Jurors Need to Know That They Can Say No • Hacker News Board

Re: Jurors Need to Know That They Can Say No

#71

Post by prob_ » Wed, Dec 21, 2011, 9:35 PM UTC

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…

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.

for whomever wondering how tzs comes up with the numbers, he probably models this problem as a binomial distribution, e.g., Bin(12, 0.05). while binomial distribution is a good approximation for this case, i think hypergeometric is better, since it's not 5% anymore as soon as you choose one juror.

Re: Jurors Need to Know That They Can Say No

#72

Post by andrewla » Wed, Dec 21, 2011, 9:37 PM UTC

JoshTriplett wrote: post #62

andrewla wrote: post #19

Earlier quoted context omitted.

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 ensu…

If I had thought it through, I might have been able to offer white lies to cover the questions they asked. As it was, they didn't ask me anything so nice as "do you have a problem with the law in question"; they asked several questions related to that, including "do you have any feelings about drug legalization".

They didn't just ask if I could return a guilty verdict, either -- they asked if I would return a guilty verdict based on the law as explained by the judge if I felt that the facts supported the verdict. To be honest, I did answer yes to this one, although I did feel a twinge and my hesitation was palpable.

As for not knowing whether you'll say "guilty" or "not guilty", that's fair. They did describe enough of what the charges were that I find it hard to believe that I would convict, unless I exercised my power of "jury expandification", which would require me to convict them of the charge presented if I felt that they were guilty of other crimes, to make sure that the defendant received some punishment.

Re: Jurors Need to Know That They Can Say No

#73

Post by MaysonL » Wed, Dec 21, 2011, 9:43 PM UTC

karamazov wrote: post #20

burgerbrain wrote: post #14

Earlier quoted context omitted.

These aren't issues with nullification, they are issues with the "jury of your peers" system in general. Of course that, like democracy, is often deemed to be off limits for criticism simply because a few hundred years ago we agreed it was the best idea around.

Do you have an example of a better idea?

Here's one: choose our legislatures like we choose our jurys.

Re: Jurors Need to Know That They Can Say No

#74

Post by timwiseman » Wed, Dec 21, 2011, 9:48 PM UTC

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…

You make excellent points.

But the counterargument is that the point of having a jury is to protect people from the power of the government. If we want to say that a jury is there solely to evaluate the evidence, then I suspect that a judge sitting without a jury will likely do a better job.

But if the point is protect from the power of the government and avoid the risk of a corrupt judge, then nullficiation must be an available tool, and like any other tool it is only useful when it is known to exist.

Perhaps the answer to your concern about balancing is more education rather than less. Perhaps juries (at least in cases where one side requests it) should be informed both that nullfication is an option, and also that, as you said, it should only be applied when "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".

Re: Jurors Need to Know That They Can Say No

#75

Post by comex » Wed, Dec 21, 2011, 9:48 PM UTC

prob_ wrote: post #71

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…

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…

No distribution needed - 46% is 100% - (100% - 5%)^12, as if you were rolling a die 12 times. The population is large enough that the effect of removing 11 people from it should be negligible.

Re: Jurors Need to Know That They Can Say No

#76

Post by patrickgzill » Wed, Dec 21, 2011, 9:52 PM UTC

Chief Justice Oliver Wendell Holmes, Jr.: "The jury has the power to bring a verdict in the teeth of both the law and the facts."

John Jay (first Chief Justice): "The jury has a right to judge both the law as well as the fact in controversy."

Justice Byron White: "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority."

Thought these quotes should be in here ...

Re: Jurors Need to Know That They Can Say No

#77

Post by zbuc » Wed, Dec 21, 2011, 9:53 PM UTC

JoshTriplett wrote: post #61

powertower wrote: post #36

Earlier quoted context omitted.

> 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.

Yeah, you should keep off the soapbox until after the case has run its course. If you think that using jury nullification is a possibility for you, keep your mouth shut and just do it otherwise you'll be excused.

Re: Jurors Need to Know That They Can Say No

#78

Post by timwiseman » Wed, Dec 21, 2011, 9:56 PM UTC

cynicalkane wrote: post #47

Jury nullification is typically portrayed as a defense against unjust laws, and some judicial thinkers see it that way. But it's important to point out the dominant view and the current view of jurisprudence views jury nullification as kind of an unfortunate edge case. Here's the Fourth Circuit from 1969: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to…

Clearly, the Fourth Circuit at the time saw it that way. But that does not address the question of how was it viewed by the Framers who gaurunteed one (at least on the Federal level) in Article III. It also does not address the question (perhaps more relevant today) of what ought it to be and how ought it be treated?

It is possible, indeed likely given the history, that the Framer's saw providing nullifcation as part of the purpose of enshrining a jury trial in the Constitution.

Whether they saw it that way or not, the relevant question is, how ought we treat it? Should we treat it as an unfortunate side effect that we can't completely get rid of but should do everything we can to minimize? Or something to be embraced as essential? Or perhaps in between those two extremes, as something genuinely useful, but only "in extremis" when all better options have failed?

Re: Jurors Need to Know That They Can Say No

#79

Post by libraryatnight » Wed, Dec 21, 2011, 10:01 PM UTC

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 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."

I'd point to this portion of the article: "Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. "

In this context it's part of the awareness and reform process. Again, from the article: "In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors 'can ignore the law' if the law 'is producing a terrible result.' "

This is a peaceful and legal way of stating "This law is bunk, we won't help you enforce it."

Re: Jurors Need to Know That They Can Say No

#80

Post by timwiseman » Wed, Dec 21, 2011, 10:02 PM UTC

forgotAgain wrote: post #60

unoti wrote: post #3

When the shabby old man is put on trial for jury tampering, shouldn't a jury of his peers find him not guilty? The deliberation on that trial could be very interesting. Or very difficult because the judge won't let the defendant's counsel say anything. Or both.

I think that's why prosecutors try to scare defendants into plea bargains by charging them with the maximum offenses they can possibly justify. It's better for the prosecutors in these types of cases for the jury to not have a say.

I've had the pleasure of speaking to a couple of prosecutors and am in law school right now. They definitely try to get plea bargains, but it is more a matter of effeciency.

In any place with a remotely high population density, a prosecutor normally has more cases lined up than they can really do justice for and many more that they are deliberately choosing not to go forward with at all, not because they don't have plenty of evidence, but because they are focusing on the more significant cases. Getting a plea bargain is simply much faster for the prosecutor and much cheaper for the government than a full trial.