In fact, as an example, in Canada I believe it is not allowed to mention the penalty the defendant faces if convicted. (Not sure what it is in the USA). The defence cannot even hint at nullification with some line like “if you convict him for this trivial offense, he will get 10 years in jail.”
In the Robert Latimer case, for example, one of the jurors said they would not have convicted if they had known the charge meant a mandatory 10 years in jail. There’s a case where the jurors felt “even though it’s a mercy killing, you did something wrong enough you should not get off free.” They must have though based on the facts, the judge would give him a year or so. The judge tried, but the appeals court said he had no such leeway. Yet people who deliberately and outright kill others for evil reasons get less time in jail.
Hasn’t it only been forty or so years in the USA since this was the case? The Fifth Amendment simply gives a Defendant the right not to testify. It doesn’t say that a jury can’t use a failure to testify against the Defendant. That is judge made law from the 1960s is it not?
Jury Nullification is simply refusal to apply a law that a juror believes to be unjust. In other words, the jury nullifies the law. What people don’t seem to know is that the people create the state to do certain things for them. In this case make laws that we believe are fair and correct and so on, but we don’t have any control over what laws they make. So, if a juror believes the law to be unjust, he may vote not guilty, for whatever reason he believes, and no one can force him to change his vote.
Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: “You have a right to take upon yourselves to judge [both the facts and law].”
John Adams said, “it is not only his right, but his duty – to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
I think these men were more knowledgeable about whether juries should be informed of their nullification powers than anyone alive today. Most people’s knowledge of this subject is from tv shows where a judge tells jurors they must judge the facts only. The law is his concern. And that is just false.
Examples of famous nullifications:
(Zenger’s Case, 1735…Law made it illegal to criticize public officials. Paper printed true statements (a novel idea for a newspaper huh) critical of governor of New York. The jury acquitted even though the charges were correct by the law.
Fugitive slave laws.
Despite the courts refusal to inform jurors of their historical veto power, jury nullification in liquor-law trials was a major contributing factor in ending alcohol prohibition. (Today in Kentucky, jurors often refuse to convict under the marijuana-prohibition laws).
So, today we have judges who tilt the court in favor the prosecutor by lying to prospective and actual jurors about their powers and I for one have no problems with a juror who lies to the court about knowledge of the power of nullification.
The whole reason this power exists is as a last check on the power of the state. The government can make any law they like, and bring citizens to court for breaking it. So, the last check we have against lawful tyranny is refusing to send people to prison for doing something a juror doesn’t believe a person should go to prison for.
Not entirely. A reasonable argument could be made that the sole purpose of the 5th amendment would be to not to put a Defendant in the position of either having to incriminate himself or commit perjury.
If the jury then infers guilt from no testimony from the Defendant, then that’s a strategic choice he needs to consider. The Defense attorney would be free to argue that the Defendant isn’t very articulate, or would be ensnared by a tricky prosecutor on cross examination.
I don’t necessarily subscribe to the view, but the 5th (as it relates to self-incrimination) could be read very narrowly and still have relevance.
Yes. The judge, thinking you were trying to get out of jury duty, would make sure you stayed on said jury duty for as long as possible, but on future dates wearing different clothing.
I speak only from my own personal experience in Florida when a young black male was on trial. A couple of potential jurors, thinking they were clever, expressed racist sentiments and said they couldn’t be fair jurors. The judge dismissed them from that trial, but made clear that they were still to report for duty and would be seated in a “more suitable” case for them. The rest of us that weren’t selected got to go home and were done with jury duty.
Okay then. What would happen if I made it clear to the judge that I would likely nullify anything that carried a possible prison sentence, because I believe that sending someone to prison would likely expose them to inhumane conditions? And the judge believes my convictions and doesn’t think I’m saying this just to get out of jury duty.
IIRC, the Napoleonic Code (his law for France, and after his adventures, much of Europe and their colonies) forces a defendant to testify, but his testimony cannot be used against him to charge him with perjury. The concept was that a guilty man would say anything to get off; the court was entitled to hear his side but not to put him into a Catch-22 position.
Of course, Napoleon was after the US consitution. Did the right against self-incrimination exist in British common law at the time? DI Napoleon codify French common law in this regard?
Of course the logic of not forcing you to testify is because it is the ultimate “fishing expedition”. You charge someone based on minimal evidence, then make them explain to the jury whether they are guilty. Slick liars will get off, nervous people telling the truth, or those with unconvicing stories may be convicted. Interrogation by threat of contempt… Which is why things like Grand Juries generally are not accepted practice in other places.
<ASIDE> Colibri - was that an insult… or a sig? </ASIDE>
Yep, the judges tend to be either fairly smart, fairly experienced or both.
My last jury duty I was selected as one of the 12 members plus 6 alts and then voir dired. It was a case involving a meth dealer/transporter. His lawyer, a public defender that look liked he’d seen better days, asked me if I thought his client was probably guilty. I said yes, based on a preliminary description of the arrest, I thought it was statistically likely that he was guilty. I then said that that wasn’t the threshold of proof the prosecutor was responsible for providing and that I’d have to be shown beyond a reasonable doubt that he was guilty. Defense lawyer looks pleased.
A couple jurors down the bench another juror was asked his thoughts and he said, I agree with the other juror (me). Judge and both attorneys go huddle and when they come back the prosecutor (if it had been a TV show you’d have known she’d be going for DA the next season) said thanks but no thanks. Judge shows me the door and indicates I’ve completed my obligation.
IMO, the legal system wants jurors to essentially be uninformed applause meters to the process.
At the time I was available to serve and wanted to.
These guys play together on the same court, so to speak. IMO you’d be a particularly poor lawyer to play that card on anything less than a unique case.
The main use for jury nullification in the United States is for juries to acquit white defendants who murdered black people. Even prosecutors who wanted to wouldn’t bother bringing cases with black victims to trial, because it would be a waste of time. No jury would convict a white man for offenses against a black man. And since juries were made up of eligible voters, and blacks were excluded from voting, juries were all white.
There’s your “conscience of the community” right there.
