Legal Theory -- Jury Nullification

Great Debates
21

This thread really isn’t about euthanasia but I suppose if a person is vehemently opposed to euthanasia then they may find Murder-2 a very appropriate charge.

Personally I don’t, at least not as presented in the hypothetical in the OP. For the sake of argument take it as given that the man very much loved his wife, he is a good and honest person, has never committed any crime in his life and did what he did out of love. The wife was clearly on her deathbed and was not expected to survive more than another few days. I realize being close to death does not excuse murder (e.g. if I jumped through the window and shot her I would be guilty of murder regardless of how close to death she was already). Nevertheless I personally feel these are all strong mitigating factors in the husband’s defense. A charge of Murder-2 seemed excessive in this case. Maybe he should indeed be punished with something…just not life in prison.

22

:wink: No, no evil intentions, just a mistake.

Perhaps if our legal system wasnt a self replicating system increasingly divorced from those for whom it was created to serve, these types of misunderstandings would occur less frequently.:wink:

To the other poster who asked about the questions we were asked pre-trial, yes I was asked something along the lines of if I could vote merely on the evidence and not on my agreement with the law. My answer was no, I could not guarentee that my morality would not influence my opinion when a particular law itself is based on nothing but morality. I was then asked if I had understood my instructions and didnt I realize that I was bound to consider only the facts. I answered that if they could promise me that the law in question was enacted solely on facts of threats to our common self interest rather than one segment of societies view of moralistic right and wrong, then yes.

I didnt want to be on the jury, trust me. I certainly didnt lie to get on it. I was blatantly honest. I think it had more to do with the fact that the pool was almost empty and they still had seats to fill and the assistant DA maybe just figured ‘we’ll give you this one lets just get on with it’. There was a particular atmosphere of resentment (in my opinion) in having to waste time or whatever for a case that usually never goes to trial. But the guy demanded a jury trial, so hey.

Ive read the other thread someone posted a link to. I think some people look at the law as some kind of religous ideal or something. There is the theory of how its supposed to work, and there is the reality of the way it does work. One might say that the theory is an ideal that we should all aspire to uphold, but I would answer that any system that is dependant upon those within it all sharing a relatively uniform moral ideal is a system that is built to fail.

It would be nice if the theory of our judges being impartial were true, and Im sure many try to be; but the fact of the matter is that the legislature that enacts laws is responsible also (in most places) for deciding the amount of pay judges receive, and the amount of the budgets of public defenders offices as well as the budgets of the judicial system itself. And of course when it comes to a question between ones perceived moral responsibility and ones material income/wellbeing, most times one is going to choose ones material well being. There is nothing inherently wrong with that, its natural; but acting as if it doesnt or isnt going to happen is silly.

23

[Lawyer’s nitpick with Voodoochile: A “jurist” is a judge or a legal scholar. A “juror” is a member of a jury.]

There’s an organization called the Fully Informed Jury Association. They’re pusing for a constitutional amendment to require the judge, in every jury trial, to INSTRUCT the jury that they have the right and power to judge the law as well as the facts. As pointed out above, no one can deny that juries have an effective power of “nullification,” at least under circumstances where their motives cannot be inquired into, which covers most cases. But FIJA’s position is that the possibility of jury nullification is not just a practically inevitable result of the jury system, it is a right, a fundamental part of the system under common law. I’m a lawyer but I haven’t looked closely at their supporting legal research, so I reserve judgment on that point. Check out FIJA’s website at www.fija.org and it will probably answer most questions you have about the idea. Some it doesn’t answer.

So far as I can tell, the only purpose of a “fully informed jury” is to make it harder to convict criminal defendants in cases where either the defendant’s case is particularly sympathetic, or where the law allegedly violated is a very controversial one opposed by a significant minority of the people, e.g., the laws against marijuana possession (or, in the South in the 1950s, the laws that made killing a black person a crime to rank with killing a white person). In the latter case, what the FIJA activists want is not to give the juries “veto” power over the law – a president or governor can veto legislation and it never becomes legislation, but if a jury acquits a marijuana dealer, marijuana is still illegal and the same situation can come up again and again. What they want is to give ANY MEMBER of a randomly selected panel of 6 or 12 citizens the authority to block the application of any particular law in any specific instance. As noted, that does not stop the D.A. or State Attorney from seeking to a convict another defendant under the same law in a different instance, but it does give him or her reason to stop and think; who wants to waste all that effort building a case if there’s a good chance the jury will acquit despite the law? Obviously, a Fully Informed Jury Amendment (or even a state of affairs where the idea is so widely known that every potential juror “knows” he or she has the nullification power) would make it harder for the state to enforce laws which were duly enacted through the constitutional political process but which are fiercely opposed by a significant minority of the population – a description which covers a lot of laws, and always has. Equally obviously, this is at bottom a libertarian position – the idea that majority support is not enough; a law that restricts personal freedom of action in any way should be in force only if practically the whole community supports it. That’s an idea that would require a whole new thread to discuss in the depth it merits. Even if defensible, it definitely is NOT one of the assumptions on which our political and legal systems are based. (There’s a libertarian slogan: “Democracy is four wolves and a sheep voting on what to have for dinner.” Clever but dishonest. In real life the sheep outnumber the wolves and democracy is the only defense they’ve got. But I digress.)

But, fine, FIJA would make it harder for state attorneys to win convictions under controversial laws. (And in sympathetic cases.) That’s clear enough, but it raises some questions which I haven’t seen addressed anywhere in their literature:

  1. Are there any circumstances where it could work the other way? Can we conceive of criminal cases where an “uninformed” jury would vote to acquit but a “fully informed” jury would vote to convict?

  2. The criminal courts are only half the justice system. Does jury nullification have any application in civil lawsuits? If so, how would it apply? Would it be more plaintiff-friendly or defendant-friendly in its operation?

  3. As pointed out above, potential jurors, before they are seated on a jury, are always examined by both prosecution and defense counsel (or plaintiffs’ and defense counsel) in that particular case, a process called “voir dire.” Under the rules of voir dire, counsel are allowed to ask the potential juror any questions they think are relevant to the juror’s predisposition in this case (the other side can always object). They might ask about your work history, educational level, marital status, family life, political views – anything that sheds light on what kind of person you are, and on where your sympathies might lie in this case. Each attorney gets a limited number of “peremptory challenges,” meaning the right to dismiss a candidate without explaining why. Each attorney also gets an unlimited number of “for cause” challenges, meaning he or she can make an argument as to why this person cannot be an unbiased juror in this case, and if the judge agrees, the potential juror is dismissed. Now, obviously, if we adopt the Fully Informed Jury Amendment without changing the voir dire system, the amendment wouldn’t mean much; the state attorney would simply have to ask every potential juror his or her opinion regarding the law or laws in question, and dismiss-for-cause all who do not support that law. So, is the FIJ Amendment really a complete reform, if it is enacted without including provisions that would eliminate the voir dire system, or fundamentally change its rules?

If anyone is a FIJA member, I’d like to hear your thoughts on these points.

24

IANAL nor a FIJAM, but I provide my 2 cents anyway.

I just don’t see this happening. There are always some nutcases out there who may think, “Jury nullification? That’s stupid. I’ll show 'em by voting this innocent guy guilty.” But you would need every member of the jury to be such a nutcase to convict.

Not too sure about this one, but I assume it would be more defendant-friendly.

I think it would depend on how a jury nullification amendment were worded. If it were worded to allow nullification where you disagree with a law in general, I don’t think you could be dismissed for cause. If it were worded to allow nullification only combined with the facts of a particular case, I would think only those who would never vote for conviction could be dismissed for cause.

25

I am not a legal scholar but I have a hard time in believing in a system of justice that is wholly inflexible. It seems to me that somewhere, somehow there needs to be a check on the system that allows for unusual circumstances to be considered as mitigating factors. Certainly that exists today but it would seem that the avenues for this are being narrowed. Juries cannot be informed of their ability to nullify, courts are restricted in sentencing by minimum sentencing laws and so on.

To some extent this is understandable as the possibility for abuse is very real (e.g. white people refusing to convict a white man for killing a black man regardless of the evidence). I guess one must decide which side of the equation they want the system to err on. Potentially letting guilty people go free (or get lighter sentences) or protecting the innocent from being punished wrongly. Not an easy choice…I’d be furious if some scumbag got off for molesting and killing my daughter (if I had one) but conversely I would be furious if I was sent to jail for life for committing a ‘crime’ that most reasonable people would not consider a crime but the law said it was.

Let me pose a new hypothetical for people to chew on in a similar vein to the one posed in the OP. Say you and three buddies are out hiking in the mountains. One of your friends falls and severly injures himself. You are a two day hike from any help and have no radio or other means of communication to call for outside help. One of the other hikers is a doctor and it is her professional opinion that the injured hiker is doomed. Despite everything she could do she is certain his injuries are lethal…it is a matter of a few hours at most before the injured hiker dies and she doubts that even were medical help immediately available that he would survive. The injured hiker is in extreme agony but is conscious and lucid. After having the whole deal spelled out he asks that someone put him out of his misery. His other option being to sit there in agony for several hours till he inevitably succumbs to his wounds. The remaining hikers draw straws and it falls to you to kill your friend. You are in no way happy about this but let’s assume you bring yourself to do it and shoot your friend and kill him.

This story comes out upon your return to civilisation and for whatever reason the DA gets it in his head to prosecute you for Murder (a life sentence if convicted) and the remaining hikers as Accessories to Murder. The law, as written, is clear on your guilt. You did kill another human being, admit to it and planned it (not recklessness on your part so no Manslaughter…a lesser sentence).

If you were convicted and sent to jail for life would anyone here say that justice was served? Some may accuse the hypothetical of being too far fetched but most of us should know by now that life can be stranger than fiction and that odd cases for the courts to decide can and do happen.

26

Hear! Hear! And requiring Mirandizing ain’t just about informing an individual so that he is able to exercise his rights. After all, guilty people have gotten off due to failure to be adequately Mirandized.

Therefore, outlaw BOTH jury nullification and Mirandization. Indeed, outlaw juries altogether! Put all legal decisions in the hands of professional jurists, just like in the englightened court system of the People’s Republic of China!

27

Hey, I’m just saying to look at this issue with eyes wide open. People who favor nullification usually paint it as the noble little guy standing up to the evil, fascist government. We ought to remember that it can also represent the bigoted, racist asshat guy standing up to the noble and just government. The knife cuts both ways, dude.

28

I have never sat on a jury, but the one time I went through the jury selection process (in a county court), we were specifically instructed by the judge that we had no right to find the defendant not guilty because we disagreed with the law. I can’t remember the exact language the judge used, but she gave the distinct impression that nullification was illegal. (Note that I’m not arguing that this judge was right and everyone else is wrong; I just wanted to mention the incident.)

29

As Minty Green pointed out above, we have been through this exercise before.

The question in the end is just where these twelve or eight men or women good and true go to find out what the law is when confronted with a case, criminal or civil. The State of Indiana has, I think, a constitutional provision that says that the jury is the finder of the facts and the law, both. Indiana courts say that while the jurors are empowered to declare what the law is, their only why to find out what the law is to look to the judge’s instructions. In most if not all states and in the Federal system a jury may be reversed for making a finding of fact which is not supported by the evidence of the facts. In Indiana it would appear that a jury which is the finder of both the facts and the law could also be reversed for making a finding not supported by the evidence of what the law is as presented to them in the judge’s instructions.

Do the jurors just make the applicable law up on the spot? Is the law different in each case depending on the particular prejudices and philosophies of the jurors, or of a big enough minority of jurors to hang the jury? If the jury in my case decides, for instance, that it should not be unlawful for me to grow pot or to misrepresent the actual mileage on the car I sold, does the decision by my jury justify you in growing pot or misrepresenting mileage? Is nullification by one fully informed jury binding on other juries? Is each trial a little universe unto itself and each juror his own little god for the moment, answerable and responsible to no one but himself? If so, what happens to ideas like the equal protection of the law? If so, why do we bother to have a legislature if its enactments are valid only if all of the members of a randomly selected jury happen to agree with it? If we have a jury independent of the judge, independent of the legislature and not answerable to the electorate don’t we come perilously close to a system of criminal, civil and administrative justice that turns more on personality than on community established and accepted rules?

One thing I find disturbing is that the people who vociferously advocate jury nullification frequently have some private agenda to advance—whether it be hemp growing, blowing up abortion clinics, polygamy, motorcycle helmets, debt collection or some other issue—and their particular point of view has not received favorable treatment from the legislature, the electorate, the executive or the judiciary. Their followers frequently know nothing more about the issue than what they think they saw on some fictional TV show.

30

Give me a break. If you read my posts (and in the OP itself) you will see that I state repeatedly that I see two sides to this issue and am not sure where to come down on this point. The fictional TV show merely prompted the question and was used to illustrate one possible scenario under which jury nullification might make sense. Others have rightly pointed out times when jury nullification resulted in a travesty of justice (whites letting white people go for killing blacks).

I do admit that I like the possibility of jury nullification as a possibility in some circumstances. Our founding fathers, at least one of them, seemed to think it a just and reasonable possibility (see quote by Alexander Hamilton in the first response to this thread), an entire organization exists for the very purpose of pushing the idea of jury nullification and it would seem that this has been a point of legitimate debate going back a very long time. It isn’t just me and my media uninformed opinion here.

Finally, I have no agenda to push. I do not, nor do I want to, grow pot. I don’t drive a motorcycle and doubt I ever will. I do not have debt collectors after me. In fact, I have no reason to believe I should find myself in court anytime in the future and have no plans to lobby the government to change any laws.

Your post was good and had many interesting points to debate but I would appreciate it if you kept the ad hominem attacks to yourself…especially when completely unfounded.

31

Hasn’t Mirandization recently been hobbled by the Supreme Court? It would also seem that jury nullification hs been minimized as discussed earlier. I don’t know if your were being facetious here but you are closer to the mark than you might realize in that becoming a reality.

As to professional jurists I often think that would be a nice answer to our legal system IF (note the big ‘IF’ there) it was implemented properly. Unfortunately that is the problem…a proper implementation that is practical might be impossible to achieve. Still, it seems too frequent a thing that jurors make lousy decision makers on guilt or innocence as the facts and the law are presented to them. Add that these days they are often called upon to decide cases where the issues are complex (legally complex or factually complex such as scientific evidence) and it is hard to see how they could possibly be expected to render a decision based on the facts. Sometimes the ‘facts’ are difficult to digest by true experts in the field. How is a jury with a wide swath of expertise (or complete lack of it) pick through it all?

32

I don’t really think it’s impossible to write the law to cover the exceptions.For the most part, the exceptions have something in common, and don’t involve believing that the law itself is wrong. For example, the the situation involved in the OP OP refers to a killing. We don’t want to make it legal for one person to shoot another person intending death. We might , in fact , believe that the husband has done something wrong, but also that the “something” doesn’t amount to murder and shouldn’t be punished as murder. All we need to do a write a law similar to NY’s murder 2 , which provides an affirmative defense to murder 2 (and only murder 2) when the defendant is acting under the influence of extreme emotional disturbance for which there is a reasonable explanation. It seems to me that that would allow the jury to acquit on murder in all of the tough cases (the one in the OP, the hikers, the man who kills the person who molested his child ) , without telling the jurors that they may acquit someone simply because they don’t like the law itself.

33

[hijack]

In Oregon, you need the concurrence of at least two doctors that you have less than 6 months to live. The doctor doesn’t kill you, he gives you pills and you have to take them all by yourself.

[/hijack]

34

Idiot. What do you think doctors are for?

35

To heal the sick to the best of their abilities. Not to decide who lives and who dies.

That decision belongs to Crow T. Robot.

36

Got one word for you: triage.

37

*Originally posted by BrainGlutton *
[Lawyer’s nitpick with Voodoochile: A “jurist” is a judge or a legal scholar. A “juror” is a member of a jury.]

Yet another mistake, sorry bout that. [non-lawyers alert: ‘bout’ is a slang term meaning ‘about’; or in Canada, ‘aboot’.] Just screwin with ya. :wink:

As to the rest of your post, this may come as a suprise or something but I dont support their desire for a constitutional amendment along those lines.

I think the process is a 50-50 one. I dont think its the govs responsibility to explain something to you that the gov just paid for 12 years of education for you to learn.

The gov is responsible for making sure that your right to an education is not infringed, yes; its not the govs responsibility to excercise that right for you. This is just one example out of many of the real, material affect choosing to remain ignorant throughout ones life can have on other people.

I ~do~ think its the gov responsibility to inform you of the ~defendants~ rights, however; not so much for your sake as for the defendants. As really its the rights of the defendant that matter the most in a trial.

That all being said, I think the pressure towards ‘more informed juries’ results from the fact that in a legal sense, there is no difference between crimes where there is no victim and crimes where there is. Even though in the real world (amongst most people Ive ever met at least), there is very much a distinction. This is one area where the legal world is out of touch with the people for whom they exist and to whom they answer.

If I were to support anything, it would be some sort of legislation, amendment or whatever, requiring a certain level of empirical evidence demonstrating a certain amount of real and material limitation/threat to the freedom of innocent individuals before an action could be legislated against. Though I say that with many misgivings, knowing how screwball such legislation has ended up in other areas (such as endangered species, the environment, etc).

Another aspect of the problem (to me), is the seemingly widely held belief among people in and out of the legal world that legislation is based on morality. As if our laws are some kind of manifestation of some sort of weird group belief or something (‘values’).

But I think thats absurd. And I think that that popular belief results in many laws that are based on nothing more than morality. And I think we all know this. We have gone from a system which provides a framework for people to be free to live by their own morals and values to one in which morals and values are being imposed; often locally but sometimes federally

Murder is not illegal because of ‘morality’, which I define as a belief in the Way People Should Live. Neither is robbery, rape, fraud; all of these things are pretty much self evidently illegal because they are a threat to our individual self interest, in the agregate. Yet there are many laws that restrict behavior that is not a threat to anyones self interest. And those laws are ‘moral’, and in my opinion of questionable validity no matter how many people voted for them.

For example, I have no problem with legislation banning driving or operating machinery while under the influence. I can justify that because the chance of someone doing so harming myself or someone I love is increased dramitically. Yet I cannot justify wanting to ban someone being under the influence in the privacy of their own home, where the threat to myself or anyone else is remote enough as to not be a realistic issue.

38

Triage isn’t playing God; it’s deciding how to maximally utilize one’s healing skills. It doesn’t imply the sort of moral judgments required by euthanasia.

39

Dewey, I’ll add my two cents once more:

Oregon decided to allow euthanasia under very limited circumstances after a long and bitter debate from both sides and a democratic vote and then two years later a revote to confirm. I’m proud of my state’s decision, regardless of what you or John Ashcroft may think about it.

40

Blalron: I don’t disagree. The people of Oregon have elected to follow their own path. They are entitled to do so. It is unconscionable of the Ashcroft DOJ to try to stop them.