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Jurors Need to Know That They Can Say No

nytimes.com

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Re: Jurors Need to Know That They Can Say No

#61

Post by JoshTriplett »

powertower wrote: post #36
mindcrime wrote: post #10

Earlier quoted context omitted.

It probably varies by state (or not), but the last time I was on a jury, the jury selection process went like this: 1. 12 jurors are seated. 2. the prosecution asks questions of the jurors, either as a group (eg, "raise your hand if X") or individually. 3. the defense does the same thing 4. the prosecution can excuse any jurors they think are not suited for the case 5. the defense can do likewise 6. If less than 12 j…

> And the questions the prosecution asks are often framed like "Is there any reason you would fundamentally be unable to return a 'guilty' verdict in this case?" or "is X a reason you would not be able to return a 'guilty' verdict?" etc. In my case it was a civil trial and he (the plaintiff's attorney) asked everyone to raise their hands if they thought they could follow the instructions of the court. I kept my hand…

> It was very nerve wrecking having to do that (being in the court room for the first time, and all that). But worth it.

You got to make a point to a small room full of people. You didn't, however, get to have any effect on the verdict, so ultimately your opinions on jury nullification had no effect except to get you kicked off a jury. Unless you wanted to get kicked off the jury, that doesn't seem worth it to me.

Re: Jurors Need to Know That They Can Say No

#62

Post by JoshTriplett »

andrewla wrote: post #19
mindcrime wrote: post #10

Earlier quoted context omitted.

It probably varies by state (or not), but the last time I was on a jury, the jury selection process went like this: 1. 12 jurors are seated. 2. the prosecution asks questions of the jurors, either as a group (eg, "raise your hand if X") or individually. 3. the defense does the same thing 4. the prosecution can excuse any jurors they think are not suited for the case 5. the defense can do likewise 6. If less than 12 j…

I was called up for jury selection in Manhattan, and this was my experience. They asked if anyone had a problem with the law in question (it was a drug case) and then asked if I would be able to return a guilty verdict. I was not paneled on the jury. In my case, a large number (>100) jurors were dismissed for what did not appear to be any reason, so it may have been something else I said or something I wrote on the q…

> I don't see how a believer in nullification can get on a jury without lying.

If you're going into a case knowing you'll say "guilty" or "not guilty" without actually hearing the facts of the case, you should get kicked off the jury, independent of your belief in jury nullification. If you plan to decide based on both the law and the facts of the case, you should listen very carefully to the questions asked, to ensure that your boolean answers remain truthful.

Question: "Do you have a problem with the law in question?" Unspoken answer: "Depends on the facts of the case." Boolean answer: "No."

Question: "Would you be able to return a guilty verdict?" Unspoken answer: "Yes, I have the ability to do so, and in general a belief in jury nullification means I want to decide based on the facts of the case as well as the law, which the constitution of my state specifically gives juries the power to do." Boolean answer: "Yes."

Re: Jurors Need to Know That They Can Say No

#63

Post by tzs »

Suppose just 5% of the potential jurors believe, say, that it should not be illegal to kill an abortion doctor, or to beat up someone who dares to be homosexual in public, or to beat up someone who dares to flirt with a white woman while being black, and so on.

If you have a jury of 12 and require a unanimous verdict for conviction, then 46% of randomly chosen juries will not convict people for the aforementioned crimes no matter what the evidence, because they will include at least one person who believes those acts should not be criminal.

That spits in the face of the notion of equal justice for all. You and I commit a crime together, but have separate trials. The evidence is the same for both of us, but one of us is convicted and one not, because one of us happened to get one of those 5% who thinks stomping blacks or gays who get out line is OK.

Ugh.

Another big problem is that once you tell jurors they can ignore the law in order to acquit, they will figure out they can also ignore the law in order to convict. Bogus convictions won't be as frequent as bogus acquittals, but there will be some. (And you can't count on the judge throwing out the conviction in those cases, because the judge won't be able to distinguish those convictions from those where the jury simply believed the prosecution's evidence and witnesses over the defendant's evidence and witnesses).

Our system is designed around checks and balances. How do you provide checks and balances for the nullification power? The only one that anyone has been able to come up with is to not tell the jury about it. That way, it only gets used in cases where some juror recognizes that not only would there be an injustice in applying the law to the case at hand, but that there has been a breakdown of the system making it so that this injustice will not be addressed elsewhere, so that the juror decides that even though he has sworn to uphold the law, he must break that oath.

Nullification is almost never appropriate for a marijuana case. Even though I think marijuana should be legal, and I know all about nullification, I would never use it there at this time, simply because the system has NOT broken down in this area. Want to stop people from getting convicted of marijuana crimes? Then elect legislators who will decriminalize marijuana.

Re: Jurors Need to Know That They Can Say No

#64

Post by onemoreact »

tzs wrote: post #63

Suppose just 5% of the potential jurors believe, say, that it should not be illegal to kill an abortion doctor, or to beat up someone who dares to be homosexual in public, or to beat up someone who dares to flirt with a white woman while being black, and so on. If you have a jury of 12 and require a unanimous verdict for conviction, then 46% of randomly chosen juries will not convict people for the aforementioned cri…

Nullification is balanced around the hung jury process. http://en.wikipedia.org/wiki/Hung_jury If a jury can't decide in some time frame the judge can decide to end the trial without a verdict and enable a new trial to occur. Your constitutional protection vs multiple tryals only occurs after a jury has said not guilty it does not apply when a jury can't decide on a verdict.

PS: In the US In the United States, the result is a mistrial, and the case may be retried. Some jurisdictions permit the court to give the jury a so-called Allen charge, inviting the dissenting jurors to re-examine their opinions, as a last ditch effort to prevent the jury from hanging. The Federal Rules of Criminal Procedure state, "The verdict must be unanimous...If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed...If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed...If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree."[7]

Re: Jurors Need to Know That They Can Say No

#65

Post by MaysonL »

redthrowaway wrote: post #57
dfxm12 wrote: post #28

Earlier quoted context omitted.

I don't think the lawyers are implying that they are contemptuous of jury nullification with this strategy. I think they are trying to downplay the impact of the leaflets, playing their client off as a goofy old man with silly ideas that everyone would ignore like a beggar.

I imagine a good lawyer would argue both that the leaflets were harmless, and that it was constitutionally protected speech, as a way of covering all angles.

And I would also hope that his lawyer(s) will get the leaflets entered into evidence, so that the jury can read them.

Re: Jurors Need to Know That They Can Say No

#66

Post by Qo »

I'm a little disappointed that the article doesn't mention a serious practical impediment to nullification - the "voir dire" process of juror selection. They ask you a series of questions, one of them usually being "Will you apply the law as I explain it to you?" You are 100% within your rights to answer no - they'll excuse you from the jury. If you say "yes", however, but you mean "no", then you have committed perjury. You won't get caught if you're crafty about it, but it's still a relevant detail. A more accurate title might have been: "People can do whatever they want as long as they're OK going to jail if they get caught"

Re: Jurors Need to Know That They Can Say No

#67

Post by eridius »

Qo wrote: post #66

I'm a little disappointed that the article doesn't mention a serious practical impediment to nullification - the "voir dire" process of juror selection. They ask you a series of questions, one of them usually being "Will you apply the law as I explain it to you?" You are 100% within your rights to answer no - they'll excuse you from the jury. If you say "yes", however, but you mean "no", then you have committed perju…

Wouldn't it only be perjury if you had already decided to nullify when you were asked the question?

Re: Jurors Need to Know That They Can Say No

#68

Post by barkingllama »

tzs wrote: post #63

Suppose just 5% of the potential jurors believe, say, that it should not be illegal to kill an abortion doctor, or to beat up someone who dares to be homosexual in public, or to beat up someone who dares to flirt with a white woman while being black, and so on. If you have a jury of 12 and require a unanimous verdict for conviction, then 46% of randomly chosen juries will not convict people for the aforementioned cri…

Well that's just like, your opinion, man.

Re: Jurors Need to Know That They Can Say No

#70

Post by Qo »

eridius wrote: post #67
Qo wrote: post #66

I'm a little disappointed that the article doesn't mention a serious practical impediment to nullification - the "voir dire" process of juror selection. They ask you a series of questions, one of them usually being "Will you apply the law as I explain it to you?" You are 100% within your rights to answer no - they'll excuse you from the jury. If you say "yes", however, but you mean "no", then you have committed perju…

Wouldn't it only be perjury if you had already decided to nullify when you were asked the question?

Probably. If they charge you, are you comfortable with that as your defense?
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