrect verdicts, which persisted after the medieval system of attaint by another jury became obsolete, was repudiated in 1670 when Bushell's Case discharged the jurors who had acquitted William Penn of unlawful assembly. Juries in civil cases became subject to the control of ordering a new trial; no comparable control evolved for acquittals in criminal cases.
The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law. The values involved drop a notch when the liberty vindicated by the verdict relates to the defendant's shooting of his wife's paramour, or purchase during Prohibition of alcoholic beverages.
Even the notable Dean Pound commented in 1910 on positive aspects of "such jury lawlessness." n32 These observations of history and philosophy are underscored and illuminated, in terms of the current place of the jury in the American system of justice, by the empirical information and critical insights and [**47] analyses blended so felicitously in H. Kalven and H. Zeisel, The American Jury. n33
Our reference to the "intensity" factor underlying the pro se right should not be understood as embracing the principle of "nullification" proffered by appellants. They say that the jury has a well-recognized prerogative to disregard the instructions of the court even as to matters of law, and that they accordingly have the legal right that the jury be informed of its power. We turn to this matter in order to define the nature of the new trial permitted by our mandate.
There has evolved in the Anglo-American system an undoubted jury prerogative-in-fact, derived from its power to bring in a general verdict of not guilty in a criminal case, that is not reversible by the court. The power of the courts to punish jurors for corrupt or incorrect verdicts, which persisted after the medieval system of attaint by another jury became obsolete, was repudiated in 1670 when Bushell's Case discharged the jurors who had acquitted William Penn of unlawful assembly. Juries in civil cases became subject to the control of ordering a new trial; no comparable control evolved for acquittals in criminal cases.
The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. Most often commended are the 18th century acquittal of Peter Zenger of seditious libel, on the plea of Andrew Hamilton, and the 19th century acquittals in prosecutions under the fugitive slave law. The values involved drop a notch when the liberty vindicated by the verdict relates to the defendant's shooting of his wife's paramour, or purchase during Prohibition of alcoholic beverages.
Even the notable Dean Pound commented in 1910 on positive aspects of "such jury lawlessness." n32 These observations of history and philosophy are underscored and illuminated, in terms of the current place of the jury in the American system of justice, by the empirical information and critical insights and [**47] analyses blended so felicitously in H. Kalven and H. Zeisel, The American Jury. n33
Aquilla
QUOTE(Aquilla @ Jul 10 2007, 10:16 AM)
And we can move on the latest court decision I can find on the subject in US v Dougherty in 1972 where the court addressed the issue head on......
A very interesting decision and one that I agree with on this issue. They go on to state that it is not necessary to inform a jury of the power to nullify and give good reason for why judges shouldn't be required to. They basically acknowledge what I stated in my first post: that jury nullification can be a good thing and can be a bad thing. They go on to state:
QUOTE
When the legal system relegates the information of the jury's prerogative to an essentially informal input, it is not being duplicitous, chargeable with chicane and intent [**61] to deceive. The limitation to informal input is, rather a governor to avoid excess: the prerogative is reserved for the exceptional case, and the judge's instruction is retained as a generally effective constraint. We "recognize a constraint as obligatory upon us when we require not merely reason to defend our rule departures, but damn good reason." n49 The practicalities of men, machinery and rules point up the danger of articulating discretion to depart from a rule, that the breach will be more often and casually invoked. We cannot gainsay that occasionally jurors uninstructed as to the prerogative may feel themselves compelled to the point of rigidity. n50 The danger of the excess rigidity that may now occasionally exist is not as great as the danger of removing the boundaries of constraint provided by the announced rules.
I agree with that assessment.
QUOTE(entspeak @ Jul 10 2007, 09:02 AM)
I agree with that assessment.
Ok, I just want to make sure I understand where you come down on this. Correct me if I'm wrong. (O'Reilly moment there)
1. You agree that there is an inherent legal authority for jury nullification?
2. You agree that a judge failing to notify a jury of that legal authority in a criminal trial does not constitute denial of due process?
Aquilla
QUOTE(Aquilla @ Jul 10 2007, 12:02 PM)
1. You agree that there is an inherent legal authority for jury nullification?
I believe that there are states that protect jury nullification as a right - the right of a jury member and not of the defendant. I concede that it is possible that this could exist elsewhere as a legal power - it certainly exists, either way. But even in those states where it is a right, there is either no requirement to inform or an explicit denial of the ability to inform a jury of their ability to nullify.
QUOTE
2. You agree that a judge failing to notify a jury of that legal authority in a criminal trial does not constitute denial of due process?
I think that no right is absolutely inviolable. I think it could be classified as a restriction of due process - and a justifiable one. But not an outright denial. Just because a judge does not explicitly inform a jury of their prerogative does not mean the prerogative doesn't exist. I think that if a court were to disregard a jury's nullification, that would be a denial.
I think that requiring every judge to inform every jury of their ability to basically ignore evidence and the law weakens the legal system irreparably - creates chaos. As such, if prohibiting a judge from informing a jury about its prerogative is necessary to prevent the "lawlessness" of juries, so be it. If it is a restriction of due process, I would consider that to be a constitutional restriction.
I would also say, that if you are going to serve as a juror, you should be aware of your power as a juror.
There is no such thing as perfect justice. It won't be achieved by denying jury nullification, but it is definitely not achieved by requiring a judge to inform juries about it.
Here is another treatise on the subject:
Jury Nullification: The Top Secret Constitutional Right
1. Is Jury Nullification a good or bad thing to have?
Good, very good. The right to trial by jury is based on three concepts:
2. If it is a good thing, should juries be informed that they have this option?
Good question. I don't think them being informed should either be required, or prohibited.
Good, very good. The right to trial by jury is based on three concepts:
- Juries as finders of fact. This concept is horribly reduced by disallowing the jury to ask questions not pertinent to evidence not produced, but the concept remains.
- Juries as triars of law. Juries are theoretically a microcosm of the community. It is their role to determine whether or not a law is just. If enough juries refuse to convict (say, California juries on Federal drug charges for medicinal pot), then the law itself is effectively repealed.
- Juries as determiners of whether a just law, in accordance with the facts, is justly applied in this particular instance. A perfect example would be our Jack Bauer scenarios. No jury will convict Bauer if his torture results in saving millions of people. One important consideration though is this: when the ends serves to justify the means, ya better be successful in reaching the ends. Good intentions are not enough.
2. If it is a good thing, should juries be informed that they have this option?
Good question. I don't think them being informed should either be required, or prohibited.
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