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Jurors Need to Know That They Can Say No

nytimes.com

81–90 of 137 posts

Re: Jurors Need to Know That They Can Say No

#81
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…

I answered that I would be willing to vote guilty if the law and the facts supported such a verdict.

This is absolutely true, and I am free to nullify (without having lied) if I find the law doesn't support such a verdict.

I'm wondering though what happened to the guy in NY (came to the comments here hoping someone had tracked that down). He was arraigned in Feb of this year.

Re: Jurors Need to Know That They Can Say No

#83
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…

I answered that I would be willing to vote guilty if the law and the facts supported such a verdict. This is absolutely true, and I am free to nullify (without having lied) if I find the law doesn't support such a verdict. I'm wondering though what happened to the guy in NY (came to the comments here hoping someone had tracked that down). He was arraigned in Feb of this year.

Interesting. I'm not a lawyer, but doesn't the fact that the law doesn't support a certain verdict obviate the need for nullification?

Re: Jurors Need to Know That They Can Say No

#84
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 choose to retry the defendant - if you think about it, if the prosecutors decided to try him once, why not twice? The odds are the same the second time around (i.e. the odds of not getting the 5% person on the jury).

Regarding "bogus convictions", the jury only gets to make its decision when a high enough evidentiary threshold is met. Otherwise, the judge must throw the case out for not meeting minimum requirements.

Think of it like this (note that this is my own approximate guesses taken from my law school class on Criminal Law) - "Reasonable doubt" may be a 95% confidence threshold for the jury to convict. For the decision to get to the jury, the judge has to decide that the evidence is at least 75% confidence level in his opinion. Its only 75% for the judge because he is not the finder of fact and the jury can reasonably decide that what the judge views as 75% certainty of guilt is actually 95% in their view.

So to sum up, the situation is not as dire as you would suggest. I agree that jury nullification can be a big problem in the wrong situations (racist communities, etc) and that is why the law tries to minimize its impact (e.g. defense attorneys cannot mention jury nullification to a jury during the trial) while preserving defendants' rights to a jury of peers.

Like seemingly every aspect of law, there isn't a clear cut answer either way.

Re: Jurors Need to Know That They Can Say No

#85

Earlier quoted context omitted.

> 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…

> If I had thought it through, I might have been able to offer white lies to cover the questions they asked.

I didn't intend to suggest white lies; I consider the responses I suggested entirely truthful, just carefully chosen. :)

> 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".

That could certainly make it more difficult. Depending on the wording of the questions, you may or may not have had the ability to give a truthful answer that would keep you on the jury. I certainly would not advocate lying.

> 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.

"if I felt that the facts supported the verdict" gives you all the leeway you need to say "yes" without reservation.

Re: Jurors Need to Know That They Can Say No

#87
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…

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 means we get a few more "not guilty" verdicts than we should, so be it. We make the same tradeoff with "innocent until proven guilty" and "beyond a reasonable doubt": better to let guilty people free than convict innocent people. The difference: we need "beyond a reasonable doubt" applied to laws, not just to people.

Re: Jurors Need to Know That They Can Say No

#88

Earlier quoted context omitted.

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 p…

Sounds like we need more prosecutors, or fewer laws, or both.

Re: Jurors Need to Know That They Can Say No

#89
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…

A completely obvious check on jury nullification that you've somehow overlooked is jury selection. Juries aren't chosen randomly.

Also, it seems like your argument can be logically extended to be an argument against trial by jury in general, or even against the whole idea of laws that carry punishment. People, especially civilian jurors, aren't predictable or controllable, so there's never any guarantee that some "objective morality" will be carried out by them. And you can't have laws without some person or group of people deciding what those laws are, which almost always will mean that there will be disagreement.

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