# Judges and the overturning of jury verdicts **URL:** \ **Category:** Factual Questions\ **Created:** [April 9, 2013, 10:01pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265 "2013-04-09T22:01:28Z")\ **Posts on this page:** 13\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 11, 2013, 4:48pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/21 "2013-04-11T16:48:16Z")
> [@drewtwo99](#): > > Bricker, if it really is as simple and cut and dry as you say, then why can a judge only find “as a matter of law” that the jury did not have enough evidence to preclude reasonable doubt, and not the other way around? What specifically within the law gives the judge a power to find “as a matter of law” that the jury was wrong when they turn in a guilty verdict, but not for a not guilty verdict? What if the judge honestly thinks that there was no reasonable doubt and that legally a jury should not have been able to come to a not guilty verdict based on the evidence provided? It is as simple and cut and dry as I say. What makes it lopsided is that the right to a trial by jury is stronger for the accused than it is for the state. So a judge who wants to disregard a jury acquittal is stopped by the accused’s right to a jury verdict. The state’s right to a jury verdict is not a factor. If you want a specific law, pick a state. In my state, the defense motion is called “strike the evidence,” and there’s a somewhat illuminating discussion in _White v. Commonwealth_, 348 S.E.2d 866 (1986), mostly in the negative. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 11, 2013, 4:50pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/22 "2013-04-11T16:50:22Z")
> [@lawbuff](#): > > I do have to correct myself about the criminal trial aspect, it was about civil trials as listed, Missouri: > > Freedom of speech–evidence of truth in defamation actions–province of jury. > > Section 8. That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, **determine the law and the facts.** So now I’d say that I was discussing criminal procedure. ---
**Author:** ![Morgenstern](https://avatars.discourse-cdn.com/v4/letter/m/f9ae1b/32.png) [@Morgenstern](https://boards.straightdope.com/u/Morgenstern)\ **Post date:** [April 11, 2013, 5:45pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/23 "2013-04-11T17:45:38Z")
> [@lawbuff](#): > > I’ve seen a few state constitutions from past study that states the Jury is the arbiter of both law and fact. > > What do you make of that?? I can’t imagine the system allowing a lay jury to make a finding of law with respect to a crime. What states would those be? ---
**Author:** ![That\_Don\_Guy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/that_don_guy/32/538_2.png) [@That\_Don\_Guy](https://boards.straightdope.com/u/That_Don_Guy)\ **Post date:** [April 11, 2013, 6:24pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/24 "2013-04-11T18:24:01Z")
> [@Shagnasty](#): > > I believe you are talking about the [Louise Woodward](http://en.wikipedia.org/wiki/Louise_Woodward_case) case in the Boston area. She was an English nanny who was suspected of causing shaken baby syndrome that caused brain damage and eventual death in the child in her care. > > You are going to have to read more about the case and come back with more detailed questions if you still have them. In her case, she was put on trial for murder and convicted. It wasn’t that the judge just disregarded the jury findings. She did go to prison for the better part of a year. However, she won an appeal and there were enough problems that surfaced in the way her original trial was handled that the charge was eventually reduced to involuntary manslaughter and she was let out with time served as her punishment. That’s not the version I remember. IIRC, the judge, during sentencing following the original verdict, reduced the charge to manslaughter and sentenced her to time served. The main problem here was, the defense was using a “murder or let her walk” strategy, and it was strongly believed that the jury, not given the option of manslaughter, decided that she couldn’t be acquitted for what she did. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 11, 2013, 7:04pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/25 "2013-04-11T19:04:55Z")
> [@Morgenstern](#): > > I can’t imagine the system allowing a lay jury to make a finding of law with respect to a crime. What states would those be? Indiana, Maryland and Oregon, [according to Volokh](http://www.volokh.com/posts/1220486861.shtml): [QUOTE=Eugene Volokh] Jury Power To Decide “Law and Fact” in All Criminal Cases: Apropos the Jury Rights Day post, I thought I’d mention that the Indiana, Maryland, and Oregon Constitutions specifically provide that: Indiana: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” Maryland: "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. Oregon: “In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.” I’m not an expert on jury power and jury nullification, though, and I can’t speak with confidence about the precise original meaning of the phrases, or about how judges have interpreted them. I should also note that quite a few state constitutions (including that of my own California) expressly guarantee a similar power, but only in libel cases. [/QUOTE] ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 11, 2013, 7:18pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/26 "2013-04-11T19:18:30Z")
> [@Northern\_Piper](#): > > Indiana, Maryland and Oregon, [according to Volokh](http://www.volokh.com/posts/1220486861.shtml): This is why I said (emphasis added): > [@Bricker](#): > > I’d be more than a little surprised to discover any state in which that provision exists and is given life by caselaw. To take the Maryland example, _Stevenson v. State_, 423 A. 2d 558 (Md Ct App 1980), discusses what this language actually means: > [@](#): > > Despite Article 23’s facial breadth, it is a postulate well recognized in the prior decisions of this Court, and one which the United States Supreme Court correctly observed in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that Article 23 “does not mean precisely what it seems to say.” Id. at 89. See, e.g., Giles v. State, supra, 229 Md. at 382-83, 183 A.2d at 365; Hitchcock v. State, 213 Md. 273, 283, 131 A.2d 714, 718 (1957). From its inception, the right of juries in this State to decide the law has not been construed by this Court as all-inclusive, but to encompass a much more limited scope. E.g., Giles v. State, supra, 229 Md. at 383, 183 A.2d at 365. The outer boundaries of what is now Article 23 were first set forth in an opinion by Chief Judge LeGrand (speaking for himself, but with the expressed approval in this regard of all the other members of this Court) in the case of Franklin v. State, 12 Md. 236 (1858), decided just seven years after the adoption of this article’s predecessor into the organic law of Maryland. Faced with the specific question of whether the constitutionality of statutes was within the province of the jury under this new constitutional practice, the Chief Judge wrote: > > > [@](#): > > > > It was argued, that the true interpretation of these words authorized the jury to judge of the constitutionality of the Act of Assembly. In this opinion I do not concur. The debates which took place in the Convention that framed the Constitution, show what were the reasons that induced the adoption of the section… It was well known that some members, both of the judiciary and the profession, held, that juries in criminal cases were the judges of law as well as fact, whilst others held a directly contrary opinion. It is not now important to inquire on which side there was a preponderance of authority and reason. When the meaning of the terms are fixed, there is an end to controversy in regard to the relative powers of court and jury. > > So far as I know, there is no instance in which a court admitted that the words, “judges of law as well as fact,” authorized the jury to decide on the constitutionality of a law. With those who insisted upon the enlarged power conferred by the words in our Constitution, there was no pretense that it authorized a judgment by a jury of the constitutionality of an Act of Congress or of the State Legislature. All they contended for was, that in a criminal case the jury were not bound to abide by the interpretation of the court of the meaning of a law, but were free to construe and apply it according to their own judgments. They never pretended the jury had the right to decide on the constitutionality of an Act defining murder, arson or any other crime, but that they had the right to affix their own meaning on the particular law, and to determine for themselves, whether the facts proven brought the traverser within that meaning. The words in the Constitution have no greater significance since their incorporation into the organic law than they had previously,[[4]] and I think I have given to them the broadest latitude ever sanctioned or seriously countenanced by any respectable authority. [Id. at 245-46 (Emphasis added).] > > As this lengthy attribution indicates, and our later decisions confirm, the jury was not granted, by Article 23, the power to decide all matters that may be correctly included under the generic label — “law.” Rather, its authority is limited to deciding “the law of the crime,” Wheeler v. The State, 42 Md. 563, 570 (1875), or “the definition of the crime,” as well as “the legal effect of the evidence before [the jury].” Beard v. State, 71 Md. 275, 280, 17 A. 1044, 1045 (1889). And this Court has consistently interpreted this constitutional provision as restraining the jury’s law deciding power to this limited, albeit important, area. Thus, we have held that it is not within the province of the jury to decide whether a statute has been repealed, Nolan v. State, 157 Md. 332, 340, 146 A. 268, 271 (1929), whether it has operative effect, Slymer v. State, 62 Md. 237, 241 (1884), or if it is unconstitutional, Hitchcock v. State, supra, 213 Md. at 283-84, 131 A.2d at 718-19; Franklin v. State, supra. Moreover, we have decided that juries are not permitted to hear or act upon preliminary questions such as the court’s jurisdiction. Kelly v. State, 151 Md. 87, 98-99, 133 A. 899, 903 (1926). See also Hitchcock v. State, supra; Dennis, Maryland’s Antique Constitutional Thorn, 92 U. Pa. L. Rev. 34, 39 (1943). In addition to these restrictions, it has been long recognized that questions of admissibility of evidence and competency of witnesses are for the court alone to determine and were not transferred to the jury for decision by Article 23. E.g., Lewis v. State, 285 Md. 705, 724, 404 A.2d 1073, 1083 (1979); Giles v. State, supra, 229 Md. at 383, 183 A.2d at 365; Vogel v. State, 163 Md. 267, 272, 162 A. 705, 708 (1932); Bell, alias Kimball v. State, 57 Md. 108, 120 (1881); Wheeler v. State, supra, 42 Md. at 570. See Brady v. Maryland, supra, 373 U.S. at 89-90. In fact, viewed affirmatively, the past decisions of this Court make it quite evident that the jury’s role in judging the law under Article 23 is confined “to resolv[ing] conflicting interpretations of the law [of the crime] and to decid[ing] whether th[at] law should be applied in dubious factual situations,” and nothing more. Dillon v. State, 277 Md. 571, 581, 357 A.2d 360, 367 (1976) (emphasis in original); see Hamilton v. State, 265 Md. 256, 288 A.2d 885, cert. denied, 409 U.S. 1006 (1972); Schanker v. State, 208 Md. 15, 21, 116 A.2d 363, 367 (1955). Even this area of the jury’s exclusive domain, however, has limitations. For example, in Blackwell v. State, 278 Md. 466, 365 A.2d 545 (1976), cert. denied, 431 U.S. 918 (1977), we pointed out that Article 23 “does not confer upon [it] … untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case.” Id. at 479, 365 A.2d at 553. Moreover, since “it is the duty of a jury to decide a case according to the established rules of law, … if it should misapply the law to the prejudice of the accused, and the trial court has the power to set aside the verdict and grant a new trial.” Giles v. State, supra, 229 Md. at 384, 183 A.2d at 365; accord, Beard v. State, supra. (Money quotes in red for emphasis) ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [April 11, 2013, 7:46pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/27 "2013-04-11T19:46:16Z")
It’s certainly not so in Ohio. The judge or magistrate decides the law; the jury decides the facts. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [April 11, 2013, 9:18pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/28 "2013-04-11T21:18:39Z")
> [@lawbuff](#): > > I do have to correct myself about the criminal trial aspect, it was about civil trials as listed, Missouri: > > Freedom of speech–evidence of truth in defamation actions–province of jury. > > Section 8. That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, **determine the law and the facts.** Doing some Googling of some choice bits of this quote reveal that you are citing headnotes in a reporter (from the Edwardian Era, to boot). Do you understand why that is not a very persuasive source? Do you have a more contemporary cite? Say within the last thirty years? ETA: I see **Bricker** has already noted that modern jurisprudence treats this (the notion of juries as arbiters of what the law says) as a non-starter. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 12, 2013, 3:17pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/29 "2013-04-12T15:17:15Z")
> [@Northern\_Piper](#): > > Indiana, Maryland and Oregon, [according to Volokh](http://www.volokh.com/posts/1220486861.shtml): Thanks for that cite, I knew I had read it about criminal juries somewhere. I did ask Bricker what he made of it, and he did reply it probably was not supported by case law, as he cited, but the point being I was right about it textually. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 12, 2013, 3:25pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/30 "2013-04-12T15:25:42Z")
Bricker, you cited case law for maryland, can you find any for Oregon and Indiana on the subject, thanks! I’d like to know myself. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [April 12, 2013, 3:43pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/31 "2013-04-12T15:43:54Z")
> [@Bricker](#): > > (Money quotes in red for emphasis) What is a money quote?? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 12, 2013, 6:13pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/32 "2013-04-12T18:13:20Z")
> [@lawbuff](#): > > What is a money quote?? The key items supporting the proposition for which the quote, the citation, is being offered. ---
**Author:** ![llcoolbj77](https://avatars.discourse-cdn.com/v4/letter/l/eb9ed0/32.png) [@llcoolbj77](https://boards.straightdope.com/u/llcoolbj77)\ **Post date:** [April 12, 2013, 7:13pm UTC](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265/33 "2013-04-12T19:13:30Z")
> [@Bricker](#): > > The judge’s job will include determining whether a per-paid debit card counts as “credit card fraud” merely because it has a Visa logo and transactions processed through the Visa network. In other words, even though the jury finds Abe used the card, that conduct may not constitute the crime of “credit card fraud.” This determination is a matter of law. Nitpicky: I don’t know that this is a great example of what you are trying to illustrate. Let’s say I moved to strike the evidence on the basis that even in the light most favorable to the Commonwealth, the prosecutor failed to establish that a pre-paid debit card is included within the definition of credit card as used in 18.2-195. I can see a judge going either way on this. Either granted: a pre-paid card is clearly not what was intended by the legislature blah blah blah, and here is a case that says that, case dismissed. Or Denied: whether a pre-paid credit card is included within the definition of credit card as intended in 18.2-195 is a question of fact. Counsel is free to make the argument that it is not. Practically speaking, I could easily see a Circuit Court judge going either way on this… and boy do they really hate dismissing cases on a motion to strike. [Previous page](https://boards.straightdope.com/t/judges-and-the-overturning-of-jury-verdicts/655265.md?page=1)