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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

#111

Post by lprubin »

vsl2 wrote: post #84
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…

Jury nullification has to do with returning a "Not Guilty" verdict in the face of evidence that would suggest otherwise. What you are talking about it a "hung jury" where the 5% person is able to prevent a unanimous "Guilty" verdict. Depending on the state, the requirement for conviction may be unanimity or something less (11 to 1, 10 to 2, I don't remember if it goes any less). In this cases, the prosecutors may cho…

"In this cases, the prosecutors may choose to retry the defendant - if you think about it, if the prosecutors decided to try him once, why not twice?"

Prosecuting a defendant is an expensive process. It's not free. And even though one hung jury won't save the defendant, if juries start hanging two or three times every time a crime is prosecuted, the state is going to have to start rethinking its stance on prosecuting that crime from a budget perspective alone.

The same tactic has been offered for contesting every speeding ticket to prevent governments from using it as a revenue stream. If everybody contested every ticket, it would cost more to in trial costs than the state would make in fines.

Re: Jurors Need to Know That They Can Say No

#112

Post by JoshTriplett »

jeffdavis wrote: post #100
JoshTriplett wrote: post #87

Earlier quoted context omitted.

I strongly disagree. Every juror should understand that they have a responsibility to consider the law, not just the facts. In most trials, that consideration will amount to "Yup, the law seems fine", with no further thought required. However, I believe that consideration ought to happen in every single trial, with every single juror. No reasonable doubt should exist that the law remains just and appropriate. If that…

Where does it stop? Say someone is on trial for tax evasion, because they paid only 20% rather than the 30% they owe under the law. Is it OK for a juror to say "gee, taxes should only be 20% anyway, so I'm going to let him off the hook"?

On a one-off basis, this doesn't represent any significant change to the system. People won't start evading taxes on the theory that they can argue for jury nullification, because they won't consistently get away with it.

On the other hand, with a tax rate of 90% (to use an extreme example), juries might start consistently acquitting people for not paying their taxes, and that sends a message.

In any case, I don't want to see any measures taken to stop the scenario you describe. It'll work out just fine on its own.

Re: Jurors Need to Know That They Can Say No

#113

Post by JoshTriplett »

tzs wrote: post #103
JoshTriplett wrote: post #87

Earlier quoted context omitted.

I strongly disagree. Every juror should understand that they have a responsibility to consider the law, not just the facts. In most trials, that consideration will amount to "Yup, the law seems fine", with no further thought required. However, I believe that consideration ought to happen in every single trial, with every single juror. No reasonable doubt should exist that the law remains just and appropriate. If that…

We already have a system to make sure laws remain appropriate: it is called an elected legislature. They system you are suggesting would in effect turn every trial into a little election on what the law should be, but with only a small fraction of the electorate voting, and the results only applying to that one case.

Checks and balances considered useful. I always want the option to exist, even though people won't need it in most cases.

And also, every case adds to the case history; it doesn't take many cases to create a pattern. So no, the results don't only apply to that one case. And even if they do, a single instance of well-applied nullification might not mean much to the general public, but it means the world to the defendant.

Re: Jurors Need to Know That They Can Say No

#114

Post by ken »

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…

First, criminal juries aren't randomly chosen.

Second, nullification is itself a check, for the power of the state prosecutor. If you think juries are powerful, remember that the prosecutor is more powerful even than the judge: without a decision by this one state employee, the defendant wouldn't even be a defendant.

From what I've read, something like 98% of criminal cases are pled out before a jury is selected. (Trials are expensive and risky for everyone involved.) So the dominant factor in one's fate, by more than an order-of-magnitude, is what charges the prosecutor decides to file.

Nullification, after all, is just one specific instance of a jury verdict: a way for the citizens to point out that the prosecution is without merit. Our justice system is based on the principle of "innocent until proven guilty", so it's quite deliberate that we err on the side of not convicting.

If there is a 5% chance that a juror would unconditionally acquit for a hate crime he agrees with, and even assuming the prosecutor is dumb enough to randomly select jurors, there's still not a 46% chance of acquittal. A single juror can merely hang a jury. The prosecutor could simply try the case again.

What would it take for me to be acquitted for a hate crime because of a bad jury? As a defendant, I'd have to be one of the 2% that would want to risk a jury trial, despite the evidence against me, over the advice of both my lawyer and the prosecutor, and even though most criminal jury trials result in conviction. Then the prosecutor would have to allow a jury to be selected that consisted of 12 people with the same 1-in-20 prejudice as my crime (or fewer than 12, with the remainder willing to be talked into acquittal). I'm sure it's happened, in certain times and places, but these days it looks like it'd be pretty rare.

Not every jury will return the same verdict for the same crime, but that's inherently not a failure of equal justice. (Jury selection would sure be a lot quicker and easier for everybody if we knew that every jury returned exactly the same verdict!) Sometimes juries will make bad decisions, but I haven't heard any proposed system that can yield justice regardless of the people involved. Better to have the possibility of 12 people who can decide to let me go free, than 1 person who can decide to imprison me.

Finally, IANAL, but I don't think that the legislature can legalize marijuana (short of repealing the Controlled Substances Act, which will never happen). It's a Schedule I drug, as declared by the DEA, an agency led by an appointee. It looks like the ACLU is suing the DEA over this matter. I think my state does want to legalize, and my reading of the Constitution indicates that we should have the right to, so in the mean time, nullification seems like a perfect fit here.

Re: Jurors Need to Know That They Can Say No

#115

Post by timwiseman »

cynicalkane wrote: post #105
timwiseman wrote: post #78

Earlier quoted context omitted.

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…

Well, original intent as a theory of law interpretation is considered problematic, and not really used by anyone. You can't necessarily read lawmakers' minds, and lots of law--especially the Constitution--was written by many different personalities often at odds with each other, where 'original intent' might not exist even theoretically. Some people confuse the 'original meaning' theories of someone like Scalia with…

I should disclaim that I am not a lawyer, but there are legal scholars that discuss actually using original intent and courts that cite specifically to intent in their decisions. Though, I agree fully that in attempting to argue intent you must still be able to tie it to what is written.

I also fully concur that many laws may mean different things even to the people involved in passing them, yet some times they can be clear, especially when laid out in clear records of the debate or in an explicit intent section as part of the bill.

The intent, when known, can help inform the way a law will be interpreted by the courts. Prof. Ian Bartrum discusses this in "The Modalities of Constitutional Argument" and Prof. Philip Bobbit goes into more detail in "Constitutional Fate" and "Constitutional Interpretation."

You have a good point that Scalia's 'Original meaning' is different from 'Original intent' and 'Original meaning' is far more objective. But that does not mean intent is not considered. For a modern case where Congressional intent was at the center of an 11th Circ. decision look at Harris v. H&W contracting Company, 102 F. 3d 516 (11th Circ, 1996).

[Edited to remove a redundancy]

Thouh, while I think intent here has relevance, I still think the more salient question is prudential. Regardless of how it came to exist, what should the role of jury nullification be?

Re: Jurors Need to Know That They Can Say No

#116

Post by Joakal »

JoshTriplett wrote: post #54
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…

In the opinion of a court, which would rather not recognize the concept at all. Courts hold a dim opinion of jury nullification, going so far as to legally sanction mentions of it in a courtroom, and to provide "instructions" to the jury that try to expressly prohibit them from considering anything other than whether the facts of the case meet the law as explained to them. Even hinting that you might understand the c…

Sounds like it's grounds for mistrial because the judges are giving incorrect legal advice, unless the appeal process judges don't like it too.

Why can't the judges ask politicians repeal the relevant laws instead of causing mistrials?

Re: Jurors Need to Know That They Can Say No

#117

Post by wnoise »

ejames wrote: post #35
colanderman wrote: post #4

"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." I don't get it; jurors are selected based on how they claim will decide ? That's all kinds of messed up.

It's worth remembering that jury nullification is a two-way street. Nullification is most famous for its history in racially-charged trials in the American South. Southern jurors would refuse to enforce criminal laws if the accused was white and the victim black. Nullified jury cases were one of the tensions that led to the American Civil War. That's one of the justifications for the power to dismiss jurors - for the…

> Nullified jury cases were one of the tensions that led to the American Civil War.

Sure, but in that case it was Juries refusing to enforce the (truly odious) Fugitive Slave Acts.

Re: Jurors Need to Know That They Can Say No

#118

Post by monochromatic »

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…

Why can't it be both?

Re: Jurors Need to Know That They Can Say No

#119

Post by kingkilr »

neilparikh wrote: post #108
dennisgorelik wrote: post #101

Earlier quoted context omitted.

Yes, if jurors feel that way about tax laws - then yes - acquit the defendant and possibly start changing tax law.

But then you're bringing opinion into the law. If the jurors on one trial think that 30% isn't fair, but jurors on another trial think that it is fair, you haven't got a fair system anymore. Isn't the law based on justice and fairness? And this doesn't only apply to tax laws. There could be a difference of opinion on other cases too. While the law nullification idea is a good idea in theory, it starts to break down i…

The supreme court has in past found that punishments which are capriciously applied are inherently cruel and unusual (Furman v. Georgia).

Re: Jurors Need to Know That They Can Say No

#120

Post by mukyu »

MPSimmons wrote: post #93
impendia wrote: post #26

I served as a juror on a ten week murder trial, and one thing I learned (to my extreme exasperation) is that you can't ask questions. I mean, you can ask, but every time I asked anything the judge gave some roundabout non-answer, and it was obvious that she was required to do so. In particular, the verdict hinged on some technicalities, and we got about 40 pages explaining the law. I attempted to clarify the exact me…

I've wondered before why, after the prosecution and defense lawyers are done with a witness, the jury can't also question the witness. Can anyone help me understand why that's not allowed?

http://en.wikipedia.org/wiki/Adversarial_system

http://en.wikipedia.org/wiki/Inquisitorial_system

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