Well, we differ considerably, but no problem. But I think this is what leads to more miscarriages of justice. Too many times, we hear of some juror coming out of a courtroom, who thought they had to convict somebody on a law they thought was a bad law to begin with, but went ahead and had them sentenced anyway despite their good conscience wanting otherwise.
I was being sarcastic with the “if you’re smart enough (correct me if I’m wrong) comment. But I think jurors should be more aware of their rights or power (pick one or both) to nullify a law prior to a court case–and if we need to make a law to keep them from remaining in ignorance, then we should get one.
This is a similar phraseology I’ve seen on some internet cites–stating jurors have the power to nullify, but not having that right. Or at least they don’t have the right to know they have that power.
First, and let me make this as clear as I can, any one who tells you that the Sparf case, the Moylan case or the Aaron Buhr treason case or any other decision represents or endorses or approves the power of a trial jury to find the law for themselves and reject the trial judge’s instructions on the law is lying to you. That lie might be engender by ignorance, by some soft headed concept of natural justice or as a step toward a greater objective—such as the decriminalization of drug/marijuana use or closing down abortion clinics. In any event it is a lie.
Second, while the idea of a jury being able to make up the law on the fly has a certain appeal to primitive and hypothetical democracy, it has nothing to do with a republican form of government in which the job of making the law is designated to the freely elected representatives of the people sitting as a legislature. That task is not delegated to a randomly selected member of the trial jury. There is only one reason to buy the jury nullification lie and that is to avoid the operation of a rule established by the legislature—in other words, to place a jurors private judgment above the judgment of the elected representatives of the whole community. It is an appeal to petty dictatorship exercising its self appropriated autocratic power on a very small stage. It is the minority of one dishonestly usurping the will of the majority of the whole community. It is the stuff of beer fueled 2:00AM arguments by undergraduate philosophy students at a third rate diploma mill.
Johnny Boy, your nonsense continues unabated. The simple answer to your point about the case law is this: Don’t cite or quote legal authorities as if they support your position when they do not. And when you do cite those authorities anyway, don’t come back later and claim that you were only citing them for a proposition nobody was disagreeing with.
Other than that, there’s only one point in your latest tome that’s worth bothering with:
Yes, that’s exactly afraid of. Or, more precisely, that’s merely one example out of any number that I’m afraid of if the jury gets to make up the law as it goes along. 'Cause believe it or not, there are many, many bigots, loonies, ignoramuses, and assholes of all sorts who make their way onto juries. Why the hell would I want any one of those people to decide whether it’s a crime to lynch a black man, drive 100 mph through a school zone, sell speed to 12-year-olds, or dump toxic waste in somebody else’s back yard? What you’re asking for is an express invitation for any member of a jury to make up any old law for any reason or no reason at all. Not to put too fine a point on it, but it’s a very stupid idea.
Well, in a less vociferous tone, suppose that a jury is convinced in good faith that the accused is morally innocent. But the duly passed law says that the act the person is accused of, and admits, carries a mandatory penalty of death.
Say the accusation is something like, say, the undefined “corruption of youth”. Now Socrates wanted to be martyred and admitted the crime and refused to flee town.
Or, let’s say the trial of Joshua Ben Joseph, accused of being King of the Jews without ever having claimed that title. Pretty clear that a moral jury would have avoided the instructions to find guilty and sentence to death.
Now I certainly agree that the lynching with acquittal by a bigot jury is a nullification problem, but one that has the practical solution of it also involving federal civil rights crimes, allowing for a retrial. Besides there were numerous instances of jury nullification for lynching that the law and order types did nothing about.
Another area of concern was draft dodging. Suppose the jury refused to convict. Really, so what.
Marijuana laws. Good for the jury nullifying.
It seems to me that the point to having a right to trial by jury is that the jury decides all of the facts, and that you don’t have some judge deciding to do mental gymnastics to reinterpret reality in order to get a result the judge likes, while ignoring a jury. I spent this afternoon with a friend in court watching his hit and run charges (parking lot, no damage) be arraigned. Others were there and busy pleading variously guilty or not guilty. Lots of cop lies about remembering everything from months ago (not the case I was watching), but a whole string of the crap in case after case. And the cops did it because they knew the judge would do anything to support them. The poor chumps weren’t entitled to a jury. All convicted. And the cops were so obviously lying too.
If the prosecution presents a case that is complete b.s., and the defendant presents nothing, the jury should be allowed to acquit. Prohibiting jury nullification doesn’t allow that for all practical purposes.
I’m old enough to remember when the people and not the government had rights. We’ve given up our rights to in the USA very easily. And we are no more secure from reefer fiends, liberals or the underclass than before.
Sparticus that has to be the least coherent post I have ever seen. I don’t know where to start, and I don’t really want to, but how about you point me to a modern criminal statute that carries a mandatory death penalty? You do know that federal courts use juries too? Where did you see all of these people ‘convicted’ on the same day they were being ‘arraigned?’ How do you know the cops were “so obviously lying?”
Rhummy, I think I was one of the first people to welcome you to the Boards a year ago. Allow me to reiterate that welcome, and second the implied inquiry of what the heck was that post all about?
Sparticus… if the cops were obviously lying, then it’s not jury nullification to aquit the accused. The legitimate function of the jury is to weigh the credibility of the witnesses and resolve conflicts in testimony, Deciding that the cops are lying, and the accused telling the truth, and voting not guilty for this reason is exactly what the judge will instruct a jury to do, and is exactly what a jury is supposed to do.
As to your other examples…
If there were a crime on the books as vague as “corruption of youth” was in Socrates’ day, I have little doubt it would not survive a constitutional challenge. But since the prosecution cannot appeal an aquittal, all that the vaunted jury nullification would do is deny the system the chance to correct the law. The law would remain on the books, enforced against some, perhaps, as a pretext for an arrest, until some jury follow their oaths instead of their desire to be tinpot legislators and someone was actually convicted and appealed his conviction to a court that could make precedential decisions.
There is a chance, just the barest chance, that some of the posters here do not understand the jury’s function is in a criminal case. As a general proposition the jury will sit around cooling its collective heels until it is dragged into the court room and seated. Then it will sit there and listen to the evidence and look at the exhibits and generally be bored out of its collective skull until the lawyers and the witnesses are exhausted. At that point one of two things will happen, either the jury will be instructed or the lawyers will present their final statements. Some judges instruct before argument, some after–some lawyers prefer one way, others prefer another way. In any event the jury will be instructed by the trial judge.
The trial judges instructions are given by reading, and reading and reading a series of deadly dull paragraphs of double jointed prose all of which has been vetted and argued over by the lawyers and conforms precisely to instructions given in ten thousand other similar cases and which have been repeatedly examined and approved by appellate courts. The instructions have been written and rewritten so as to carefully say everything three times and so as to have no life left in them at all. Jurors have been known to fall so soundly asleep during instructions that they actually fall out of their chair. I have seen it happen.
The point to all this, and there is a point, is that the jury is told that the judge’s instructions are the law for the case–but the jury is the sole finder of the facts. Thus the judge tells the jury what the rules are for their deliberations and voting, how to pick the foreperson, how to fill out the verdict forms, what the elements of the offense are, what offenses are before the jury, whether there are any lesser included offenses and what the elements of the lesser offenses are, what the burden of proof is, what the defenses are that have been raised in the trial and the elements of those defenses. Most importantly, the trial judge tells the jury that the jury is the sole and unlimited judge of the facts–that the jury may choose to believe everything a witness says or nothing a witness says or believe some of it and disbelieve some of it. That power to find the facts from the evidence is critical to the whole process.
The jury does not have to give a reason for its conclusion and cannot be required to give a reason. I have a jury hang itself because one juror did not like the principal police officer/witness’s wife and therefore chose not to accept anything the policeman said, including his date of birth. I have walked out of a trial rejoicing in my skill as an advocate only to find out that the jury completely misunderstood an expert witness and concluded that he gave testimony diametrically opposite of what the witness actually said. It is the jury’s right to do that and once the jury has made a finding of not guilty the case is over forever no matter how mistaken, foolish of stupid the jury’s evaluation of the evidence was. While it might raise some eyebrows, a jury can acquit in a lead pipe, double locked, bear trap case with no defense and nobody can do a damned thing about it. Lord knows that happened plenty of times during the Civil Rights struggles.
A jury doesn’t need to be empowered to find, for instance, the statute prohibiting growing marijuana should not be enforced, it merely has to conclude that the that the defendant was not growing marijuana --for good reason or bad reason, it doesn’t make any difference.
Well thank you. I’ve never “mosted” in anything before, but most incomprehensible is a good start.
Judges bad. Juries not so bad.
Judges politicians. Juries people like me.
Judges jaded. Juries take duties seriously.
There. Simple so even smart people can understand it.
Oh, and by the way, I do actually understand that there are currently no mandatory death penalties. Nice straw argument. But I would never trust any SDMB member to be a judge, far too many axes to grind. For the record, the argument against jury nullification (except for lynching incidents that I raised on the first page) are in my opinion, nothing more than more in a centuries long attempt to take away a right to jury trial. The actual instances of real jury nullification, where there are no factual inferences or credibility questions to be drawn, are probably very rare. As a basic matter of philosophy, I want my legislatures passing general laws, the executive branch carrying them out, and when there is a dispute about some fact in an individual case, then I want citizens applying the law to other citizens, not some butt munch political hack has been who dresses in a black night gown.
Sparticus: At best your comments are an argument that a criminal defendant ought to always demand a jury rather than consenting to a bench trial. Even then a hard and fast preference for a jury trial might be well founded in ignorance and perversion–there are any number of judges of whom it may be said that anyone who asks for a jury before Judge [Blank] just doesn’t understand what is going on. The argument in this thread is not whether a defendant should want to be tried by a judge or by a jury (which is probably made up of people who watch “Law And Order,” even the reruns), but whether a jury should be told that it has the right and power to reject the legislature’s determination that specified behavior deserves official approbation and sanction. Your comments leave me wondering if you are just jerking our chain or whether your comments reflect a less praise worthy condition of knowledge and experience.
You were the one who started talking about mandatory death penalties and the jury deciding there was “moral inncoence” not me. That would make it your straw man.
But you trust juries because they are “people like [you]” and you are an SDMB member, so you trust yourself to be on a jury, but wouldn’t trust yourself to be a judge?
The right to a jury trial has been nothing but extended over the last several centuries.
Well, I am glad you know what you want, “as a basic matter of philosophy.” Please see Spavined Gelding’s excellent post on how a jury actually works.
I never stated that the jury should be instructed to ignore a law on the books. I said that, and provided a 1969 judgement, that the jury could disregard a law if the jury thought is was unjust. To make it very clear: If the jury found the law to be unjust on their own they can, and should, find a person innocent.
The problem I have recently is that Judges have been ORDERING juries to convict.
I am not a Lawyer but it seems to me that if Judges force juries convict people based on laws the jury diagrees with the Judge is nothing more than a dictator.
I want to rob a bank. I shall need help, though, so I intend to pick 20 names at random from the phone book. I will then question them, and pick the 11 that I think will be most helpful to me. I will keep them in a room, and try to persuade them to help. If I can persuade them, we will all go rob the bank. Since us 12 peers will be in agreement that it should be ok to rob the bank, it won’t be illegal, will it? If it’s ok to reject the law after the fact, why not before?
WRT jury instructions, I got to hear a portion of Jack Weinstein’s jury instructions in a RICO case 2 years ago. WOW! It was slow, but it was hardly boring. It was remarkable to hear RICO law explained so clearly in such a short time.
JDM
Again, I have to call bullshit. That would be a gigantic violation of constitutional due process. I therefore ask you to either provide substantial evidence of the truth of your assertion or admit that you’re just making stuff up.
As we’ve repeated over and over, your “judgement” does NOT STAND FOR THE PROPOSITION THAT A JURY SHOULD AQUIT BASED ON THEIR COLLECTIVE FEELING THE LAW IS UNJUST!
A judge never orders a jury to convict. A judge properly orders a jury to follow the law. The jury is free to find whatever facts it believes are true, but is not free to disregard the law.
What’s the difference?
Let’s take marijuana and abortion, two relatively contentious issues. Let’s consider Bob and Ted. Bob has been arrested for possession of marijuana, and Ted for trespass, because he was standing on clinic property engaged in shouting at women who entered an abortion clinic.
Now Bob’s on trial. The cops testify that they found marijuana on Bob, which the lab confirmed was marijuana. Bob denies that he had it, and says the cops must have planted it on him.
If the jury does not believe the officers who testified that they found a green leafy substance on Bob, or the lab technician that testified that the green leafy substance was marijuana, they should vote to aquit. The judge will not order them to convict. He will say, however, that their personal feelings about whether possession of marijuana should be illegal or not is not a part of their role as jurors. They are only to weigh the evidence and testimony, and vote in accord with how the law applies to the facts that they determine.
Ted, meanwhile, is across the hall in trial. If the jury does not believe the clinic supervisor’s testimony that Ted came on clinic property, they should aquit. If they don’t believe Ted when he says he scrupulously observed the legal distance from the clinic while engaged in his protest, they should vote to convict. Even if one or more members of the jury feel that abortion is very wrong, and a protestor is justified in using any means necessary to stop it, those feelings have no role in their verdict. They must assess Ted’s credibility against that of the clinic’s witness, and decide who is telling the truth. Based on what facts they find to have occurred, they must render a verdict.
In Ted’s case, by the way, there are two ways a jury could act improperly. If they believed Ted, and disbelieved the clinic worker, they could still vote to convict, perhaps because they were disgusted at anti-abortion protestors. This would be very wrong.
It would also be wrong for an ardently pro-life jury to aquit, even though they believed he broke the law. In both cases, it’s not for the jury to determine the rightness of abortion or of abortion protests… just the fact of whether certain things happened.
Sleestak, if you have evidence to support your story of a judge ordering a jury to convict… let’s have it. When did this happen?
A trial judge has order a jury to return a particular verdict–maybe. In criminal cases the judge has the power to dismiss a charge at the close of the prosecution’s case if there has been a failure of evidence and the power to direct a verdict for the defendant at the close of all the evidence for the same reason-because there is no evidence of any sort on which the jury could convict. But a judge directing a verdict of conviction–I want to see it! Let’s have chapter and verse on this one.
Of course, Spavined Gelding. And in civil matters, a judge may direct a verdict for either side, or enter a JNOV. But the one thing a judge cannot do is order a jury to return a criminal verdict of guilty.
Let’s see what Sleestak offers in support of his contention.
Bricker, I don’t think that you and I are in disagreement. I’m just trying to give Sleestack the benefit of the possibility that he is confused about directed verdicts. I would rather hope that he is just addled than conclude, as the post seems, that our friend is just making it up as he goes or relying on plot points from private vengeance action movies. Chances are he is just lying but let’s see what he comes up with. I can’t imagine that there is any thing there.
It’s all a bunch of bs anyways. Judges and lawyers are all on the same side, they want to keep there highpaid jobs so they create a system of secret practices and rules that you only understand if your a member of the club. This is hearsay but that isn’t, this is evidence but that isn’t, it all makes no sense to an ordinary person and when the justice system is so complex that an ordinary person on the street can’t understand it something is seriously wrong.
And every day some cop leaves out three words when reading some terrible criminal his rights and he gets off while people with a littl ebit of pot go to jail for years.
That is why everyone is screaming about jury nullification, because the system doesn’t work as it is.
CB, I assure you that in nearly every court case, the lawyers are not all on the same side.
Merely because a system is complex, or something you cannot immediately grasp, is not to say that it’s a conspiracy amongst the people that do grasp it. Yes, I admit it: the rule on hearsay and the exceptions to it are difficult. The rules of evidence are difficult.
But they all exist for some very basic reasons of logic and constitutional guarantees.
Let’s take hearsay as an example. Hearsay is testimony about a statement that wasn’t made in court, intended to prove the truth of whatever the statement said. Why can’t it be used as evidence?
Because the Constitution guarantees you the right to confront your accusers. The people that wrote the Constitution had experienced secret trials, with accusations made by people that never came forward to make their statements face-to-face – and they wanted no part of that.
So you can’t be accused, or implicated, by someone who isn’t in court. If someone accuses you of something, a third person can’t relay that accusation to the courtroom. It has to be the original speaker. This means that the jury gets to hear and see the witness up close… listen to him talk, and decide if he’s lying. They can’t depend on someone else relaying the accusation to them, because they’d lose the chance to make those observations.
But there are some circumstances in which it only makes sense to admit what would otherwise be hearsay. The “dying declaration” is a classic: some who is at or near death, and gasps out the name of the person that killed him, can have that gasp repeated in court, even though the speaker ultimately is dead by the time trial rolls around. Why? Because the theory was that a person so near death is very likely to be telling the truth: he has, after all, a strong motive to see his real killer punished, and to not die with a lie on his lips. It’s not a certainty, of course, but it’s enough of a guarantee of trustworthiness that the testimony would be permitted.
There are many other exceptions to the hearsay rule, but they are all rooted in the same basic idea: that in the particular circumstance, there are sufficient indicia of reliability to overcome the deficit of not having the speaker in front of the jury to hear the words spoken.
All of the rules of evidence, arcane as they may seem, have reasons such as the above. Yes, it’s a complicated field. But it’s neither arbitrary nor a “secret club”.