Jury Nullification is a pretty powerful tool, but not a lot of potential jurors seem to know about it. Can the Defense suggest it to the hurt?
Sent from my SGH-i677 using Board Express
ow!
Inn general, no – that is improper argument.
If a defense lawyer explicitly tells (or STRONGLY hints) that the jurors should ignore the law, the judge will slap him down hard.
But on a much more subtle level, lawyers often make emotional appeals to jurors to acquit obviously guilty defendants, and occasionally, it works.
How about the defendant himself? Can he appeal to the jury?
Sent from my SGH-i677 using Board Express
Oddly enough, the legal profession, especially those on the side of the state (judge and prosecutors) are remarkably hostile to the idea that jurors can do an end run around the letter or spirit of the law. I suspect the defence lawyer would be slapped down, given a contempt citation, and possibly censured by the bar association for suggesting it in open court. I’m not sure the judge could do much to the defendant that has not already been done, but there’s always the option of mistrial and do-over if the defendant is too blatant about it… with the warning that they will be appropriately restrained if they attempt to try that trick again…
But if the defendant says something, it would imply it happens in the sequence of their testimony - meaning they have to answer all the tough questions too.
I’ve long wondered why the concept of Jury Nullification isn’t part of the judge’s instruction to the jury.
IAAL, but this is at least partially IMHO. 
Jury nullification is a bug rather than a feature; that is, it’s not a legal doctrine or rule as much as a term of art or “shorthand” for the relative inviolability of jury verdicts. It’s a side-effect of the rule that a jury’s verdict should not be challenged with evidence of the jury’s deliberative process or its motives or methods in reaching the verdict. “A jury cannot impeach its own verdict.” Thus, if a jury ignores its instructions, the losing party seeking a new trial cannot (successfully) present juror affidavits that they ignored the instructions. But the purpose of that rule is finality and to keep losing parties from harassing jurors into “recanting” their verdicts, not to give jurors carte blanche to ignore the instructions the parties and judge so carefully crafted. 
As to arguments or instructions mentioning nullification, since nullification is itself not a rule – that is, no legislature or judge intentionally created it – then it makes sense that it has no formal recognition in the trial process.
Moreover, what form would a jury instruction take? Instructing the jury that it can nullify renders all the other instructions explicitly moot. :eek:
“Supporters of jury nullification think the second of these paragraphs - the one instructing the jury that it must find the defendant not guilty if the State did not prove him guilty beyond a reasonable doubt - is just fine. Somehow, however, those same supporters claim that a jury may disregard the first paragraph of this instruction. But why should this be so? After all, if a jury is free to use its status as ‘representative of the community’ or ‘the community’s conscience’ (or whatever else supporters of jury nullification claim gives the jury the prerogative to reject the trial court’s instructions of law), then should the jury not be able to question any instruction that it finds questionable or archaic?”
“For instance, why should a jury accept the trial court’s admonition that the defendant’s failure to testify should not be held against him? Clearly, this admonition is counterintuitive. Most jurors would expect in their daily lives that someone accused of criminal behavior would provide some defense or explanation. Most jurors would also conclude that a person’s failure to provide some explanation would indicate that he was guilty of the charge.”
"In fact, this real-world expectation is the law in almost every other jurisdiction in the world; it just so happens that in the United States, our courts have interpreted the fifth amendment to proscribe such an expectation by holding that a defendant cannot be punished for exercising his constitutional right of silence, even at trial. But, if - as the supporters of jury nullification contend - a jury can reject the trial court’s instructions of law, what can be wrong with a juror’s thinking the following: ‘Not holding a defendant’s failure to testify against him might have worked just fine 200 years ago when a bunch of rich, white guys wrote that protection into the Constitution to deal with the kinds of crimes and trials that occurred then, but clearly this archaic bit of colonial fluff has no legitimacy in the modern world of urban violence and street gang murders. It is a concept that has outlived its usefulness, and if it weren’t for a bunch of bleeding-heart ACLU-types, we would have gotten rid of it a long time ago so that we could really get tough on vicious criminals.’ ” People v. Smith, 296 Ill. App. 3d 435, 442-43 (1998).
An instruction that a jury cannot or should not nullify would be even more absurd, in that the jury would now know that nullification exists – don’t think about the pink elephant :rolleyes: – and would realize from the privacy and secrecy of its deliberations that it can nullify, so that having the court tell the jury that it cannot merely makes the court look foolish.
To get more philosophical and give my own opinion, nullification is akin to the safety valve on a steam engine; it’s a last resort rather than a routinely-used feature. If a poppet valve is blowing, something has gone pretty damned wrong. To use another analogy, nullification without instruction or argument is like the “break glass” cover on a fire alarm, extinguisher, or the like; it’s meant to ensure that the potential user doesn’t use the device unless he’s sure it’s necessary. IMHO, instructing or arguing nullification to a jury is giving the jurors an “easy out”; it should not be used unless the case is so egregious, such a moral dilemna, that the jury in effect stumbles upon nullification on its own.
In the jury selection, if a prospective juror asks about nullification, the judge will in no uncertain terms state that it is not allowed. The judge, in giving his instructions to the jury will state, directly or (more usually) indirectly that it is not permitted to nullify. If a fellow juror suspects that you intend to nullify, he can go to the judge and have you removed from the jury.
In spite of all that, it is perfectly legal to nullify, and if a nullifying verdict is returned, the judge has no recourse but to accept it and cannot take any action against a juror suspected of nullifying.
So in effect, a judge lies to a jury if he says that nullification is illegal.
In some states (New Hampshire comes readily to mind), the judge is required to inform the jury of Jury Nullification.
It is. As I have elsewhere pointed out, the juror’s oath is to find facts and apply the law as instructed by the court.
Isn’t it so curious that these sensitive jurors, who cannot bear to apply a law with which they disagree, are not so moved by their consciences to alert the court to this fact at voir dire or impanelment?
Because - at least in the U.K. - nullifying can set a precedent or even overthrow a bad law. Perhaps it’s even more important over here because we don’t have guns, but the ability to tell the government to get knotted is quite cherished.
The Master Himself has spoken on this subect:
The Straight Dope: What’s the story on jury nullification?
Cecil Adams:
"…case law…upholds the power of judges to refuse to let lawyers argue nullification or emphasize to the jury that they have this power. The Supreme Court said as much in the 1895 case of Sparf and Hansen v. U.S., 156 U.S. 51:
Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as, in their judgment, were applicable to the particular case being tried. … We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence."
The right of the defendant to make a personal appeal is not specifically covered
in The Master’s column, but perhaps the defendant could never be in a position
to make such an appeal unless acting as his own attorney, in which case he would
be subject to the same restrictions as a hired lawyer.
Sometimes, jury nullification happens when the jury just cannot convict the accused in light of other testimony.
My mother was a secretary for a Circuit Court of Appeals Judge. When she was summoned for jury duty, she thought she would be excused because of her job.
Instead she would up ForeWoman of the jury.
The case was basically a “Hatfields vs McCoys” - a long running family feud. The defendant was accused of assault.
One of the jurors - as reported to me by Mom, a “little old lady” - kept insisting “they’re all guilty!!”. Mom had to instruct her that the jury could not find all the people who testified guilty.
The defendant was found not guilty. As Mom reported to me: “he wasn’t any more guilty than the rest of them”.
Could you tell me a little more about circumstances among the jurors that might warrant a nullification?
What sticks in my head is a report (no cite) that a juror at the OJ Simpson trial told the judge that another juror had closed her ears like a deaf adder, and announced that she would not consider evidence, and vote “not guilty” come what may.
That always bothered me, if true. Couldn’t/shouldn’t that decision be nullified?
How? A jury doesn’t render an opinion, merely a verdict.
In the US, nullification prevents creation of precedent or judicial repeal of a bad law by preventing appellate review.
[QUOTE=Leo Bloom]
Couldn’t/shouldn’t that decision be nullified?
[/QUOTE]
Jury nullification refers to prevention of an otherwise proper conviction by the jury’s refusal to apply the law. The jury itself cannot be nullified, unless it returns a guilty verdict. In that case, the judge can enter a judgment notwithstanding the verdict - basically, a ruling that no reasonable jury could have found the defendant guilty based on the evidence presented.
The tricky part is that the system requires potential jurors to lie (or change their minds) if they have any inclination towards nullification.
It tends to be the custom in many courts for either the prosecutor or judge to ask every potential juror if they feel they can abide by the jury instructions, especially that of restricting their determination to matters of the facts of the case, with no consideration for how they feel about the law itself. Any who honestly reveal any inclination towards nullification are then excused.
Allow me to rephrase that: jury nullification refers to justice residing with the jury whereas the law resides with the court.
Hm. Crappy software, apparently. Persists in spamming us all with this nonsense.
Can you configure it not to do this?
The reason we have jury trials is so that the community, not the people in charge, decide whether an offense is a violation of the law that should be punished.
I would not describe jury nullification as a “bug”, but rather a way for the law to be vetted by the community. Technically, if a person touches you, that’s assault. Or, in the case mentioned above, there’s an ongoing multui-year feud and one person happens to be charged. 12 random people apply the test - is this not only correct in law, but “fair” according to social norms?
The original jury trial right in the Magna Carta was a reaction to the tendency of the crown to haul people into court, charge them with various crimes, the king’s pet magistrate would find them guilty, and the fine them to the benefit of the king. The jury is a balance on the overwhelming power of the state.
However, jury nullification is not something that should be debated in court. The testimony and arguments should center around what the law says and evidence whether the person did or did not break the law. If the jury is to decide the law does not make sense in this case, they should come to that conclusion from personal views, not from a grand debate over society in general.
If a lawyer could argue for jury nullification, the next step is to bring experts in to testify about the value or correctness of the law. The court is forone specific case, not a debate over law. We have legislatures for that. If a jury all on its own, unprovoked, decides a law is crap, or being seriously misapplied, then you can be sure that it must emphatically be so.
OTOH, a juror who refuses to listen to the whole case and make up their mind on that, and even is stupid enough to tell the other jurors so - that person is not doing their job and should be dismissed.