So the lawyer cannot urge the trier of fact to do something the trier of fact has every right to do? Makes sense. Back when this country was founded, juries decided the law and the facts. Citizens decided every dispute where one of the parties wanted it. Now disputes are decided by judges, except for the facts. No arguing that a law is unjust.
My impression has always been that it’s not so much legal as it is a logical consequence of the prohibition against double jeopardy. Since the prosecution cannot appeal a not-guilty verdict and jurors are not required to explain their reasoning, there’s nothing to prevent them from saying “Screw the law. I like Skaldimus, and he was probably justified in beating his brother to death with that tire iron.”
I’m not sure you want to make court rooms the place to debate whether a law is right or wrong. The defense should argue the facts of the case and leave politics out of it.
As long as a jury knows it can nullify I think it is up to them to decide on their own if such a course is justified.
The problem with this is that juries aren’t told what possible penalties are when they are deliberating. They would probably look at the facts of your case, and say, “Well, the guy really should have been more careful” and find him guilty thinking he’ll have to pay a hundred dollar fine or something.
Only when they read the paper the next day will they find out he got five years.
Right, exactly what I have heard. The Jury itself can Nullify it it wants to, but can the Defense suggest it is another can of fish.
While I hesitate to set my layman’s ignorance against Norther Piper’s demonstrated legal expertise, I should point out that in both the 1973 and 1988 Morgentaler abortion cases (the 1993 case was a dispute over whether he could open a clinic) the jury did initially use jury nullification to find him not guilty where he was clearly violating the law (and openly admitted it). While the Crown was able to appeal (and eventually lost both cases anyway), in at least the 1988 case I don’t believe the appeal was based on the verdict so much as the legality of arguments used by the defence lawyers which openly raised the possibility of nullification to the jury.
IIRC from reading about the cases at the time, there was considerable emphasis in the news on the juries in both cases using the Not Guilty verdict to express their disagreement with the abortion laws.
I believe that the Crown, partially as a consequence of the 1973 case, can no longer appeal a not-guilty verdict in Canada. Is this correct, and if so what was changed to prohibit this?
Ahh…well that sucks.
I am sure a clever attorney could work it in unless they are explicitly barred from making mention of the penalties to the jury. Something in their closing argument like:
“Ladies and gentleman of the jury. Make no mistake that this is a serious issue we have before us. It is vital you understand the gravity of the decision that faces you. This is a felony that, if convicted, will follow my client for the rest of his life and deprive him of, at a minimum, five years of his life in jail and maybe as much as 25 years. Blah, blah, blah…”
Or something to that effect anyway (reading it I am thinking it is a good thing I do not write closing statements ;)).
The only time I ever entered jury selection was for a traffic court violation in Houston, TX, and the defense lawyer specifically told us that if we disagreed with the law he was being charged with, whether we thought he was guilty of violating it or not, we could and should vote not guilty. He then asked people if they understood that or agreed with that, and struck people who disagreed.
I did not get selected as they filled the jury and alternates before they got to me, but I was shocked when I later heard that people in other jury selections were struck because they knew about this.
I suspect that the temptation to nullify is one of the reasons why a jury is typically not informed of the likely sentencing range.
About two years ago, I was called for Jury Duty. My mom, being the hardcore take-my-gun-from-my-dead-fingers Libertarian, gave me the rundown on the Fully Informed Juror’s Association. I was called to be one of the 6 extra jurors (I think I was #13 or #14). I was only 22 at the time, and had never done jury duty before, so I waited until a short recess was called and I met with the judge, D.A., and prosecutor in the back hall. I stated that I had read up on my rights as a juror, and I forewarned them that I would have to make my juror’s decision on the law as well as the person charged. The D.A. smiled, and the prosecutor got really angry at that. The judge informed me that he didn’t know what I was talking about. Since I really didn’t want to do jury duty, I just stated in a clear way that “All I’m saying is that if it is fully legal for me to judge the validity of the law, as well as the guilt of the charged party, I feel that I have a RESPONSIBILITY to do that”.
Needless to say, after recess, they sent me home. =D
I find the views of Chief Justice Dickson (post 15) to be absolutely reprehensible. He demonstrates the incredible hypocrisy that is rife in the current legal system.
The last time I was called for jury duty, I listened while the judge said, among others things, that as a juror, we are the most important people in the legal process. Then we all got this list of questions that had been agreed upon by the judge and both attorneys that we had to answer. One was along the lines of, “Do you agree to follow the judge’s instructions, even if those instructions go against your personal conscience?” I answered honestly, “No”, I got lectured by the judge and dismissed.
So the jurors are the most important people in the process – surely they unquestionably make the single most important decision – and yet they are required to put their own conscience aside when making that decision.
What the hell good is “the common sense of the community” if the jury is not allowed to actually use it? I would hope that most people’s common sense is inextricably tied to their conscience. And that while the jury members may not be expert in the law, they are, by virtue of that “common sense” that this judge holds in such high regard, experts in what’s right and just (yes, I know the “this is not a court of justice, it’s a court of law” quote; that’s another part of the problem).
What ever happened to the idea of a jury of one’s peers? Now it’s instead a jury of sheep that will just believe what they’re told.
Well, the theory is that the community expresses its views on the law, which is meant to be generally applicable, via its elected representatives. It expresses its views on the facts, which are particular to one case, via the jury.
When asking if you are willing to follow the court’s instructions, the judge is essentially asking whether you are willing to obey the law that your community has enacted. Your conscience may not permit you to do so, and that’s your right. But your community has opted to permit the court to exclude you from that part of its legal process in that event.
It may be helpful to remember that the jury nullification can serve bad purposes as well as good ones. Historically, for instance, it was reputed to be a common occurrence for racist all-white juries to use nullification to acquit white defendants accused of crimes against minorities.
I just wanted to highlight this. Jury nullification is a two edged sword. It all depends on who’s in the jury and who’s in the dock.
It was also used by nothern juries to prevent masters from reclaim their fugitive slaves.
You are right. A court room is no place for litigants to argue whether laws are right or wrong. And certainly not around a committee of twelve impartial decidererers plucked by lot from the citizenry. My mistake. WTF could I have been thinking? Laws should be argued near curbsides by filthy homeless people for no apparent reason.
I am with Roadfood on this. I certainly hope if I was on a jury I would have the courage to do what I felt was right and not what a figure of authority told me to do.
I have heard of jurors being removed because they fail to discuss or negotiate correctly. So the judge removes them and replaces them with an alternate.
If you had a few jurors trying to nullify then couldn’t they be removed if reported to the judge that they weren’t using good faith, or something like that?
We would be in a very sad state of affairs if a juror could be removed for not being a “team player”.
I have heard tale of an attorney in a recent trial who slipped it in while examining a witness on the stand. Something to the effect of, “Mr. Smith, are you aware that if you hadn’t received immunity, you would have faced the same five years in prison that Mr. White [the defendant] faces now?”
The attorney was mildly admonished by the judge later, outside of the presence of the jury. But he’d already accomplished what he wanted to accomplish.
while jury nullification does happen here, e.g. R. v Ponting, it’s extremely unusual.
We can have 10-2 majority verdicts here, which disposes of the stubborn juror who won’t change his mind.
In his recent [1999] report on the reform of the criminal justice system http://www.criminal-courts-review.org.uk/ Lord Justice Auld recommended “that it should be declared, by statute law if necessary, that the jury has no power to acquit in defiance of law and of the facts”. No action has taken place on this, so far.