I was watching a piece on the news this morning about a kid in GA who was sent up for ten years for having consensual sex with a 15 year old girl when he was 17. The age of consent in GA is 16. Members of the jury stated that they felt he had done nothing wrong, but that they were forced to convict him because the law was clear in this matter.
That made me think about jury nullification. Do juries really have that authority? If they vote not guilty, can a judge throw it out? (As an aside, can a judge throw out a guilty verdict?) Can the judge declare a mistrial? Can the prosecuter appeal a not guilty verdict?
If the jury votes not-guilty, the prosecutor cannot appeal, and the judge cannot throw the verdict out. Nor can the judge declare a mistrial merely for the reason that the jury voted not guilty.
A judge can throw out a guilty verdict, if he finds that, as a matter of law, no reasonable jury could have reached the verdict of guilty. This is not an exercise where he substitutes his determination of credibility for that of the jury; he is deciding that the record does not contain sufficient evidence that, if believed, would permit a finding of guilty.
In the criminal context, the vast majority of cases heard on appeal are convicted defendants. Prosecutors simply don’t have much chance to appeal. There is, however, the curious creature called an interlocutory appeal.
When a convicted defendant appeals, he is essentially saying to the appeals court: “Here are a list of the legal errors that happened at my trial. If those errors had not happened, I would have been acquitted.”
But what happens when a court makes a legal error that cripples the prosecution’s case? For example, the judge suppresses evidence even though the prosecution believes that the evidence should be lawfully admitted. If the issue is severe enough that the prosecution cannot continue the case without a change in the ruling, they may be granted permission to appeal just that issue.
Another point about jury nullification is that, although juries have the power to nullify, courts can (and almost always do) forbid the defense lawyer from telling the jurors they have the power.
Thanks, Bricker. I’m still curious about nullification, though. Let’s say all jurors believe the defendant is guilty under the law as written, but has done nothing wrong (because the law is not fair, they don’t like it, whatever). They want to use the power of jury nullification to find him innocent, but they aren’t sure they have this power. Nothing in their instructions leads them to believe that they can do this, but one juror thinks he read about it somewhere. Accordingly, they ask the judge point blank whether such a thing exists. It sounds like the judge can tell them yes or no on a whim, and if he lies and says “no”, that’s not even grounds for the defense to appeal. Is this true? Is my hypothetical absurd or illogical?
Let’s assume this is California, for the sake of argument.
If the jury sends a question to the judge that says, “Judge: we are thinking of using ‘jury nullification’ if we have that power. Do we?” I magine Cliffy is right – the judge would gather the prosecution and defense in chambers, read them the note, and then say, “I intend to answer as follows: ‘The instructions I have given you already are an accurate statement of the law in this case and the procedure you must follow.’”
The prosecution would agree; the defense would go apoplectic demanding that the judge tell the jury they had the right to nullify; the judge would refuse but let the defense make his record; and then the judge’s answer would go back to the jury.
And if the jury returned a guilty verdict, the defense would not have a winner of an issue on appeal.
I should point out that the classic saying is: “The jry has the power to nullify, but not the right.”
What that means is that it’s the same situation as if the jury decided to return a verdict of guilty, even if they didn’t believe the evidence. For example, let’s imagine a man accused of robbery. The victim identifies the accused as the one that robbed her at gunpoint.
Now, that’s legally sufficient to sustain a verdict of guilty.
On defense, the accused testifies, saying he was not in the city that day. On cross, it comes out that the accused has prior felony convictions. The judge cautions the jury the consider his felony convictions only as they relate to his credibility, not for any other purpose.
As it happens, the jury members simply don’t believe the woman got a good look at the robber. But they think to themselves, “Well, that guy is a felon, so he probably did this crime, and even if he didn’t, he’s probably done a lot of other stuff that they never caught him for.” And they vote guilty.
Now, the jury has the absolute power to do this. But they don’t have the right. They are ignoring the judge’s instructions and their role as finders of fact, and giving a judgement based on their own prejudices.
So, too, does the jury pervert the system when they decide to return a verdict of “not guilty” even though they are convinced that the facts of the case would compel a guilty verdict. There’s no questioning their power… they can just say “Not guilty.” They don’t have to give a reason. But they are substituing their own prejudices for the law.
Back in high school history, I learned that in the early days of the United States, Congress passed a law making it illegal to criticize the government. Yes, really. Several juries refused to convict people of this offense, however, and eventually the courts declared the law unconstitutional. Thus was born the concept of jury nullification.
The jury has simply found this specific defendant “not guilty” of the charge in this specific case. No effect on legal precedent (which is normally based on Judges’ rulings). OJ Simpson got off on his murder charges, but it had no precedent effect – murder is still illegal in California.
But the jury will generally make it clear to the judge & prosecutor why they found him not guilty. This may make the prosecutor hesitate to bring such charges against another defendant in the future. If enough prosecutors do so, even though the law remains on the books, it is effectively unenforced. (Here in Minnesota, it’s illegal to have a retail store open on the Christian Sunday. But lots of stores just ignore this, and so do the police & prosecutors. If you tried to get a cop to arrest the Wal-Mart manager for being open on Sunday, the cop would just laugh at you.)
And the jury may even tell the news media why they returned this verdict. This will cause some public comment, and may make the legislators look again at this law.
According to the report, and I may not be accurate here, there were three or four other boys involved. The incident took place at a party and was videotaped. I guess the tape got back to someone who didn’t like it. The other boys plea bargained but the boy in question refused to do so because he didn’t want to register as a child molester.
I used to hear a lot about the Fully Informed Jury Amendment that would compel judges to instruct juries that they had the right to judge not only the facts, but the law. This was usually made in references to marijuana cases. I was just thinking about how some juries in the 1960’s South might have abused it during trials of Klansmen accused of crimes against blacks. Just food for thought.
You probably studied the trial of John Peter Zenger. You also probably went to a better high school than I did. I didn’t learn about John Peter Zenger until law school.
I still have a viscerally negative reaction to the notion of jury nullification, because it requires a jury to swear an oath to do one thing, but then actually do the opposite of what they promised to do. Particularly when there is no way to guarantee that justice will be served thereby. I am compelled, however, to admit that in Zenger’s case the jury did justice.
Making legal precedent is almost always considered the purview of appellate courts. Any ruling by a trial court judge, particularly on a legal issue (as opposed to a factual issue), is not binding on other trial court judges in the same or other jurisdictions, res judicata aside.
In a practical sense, a jury’s ability to nullify comes from the fact that deliberations are secret. All a jury produces is a verdict, not a report on how they reached the verdict. In the OP, for example, suppose the jury decided to nullify the law and find the defendant not guilty. How would the judge (or anyone else) know for sure that it was a case of nullification? The jurors might simply have believed the state hadn’t proved its case beyond a reasonable doubt.
I don’t think the members of a jury would necessarily have to ask about nullification to believe they could do it. Most people are smart enough to see that when you are deliberating in secret you can come up with any verdict you want, for whatever reason you want.
IIRC, jury nullification first arose in the pre-Revolutionary colonies when juries acquitted their fellow colonists who were charged with violations of various British laws which had little public support here (the Stamp Act, for instance). The Brits caught on and scaled back the right to trial by jury, which angered many (and was mentioned in the Declaration of Independence as an example of George III’s tyrannical rule).
As a legal concept nowadays, jury nullification is kind of like a constitutional monarch’s reserve powers: It’s there, it should be rarely used if the system is working at all well, and to define its parameters is so fraught with potential problems - and may, in the future, come to be seen as unwise and/or overly-restrictive - that there’s a loose consensus in the legal community to not even try.
Would I want a jury to acquit someone even if the prosecution proved she’d committed some dopey offense that hurt no one and shouldn’t still be on the books? Yes.
Would I want jury nullification to take place with any frequency? No. Definitely not. Left unchecked, too often used, and anarchy will be the result.
This happened many years ago in California regarding licensing of station wagons. The vehicle code required that station wagons have commercial, as opposed to private passenger auto, licenses if any cargo was carried in the vehicle.
The CHP started ticketing station wagon drivers carrying things like suitcases to the airport for not having a commercial license. Drivers finally began pleading not guilty and jurors refused to convict. The legislature got the word via the news media and the law was changed.
