I actually disagree with that. If, for instance, Schmoe is a fuckhead, but upon receiving his jury summons, starts acting like a gentleman, then when the defense attorney asks him, “Are you a fuckhead?”, Schmoe will answer “No, I am not a fuckhead,” knowing full well that after his jury term ends, he will resume his natural fuckhead behavior, and more importantly, fuckheadedness will color how he forms his opinions on the jury. His gentlemanliness is a mere façade. That is what is dishonest. He is making a deliberate effort to misrepresent himself.
Which is not a little ironic, in the context of stated FIJA ethos, that technicalities in the law should not distort the application of justice. Yet, prospective jurors are encouraged to attempt to ride technicalities onto the panel. Which is to say, the very group itself is inherently dishonest.
IME, the attorneys often ask questions of the jurors less directly, in an effort to tease out a sense of who they are, rather than to interrogate them. In such situations, trying to disguise one’s fuckheadedness is likely to fail.
Most of the time, I find hate to be a waste of energy. It can come in handy for a minute or two, but you have to let it go or it will chew through you from the inside out. But I find dishonesty, well, crooked, and crookedness is what the system is supposed to be opposing. When we have crooked people meting out justice, the system becomes corrupt, no matter who it is being dishonest.
It’s common for jury questionnaires to ask a prospective juror if he or she will be able to follow the judge’s instruction that the juror must accept the law as it is, regardless of his or her personal feelings about it.
I had a client once who on trial for drug charges. The main issue was whether or not the drugs found in her room belonged to her or her roommate. The head of the local drug task force had recently been arrested and charged with numerous crimes, and he had been present at the search of my client’s home (though he didn’t write the report or do any of the actual searching). My client was hoping she could use his malfeasance as a way of fighting her case (“can’t believe the cops when they said they found it in my room, they’re crooked”), and I explained to her that the judge was likely to exclude (and did indeed do so) any testimony/evidence related to the head of the task force. Client responded with “but when they swear you in, they say to tell the whole truth, how can the judge order me not to tell the whole story?”
Of course. And an honest juror will answer that question honestly to the best of his or her ability. But I think it would be a mistake to pose such a question to prospective jurors pre-trial without any context, and THEN have them find out once trial begins that they can actually ignore such an instruction if they feel like it. I think such a trial would be better served to put the specific issue in front of the jurors before questioning them so that (in an ideal world) they’re able to give a more knowing response.
I once heard a partner telling an associate about a witness prep technique they often used: They would ask the witness what time it was. The witness would often look at their watch, then answer. The partner would admonish them that the correct answer is, “I don’t know.”
Are you asserting that doing the bolded thing is a matter of agreed law, or are you merely asserting that the secrecy in the jury room coupled with the privacy of one’s own mind means that as a practical matter each juror is free to decide whatever they want for whatever reason they want, fair or foul, including massive use of hallucinogens or rolls of the dice?
There’s a huge ethical and legal distinction between saying the judge’s instruction is unenforceable at the limit versus saying that it’s illegal, immoral, unconstitutional, or fattening.
The answer is maybe. Others have provided links to threads and articles about similar cases, and this sort of issue is not clear cut.
He freely admitted that his target audience was people who might be selected as jurors in a specific criminal case. However, based on his lawyer’s statements, it appears jury selection for that case has yet to begin so there is arguably no jury to tamper with. Based on similar cases we’ve discussed in the past, the law seems to say that “tampering” with the venire does not constitute jury tampering.
As to whether jury nullification is actually legal, I will refer you to Bricker’s rather good SDSAB report. The short version is “not really, at least in most jurisdictions, but there’s nothing that can be done about it unless jurors admit to it because jury deliberations are closed.”
Pretty much for sure a decision by a juror to go off the ranch in either direction is a violation of the juror’s oath. The oath varies from jurisdiction to jurisdiction, but generally includes an injunction to follow the rules as explained.
So to nullify a juror must decide for themselves that that instruction doesn’t apply to them due to whatever combo of illegal, immoral, unconstitutional, or fattening they prefer instead.
It is a matter of agreed law in some jurisdictions. New Hampshire is one of them, IMO. NH Section 519:23 states, "In all criminal proceedings the court shall permit the defense to inform the jury of its right to* judge the facts and the application of the law** in relation to the facts in controversy."* This was codified in 2012. However, in 2014 a case came before the NH State Supreme Court, The State of New Hampshire v. Richard Paul. that indicated while the language of the law was fine, it was not about nullification specifically, rather it codified already existing law. The jury instruction previously included a “Wentworth instruction” which stated in part,
(my bold and italics in all of the above)
The NH code above and the difference between must and should in the above indicates the ability of the jury to be a both a trier of fact and of law. You may disagree that this constitutes a matter of agreed law.
I’ve had the fortune/misfortune to be on multiple jury selections in capital cases. The prosecutors in those cases were very clear to the jury that lifetime imprisonment and/or the death penalty were on the table. They were also very clear about asking us if we were willing to follow the law, and asking us to recuse ourselves if we weren’t willing to follow the law.
In the capital case where the state was seeking the death penalty I, as I’m anti death penalty, indicated I would not follow the law even if I believed the prosecutors had proved their case. If they had put me on the jury that would have meant I would effectively be nullifying.
In the capital case where the state was seeking lifetime imprisonment I got further into voir dire and saw probably 2/3 - 3/4 of the jury pool say they wouldn’t follow the law(the “Law of Parties” has a long history in Texas). They ended up calling off the attempt to put together a jury pool for the latter case and dismissed us all. It was interesting to see more and more people come forward saying they wouldn’t agree to condemn someone under the Law of Parties for murder when that person hadn’t been the shooter.
What does this have to do with Jury Nullification? Well, in some cases the prosecutors are very well aware that the public may take issue with a law, and go so far as to explicitly ask them if they’re willing to follow it or if they intend to vote to acquit even if the facts are proven. This has happened to me personally twice, and I’m sure it’s happened to others as well.
Hiding the existence of Jury Nullification pamphlets and fining/imprisoning people for promoting it won’t change the fact that large numbers of people feel some laws are simply unjust and that even if someone is factually guilty of breaking them, they shouldn’t be punished for it. This is explicitly baked into the capital murder cases I’ve been part of, why is the criminal justice system so afraid of citizens having a say in the law? If the laws are continually overturned by everyday citizens then maybe that says more about our lawmakers and the judicial review(or lack thereof) than it does about our citizens.
I didn’t see that part in the article I read. What was the case? Or did he admit that he was hoping to inform potential jurors who might serve on a specific case, but didn’t admit what the case was?
This local news article seemed to imply that he referenced a particular case, but his lawyer says otherwise, apparently. So I could be wrong there. The Volokh article at the second link is worth a read in its own right, incidentally.
Sure, but accomplishing the same task does not necessarily mean it’s criminal. At some point the link between a seated jury and the speech is so attenuated that there cannot be a crime.
