Jury nullification

[Steve_MB]

@Diceman

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.

Jury nullification is considerably older than that. See, for example, the John Peter Zenger case in which the jury refused to convict Zenger of libel because they were convinced that his assertions were true (the truth of the statement was not a legal defense at the time – in fact, the Zenger case seems to have been where the notion that truth should be a defense against a charge of libel first gained traction).

[Gfactor]

Here are some good resources on the history of jury nullification.

http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
http://www.www.isil.org/resources/lit/history-jury-null.html
Conrad, Clay, Jury Nullification: The Evolution of the Doctrine: http://www.amazon.com/gp/product/0890897026/104-5639370-1444712?v=glance&n=283155

[Polycarp]

@Campion

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.

Doesn’t mean I have to like it.

Quick observation on this topic: I’m not sure what oaths juries swear in various places, but I presume it’s to judge if the accused is guilty of the crime charged. Nearly all penal statutes that I’ve seen have statements in them that require a mens rea or at least a “depraved indifference” – the charge alleges that the defendant did criminally, feloniously … [commit the crime charged at the time and place stated]. It would, therefore, not be contrary to their oaths to return a verdict of not guilty on the basis that, while the defendant may indeed have committed some act, they do not consider that he did it with criminal intent. There is such a thing as doing justice.

[Gfactor]

@Polycarp

Quick observation on this topic: I’m not sure what oaths juries swear in various places, but I presume it’s to judge if the accused is guilty of the crime charged.

For a while, during the second half of the seventeenth century, English jurors were fined for voting to acquit based on similar logic:

By 1664 English juries were routinely being fined for acquitting defendants. Such was the case in the 1670 political trial of William Penn, who was charged with preaching Quakerism to an unlawful assembly. Four of the twelve jurors voted to acquit – and continued to acquit even after being imprisoned and starved for four days. Under such duress, most jurors paid the fines. However, one juror, Edward Bushell, refused to pay and brought his case before the Court of Common Pleas. As a result, Chief Justice Vaughan issued an historically-important ruling: that jurors could not be punished for their verdicts. Bushell’s Case (1670) was one of the most important developments in the common-law history of the jury.

http://www.www.isil.org/resources/lit/history-jury-null.html

Bushell’s Case

[Campion]

@Polycarp

Quick observation on this topic: I’m not sure what oaths juries swear in various places, but I presume it’s to judge if the accused is guilty of the crime charged. Nearly all penal statutes that I’ve seen have statements in them that require a mens rea or at least a “depraved indifference” – the charge alleges that the defendant did criminally, feloniously … [commit the crime charged at the time and place stated]. It would, therefore, not be contrary to their oaths to return a verdict of not guilty on the basis that, while the defendant may indeed have committed some act, they do not consider that he did it with criminal intent. There is such a thing as doing justice.

First off, my bias is simply this: I hate jury nullification with a passion. It is the one topic pretty much guaranteed to make me foam at the mouth, particularly when it is advocated as an important “right” held by a modern jury in the US. Jury nullification was invented in a time when the law was very different; there was no right to pre-trial discovery, many times people couldn’t have lawyers, and there was no ability to appeal. So to claim that jury nullification is “needed” today, when our system is so different from that under which Zenger was tried, for instance, is disingenuous to me.

Now, stepping off my soapbox, let me say that I understand your point, but I think you’re wrong.

Here is a link to California’s Criminal Jury Instructions info page (from whence you can click on a second link that opens a massive pdf of the jury instruction).

Many of those jury instructions do require that a person commit the act “willfully and maliciously.” Those terms are defined (see, e.g., arson, aggravated mayhem):

Someone commits an act willfully when he or she does it willingly or on purpose.

Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to defraud, annoy, or injure someone else.

In other words, those terms mean that a person must simply act intentionally. If the jury has found that the defendant acted intentionally (i.e., not mistakenly), that’s more than half the battle.

I understand your point to be that a jury may not be in violation of their oath, depending on the language of the oath and the language of the jury instructions. While I admire the lawyerly-ness of such a position, I think ultimately it must fail when you consider the ramifications of the position. Jury nullification might permit “justice” to be done in an isolated instance, but we cannot and should not rely on it as a method to keep our system fair.

Gfactor, m’dear, there’s something different about you today. Can’t quite put my finger on it…

[Steve_MB]

@Campion

First off, my bias is simply this: I hate jury nullification with a passion. It is the one topic pretty much guaranteed to make me foam at the mouth, particularly when it is advocated as an important “right” held by a modern jury in the US.

It’s useful to recognize an emotional bias. That prevents one from mistaking views that flow therefrom from those that arise out of contemplation of the facts.

Jury nullification was invented in a time when the law was very different; there was no right to pre-trial discovery, many times people couldn’t have lawyers, and there was no ability to appeal. So to claim that jury nullification is “needed” today, when our system is so different from that under which Zenger was tried, for instance, is disingenuous to me.

I find this argument equivalent to pointing out that the writers of the First and Second Amendments did not have the Internet or the machinegun – true, but irrelevant.

[BrainGlutton]

@Bricker

I should point out that the classic saying is: “The jry has the power to nullify, but not the right.”

Cite?

[BrainGlutton]

@Steve MB

Jury nullification is considerably older than that. See, for example, the John Peter Zenger case in which the jury refused to convict Zenger of libel because they were convinced that his assertions were true (the truth of the statement was not a legal defense at the time – in fact, the Zenger case seems to have been where the notion that truth should be a defense against a charge of libel first gained traction).

And in England, it goes back at least to 1554. http://en.wikipedia.org/wiki/Jury_nullification#Common_Law_Precedent

[Gfactor]

@BrainGlutton

@Bricker

I should point out that the classic saying is: “The jry has the power to nullify, but not the right.”

Cite?

at most, the power to acquit a guilty man, not the right, and should not be told that it may ignore or nullify the law. See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 S.E.2d 642, 647 (Ga. 1990).

http://www.caught.net/juror.htm

[Gfactor]

Intended to quote the whole paragraph:

There is a pervasive myth that three states supposedly allow jury nullification instructions: Georgia, Maryland, and Indiana. See State v. Morgan Stanley & Co., 194 W.V. 163, 175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 704 n.147 (1995). Some lists also include Oregon. This is presumably because those states have laws or constitutional provisions suggesting that criminal jurors are judges of the law and the facts. But the myth is false. Despite their differing constitutions, all four states have held that a jury has, at most, the power to acquit a guilty man, not the right, and should not be told that it may ignore or nullify the law. See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 S.E.2d 642, 647 (Ga. 1990).

http://www.caught.net/juror.htm

and

Juries clearly have the power to nullify; whether they also have the right to nullify is another question.

http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html

@Campion

Gfactor, m’dear, there’s something different about you today. Can’t quite put my finger on it…

Well, I *did * get a haircut. . .

[Campion]

@Gfactor

Well, I *did * get a haircut. . .

Maybe that’s it.

Boy, do I feel like I’ve been out of touch!

[Capt.Ridley_s_Shooting_Party]

How would a jury go about nullifying a law, though? Would they return to read their verdict and simply say “we wish to nullify the law” or do they simply return a “not guilty” verdict?

How is the process of nullification different between the US and UK (England)?

[Diceman]

@Dominic Mulligan

How would a jury go about nullifying a law, though? Would they return to read their verdict and simply say “we wish to nullify the law” or do they simply return a “not guilty” verdict?

They’d just acquit the guy. Someone might say something later, but I’m pretty sure that the judge can’t ask the jurors to explain their verdict.

[BrainGlutton]

@Dominic Mulligan

How would a jury go about nullifying a law, though? Would they return to read their verdict and simply say “we wish to nullify the law” or do they simply return a “not guilty” verdict?

They can’t actually “nullify a law”; they can only, by returning a not guilty verdict, nullify its application in this particular case. Their decision has no precedential effect. Just because this jury refuses to convict X for dealing marijuana, doesn’t mean the state’s attorney can’t go on and indict Y for the same offense.

One thing I’ve never seen addressed – does jury nullification have any application to civil suits?

[Steve_MB]

@BrainGlutton

One thing I’ve never seen addressed – does jury nullification have any application to civil suits?

While jurors have the same prerogatives as they do in criminal trials, the fact that both sides can appeal greatly reduces the impact of a single outlier jury decision.

(Also, I seem to recall that, in at least some cases, non-unanimous verdicts are allowed in civil cases. I could be wrong on that point, though.)

[A.R.Cane]

I think the big hole in the argument, against jury nullification, is the fact that many successful politicians have gotten their careers started by being hard nosed prosecutors. The fact that a prosecutor stands to personally gain by sending: an 18 year old to prison for thirty years in a drug possesion case, or a 60 year old man to 20 years for providing his cancer ridden wife w/ the means to commit suicide, among other misguided prosecutions, is a serious flaw in our system of justice.
Another thing that seems to need attention, is the fact that a jury often has no idea of the sentencing guidlines. They may believe that a young drug offender needs to go to jail, if for no other reason than to get rehabilitation, only to find out after the verdict that the young person is going to spend much of their adult life in prison. Often there is a lesser charge option, but the jury wants to make sure the kid gets help, so the avoid that lesser charge.
Sure, jury nullification has been used for some dispicable reasons, but it’s also been used for some very humanitarian reasons and to reject it, out of hand, is to ignore some obvious faults in the system.

[Gfactor]

@BrainGlutton

One thing I’ve never seen addressed – does jury nullification have any application to civil suits?

Yes and no. Technically, no, because there is no double jeopardy rule. Either party can appeal a verdict. But yes, because courts are reluctant to question a jury’s credibility decision. This squeamishness is also part of the way nullification works in criminal cases. The plaintiff can put on 50 witnesses while the defendant simply cross-examines them. The jury is still entitled to disbelieve the witnesses and find for the party privileged by the burden of proof. In other words, the plaintiff has the burden of convincing the jury that it is more likely than not each of the necessary elements of his case is true. If the jury is not persuaded, the plaintiff loses.

The situation is reversed for affirmative defenses (those which the defendant must plead and prove).

It is often difficult to separate the jury’s adverse credibility determinations from a distaste for the liability rules it has been asked to apply.

But because there is no double jeopardy rule, the judge can order a new trial. http://laws.lp.findlaw.com/getcase/3rd/case/003297&exact=1 (affirming order of new trial where verdict was against the weight of the evidence). Some states also permit the judge to increase (additur) or decrease (remittitur) the amount of the verdict, conditionally. If the party opposing the modification accepts it, the case is over, if not, the condition comes into play, and the judge orders a new trial. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ut&vol=supopin&invol=dalton.

Another mechanism for managing the risk is the special verdict or general verdict with interrogatories:

@Federal Rule 49

Rule 49. Special Verdicts and Interrogatories
(a) Special Verdicts.

The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
(b) General Verdict Accompanied by Answer to Interrogatories.

The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to Rule 58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.

Using one of these forms limits the possibility of a compromise verdict or nullification. The limitation on each of these devices is that the decision to grant a new trial or to use a special verdict form is within the trial court’s discretion. If the judge decides to deny a request, the denial is reviewed for abuse of discretion.

On the other hand, if you wanted to prove that the jurors decided to apply different law to the facts to find for one party or the other, in many jurisdictions, that would be tough:

@Federal Rule of Evidence 606(b)

(b) Inquiry into validity of verdict or indictment.

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

[Campion]

@BrainGlutton

One thing I’ve never seen addressed – does jury nullification have any application to civil suits?

Yes, it could. A jury sits as the finder of facts; they listen to the evidence and determine what the facts are in the case. The judge tells them what the law is. The jury then is supposed to apply the law to those facts and render their verdict. If a jury is determined to nullify, they simply will not do that part of their job.

In a civil suit, however, after verdict is rendered, the losing party can move for JNOV, judgment notwithstanding the verdict. The standard is pretty high for a judge to render JNOV; viewing the facts in the light most favorable to the prevailing party, no reasonable jury could have found, as a matter of law, for the prevailing party.

So JNOV could blunt the damage done by a nullifying jury in a civil suit.

@A.R. Cane

Sure, jury nullification has been used for some dispicable reasons, but it’s also been used for some very humanitarian reasons and to reject it, out of hand, is to ignore some obvious faults in the system.

And the pro jury nullification argument ignores different obvious faults. Jury nullification permits bad laws to stay on the books longer, and permits more, not fewer, people to be convicted under those laws, because by nullifying, there’s no way to review a bad law. As I said in a previous post, our system has so many more safeguards built into it than it did 300 years ago, and only a fool could argue that those safeguards are irrelevant. We have a Constitution now, for one thing; for another, we’ve amended that constitution to add additional rights, and the courts have interpreted those rights in such a way as to protect individuals. I don’t think jury nullification is a necessary part of the system.

[A.R.Cane]

@Campion

Yes, it could. A jury sits as the finder of facts; they listen to the evidence and determine what the facts are in the case. The judge tells them what the law is. The jury then is supposed to apply the law to those facts and render their verdict. If a jury is determined to nullify, they simply will not do that part of their job.

In a civil suit, however, after verdict is rendered, the losing party can move for JNOV, judgment notwithstanding the verdict. The standard is pretty high for a judge to render JNOV; viewing the facts in the light most favorable to the prevailing party, no reasonable jury could have found, as a matter of law, for the prevailing party.

So JNOV could blunt the damage done by a nullifying jury in a civil suit.
And the pro jury nullification argument ignores different obvious faults. Jury nullification permits bad laws to stay on the books longer, and permits more, not fewer, people to be convicted under those laws, because by nullifying, there’s no way to review a bad law. As I said in a previous post, our system has so many more safeguards built into it than it did 300 years ago, and only a fool could argue that those safeguards are irrelevant. We have a Constitution now, for one thing; for another, we’ve amended that constitution to add additional rights, and the courts have interpreted those rights in such a way as to protect individuals. I don’t think jury nullification is a necessary part of the system.

Seems to me that jury nullification is more likely to get public attention focused on
bad laws and overzealous prosecutors than finding people guilty.
If the “safeguards” are so effective, why is being a prosecutor still a common
springboard for launching a political career? The prosecutors decisions, on whether
to charge people and what charges are to be levied, should be based on what’s best
for society, economically and ethically, not on how it can benefit a personal political
career, but there’s little doubt in my mind that personal ambitions are the first
consideration.
What about my point of withholding sentencing guidelines from the jury. A jury that
might believe they are sending a person to prison for a few years, only to find that it,
for all intents and purposes, is a life sentence. Where are the “safeguards” in that?