Rule of Law vs Jury Nullification, and a side topic

Great Debates
1

I hope the side topic is as closely linked to other readers as it is to me.

Lately, I’ve been thinking about mechanisms a democracy can have built into it in order to remain democratic. One of the great things about the American government, in my mind, is the so-called checks and balances inherent in it, such that each of the three branches can, in some way, hold sway over the others. Ultimately, of course, the government derives its power from the people.

I have never been satisfied with voting as the means for changing the face of politics. It doesn’t sit with me. Reasons for that are not really a part of this thread, but it suffices to say that, while I do think voting is integral to the various forms of democracy, I do not feel that voting is the only thing that citizens should be able to do in order to keep the government in check.

One of the things that continually pleases me is the thought of jury nullification, whereby jurors issue their not guilty verdict based on their interpretation of the law rather than the facts of the case as they are ordered to do. It gives me great pleasure to think that a jury might fail to convict someone on a drug charge, or a sodomy charge, or a child pornography charge (as recently discussed here at the SDMB with the 15 year old girl distributing pictures of herself) purely because they feel the law is unjust (or at least was not meant to be applied in this way).

Without this right, juries simply become pawns of the state–the very state that supposedly draws its power solely from them. The government charges these men and women with determining whether a person should be convicted, and I see no compelling reasons why they should convict a person against their own conscience simply because the legislature has seen fit to create a law in a certain manner (after all, it is quite likely no one actually voted on the law, or even a form of it). The court system requires a trial by jury (in criminal cases) and that jury is yet another check on the power of government–to make sure it only passes laws that the very citizens who source its power can stomach to find people guilty under.

It only takes a few hundred men to pass prohibition laws, but every time a prosecuter anywhere seeks to punish someone with violating that criminal statute, a jury steps forward. If this jury cannot, in good conscience, convict a man of a crime they do not believe exists, I find it against the very spirit of democracy to insist they do so anyway. I find it ridiculous to insist that if they do not like the law they can simply vote out whoever passed it. A man is on trial today for a crime these people do not feel should be a crime–how can we, in good faith, expect the jury system to work if they cannot decide how they see fit to decide, in their own manner?

I do not know. But I am interested to hear opinions on the matter. (Yes, I have read previous threads on the topic. I’d like to revisit it, please.)

The jury is charged with determining the guilt or innocence of a person under a just law, or to acquit if they find the law unjust, and it is my contention that there is in fact an injustice being done by not telling the jury they have this right.

However, it leads me to wonder–is it, then, also the case that police officer should only attempt to arrest those who break laws he agrees with? As it stands, I feel these two topics are facets of the same question: to what extent can a government compell the very people it derives its power from to do its bidding? Shouldn’t rule of law in democracy be only as strong as the will of the people willing to arrest, prosecute, and sentence by that law? Under what circumstances is it in a democracy’s interest to compell citizens to act against their own interests? In both cases we have charged people with upholding the law–but even when doing so acts against their conscience? Is that right?

Would you remove the power of jury nullification, or does it make sense to you?

2

Or rather, that the side topic is as closely linked to the main text of the OP for other readers as it is for me. sigh

3

IMO, everything you said about jury nullification is right on. It gives citizens more fine-grained control over how their government is run, and it gives them that control now, before someone goes to jail because of a bad law, instead of years later, when the guy who proposed that law is up for re-election (against an opponent who may be just as bad).

But I don’t think a police officer is in the same position. He chose to become a cop, knowing that his job would be to enforce the law. If he joins the force intending to change the system by “forgetting” to enforce certain laws, I suppose that’s a form of civil disobedience, and I applaud it (if he chooses the right laws, of course ;)), but I wouldn’t blame his superiors for discouraging that sort of thing, or for canning him when they find out about it.

4

Most Americans (apart from extreme Libertarians) accept the legitimacy of majority rule in politics – meaning, the outvoted minority on any given issue must give way to the majority. Laws are enacted by a voting majority in the legislature, very rarely by unanimous vote. And we call that democratic government, or republican government, whatever.

But in our legal system, a jury can convict a defendant only by a unanimous vote. That means even one dissenting juror enjoys an effective veto power over a law’s application in that particular case. Is this consistent with the democratic principle?

As for the side issue – a police officer is not an ordinary citizen, but a professional civil servant. Enforcing the law is his/her job. Enforcing it, not making it. How is it proper for the officer’s personal views to play any role in this?

5

That’s fine, as long as you realize that the same jury nulification that lets a jury fail to convict on a drug charge or sodomy charge or whatever, historically has also been used to let people who lynch go free, and let people who kill civil rights workers and activists go free.

6

I’d just like to point out 2 small nitpicks.

I’d like to draw attention to the phrase “in politics”. There is qutie a bit of disagreement about what exactly belongs in the realm of politics. As long as all parties agree that a particular issue should be decided through politics, then I think they would agree that the majority should rule. However, when you have a law which crosses the line (or an application of a law in which the application does so) our system of government gives us other means of correcting the situation. Jury nullification may be one of them.

Also:

How is it not? The officer must decide on a case by case basis whether any law fits a given activity. He must then decide if enforcing that law in that place at that time is worth the risks to himself and others. When you factor in that he must make such decisions on a split second basis, how can his personal views not be a part of such decisions?

Having said that, I think the government would be entirely within its rights to fire a police officer who let drug offenders go simply because he favored legalization of drugs.

Captain Amazing added a caveat that I would like to echo. Jury nullification has wide potential for abuse. But then, of course so does every other aspect of our criminal justice system. Especially if you only look at them one at a time.

7

Well, sure, I do realize this. One man’s abuse is another man’s exercise of freedom. But while I couldn’t support those things if I were on a jury, the matter is still, for me, clear: that the government shouldn’t be prosecuting people that we don’t want to find guilty. And we are the ones who must find them guilty, if anyone is to. That is a power we should not give up.

Because we hired him to enforce laws, and to use his judgment in order to affect his own safety and the safety of the citizens around him. When does he draw his gun? When does he arrest a kid instead of taking him to his parents? When does he break up a fight without taking a combatant downtown? --Police officers use lots of judgment all the time.

But on the matter of which laws they enforce, I think they are perfectly within their rights to only enforce what they feel is worth enforcing (truly, a broader extention of what they are already doing). If the state cannot find enough competent men to enforce or find guilty under its laws, I think its laws are wrong–not the citizens. This means, as others here indicate, that it must be within the power of the government to remove executives that do not support the laws of the land to a satisfactory degree.

8

One of the principles of justice is equal application of the laws. How just is it if I am put in prison for my dalliance with a 16-year-old, while the guy across town goes free for having done the exact same thing – with, perhaps, the exact same girl?

Now, of course there is a risk of that result no matter what system we put in place. But to embrace a system where that is a contemplated, desirable result seems foolish.

Here is the basic flaw in the OP’s argument. The government does NOT draw its power solely from the twelve members of the jury, but from the citizenry as a whole. To permit these twelve to thwart the will of the majority, as expressed through its democratically-elected officials, is wrong.

Obviously, “permit” is a tricky word. In point of fact, juries are permitted to do just that, because an acquittal is beyond any appeal. If the jury chooses to acquit for such reasons, there is no recourse. They have the power, then, to nullify the law.

But not the right to do so - nor should they.

  • Rick
9

Hi Bricker.

How is it a just law if the prosecution cannot reliably find juries to find people guilty based on the facts rather than not guilty based on the law? This is my point. Sure, with jury nullification there might be the odd case or two thrown out because this jury happened to find the law unfit, but what sort of society are you hoping to protect when you can’t rely on the jury system for conviction because your law is that unpopular? If the legislators are representing people properly, is jury nullification a dangerous power or a statistical quirk?

The flaw in your counter here is that the twelve aren’t thwarting the will of the majority, they are thwarting the will of the representatives. So long as the representatives are in line with the citizens, a randomly selected jury should be in line with the representatives. Perhaps there will be anomolies in some juries, but again–if you can’t get a jury that will support the law, how is that a fault of the citizenry? Isn’t the problem the law, in a democracy?

10

I meant to add, but if the legislators are not representing people properly, then is jury nullification suddenly the last stop before imposing unjust laws–is it a necessary power, a right we need to maintain in order to secure a fair justice system rather than thwart it?

11

You might direct your inquiry to the family of Medgar Evans, killed by the KKK in Mississippi. The accused killer, Byron de la Beckwith, was undoubtedly the beneficiary of jury nullification beliefs at the time. Indeed, he sought to send copies of the “Citizens Rule Book” (a so-called “jury handbook”, containing an essay advocating jury nullification and the text of the Constitution with notes suggesting that after the 12th Amendment in 1804 no other amendments were validly adopted) to the jurors in his 1993 federal trial.

In other words, when we accept jury nullification, we accept jury prejudices that we may not like. It’s great to cheer the heroic jury that nullifies a marijuana conviction and a statutory rape conviction – but with them, you must accept the jury that lets a KKK murder of a black man go free, and a gay-bashing skinhead’s murder of a gay man go free - because, after all, the coloreds are uppity and the fags spread disease.

  • Rick
12

This isn’t a correct description of jury nullification. Jury nullification is not based upon a jury’s interpretation of the law; instead it is based upon their refusal to apply it to the particular defendant.

A nullifying jury is not sitting in the jury room trying to decide what the law should be; instead, it is saying, “I don’t care what the law says, [the defendant] didn’t do anything wrong.”

eris, you make a poor assumption - you assume that jury nullification only occurs in instances of unpopular law. More often, I’m afraid, it occurs in instances of unpopular victims and/or popular defendants.
A jury who acquits a rapist because the victims was “dressed like a slut” and “asking for it” does not have any problem with laws criminalizing rape. Instead, they have a problem with giving that piece of trailer trash the protection of that law.
Similarly, all of those white juries who acquitted persons who murdered civil rights workers in the 60s didn’t think that murder should be legalized. They simply thought that a white man shouldn’t be punished for giving an uppity nigger what he had coming.

Your view of jury nullification is overly romanticized. For every John Peter Zenger case, Jury Nullification there are dozens where the captain of the high school football team is acquitted of rape because the team won’t make the state finals if he is in jail.

Is jury nullification important? Yes. It has caused significant advances in legal and civil rights over the centuries. Is it extremely dangerous? Also yes. It should not be outlawed (even if it could be, which I doubt), but it certainly should not be encouraged.

Sua

13

There are other means of deciding what does or does not legitimately fall within the realm of politics (or of government, or of law). The First Amendment, for instance, sets matters of religious doctrine outside the compass of the state (a radical innovation in its time). Apart from that, the processes of politics can be used to decide what is beyond the competency of law or of government. Libertarians and other state-minimalists have as much right as anyone else to organize, agitate, vote, and run for office. If, after all that, they still can’t get their way, then I don’t see how it is legitimate for one randomly selected voter, impanelled on a jury, to interfere with the expressed will of the community, as worked out through a lengthly, complex and difficult process of political and legislative decisionmaking. Unless you question the legitimacy of the democratic principle itself – which many Dopers do.

14

There’s the rub. Jury nullification is something that can’t, logically, be taken out of the jury-trial system, not if jurors are to be left free to vote as they wish. But the activists of the Fully Informed Jury Association (http://www.fija.org) want a Fully Informed Jury Amendment to the Constitution that would require the judge in every jury trial to instruct the jurors that they have the right and competence to judge the law as well as the facts. In other words, they want the system to actively encourage jury nullification. That’s not how it is now. When the evidence is all presented and the argumens are all done, the judge often instructs the jurors, in great care and detail, that they may consider certain things in making their decision and they may not consider certain other things.

15

Where the Fully Informed Jury Association’s argument fails is their belief that the ability to do something is the same as having the right to do something, much less the competence to do something.

You can’t stop jury nullification any more than you can stop people from having unprotected casual sex. But you should neither encourage people to have unprotected sex nor to nullify.

Sua

16

Such a case tugs at my heartstrings, Bricker, it truly does. I cannot imagine the grief the family must feel. But what I am unclear on is where you stand on the matter. You’ve said it isn’t a right already, but does that mean that, if you could find a practical means to do so, you’d support the removal of jury nullification? Or does it simply mean that it is something we must live with in order to have a jury system? I cannot imagine that you’d support a new order that judges instruct the jury that they have this power directly as was once done before (as I understand) no jury would convict labor organizers–something that (again, I am lead to understand) caused the position we’re in now, where most places do not directly inform a jury.[sup]*[/sup] But I am not quite clear on where the issue sits with you.

Sua, it is good to see you again.

Well, it seems that was the content of the OP, though your quote is poorly phrased on my part. I didn’t mean to imply that they were simply interpreting the law in some strange way, but rather appraising it on its face and refusing to consider it. In a thread with lawyers about law, one can never be too careful.

My presentation is idealistic, yes, but I do not wish to only have the thread be about such lofty pursuits as limiting the government–that would not make a very interesting Great Debate. If I had to explain every nuance of my position in the OP no one would read it. :wink:

But this point comes up again: the power of jury nullification is like any other power in that it may be used for good or bad ends, relatively speaking. And of course, the emphasis I wish to place is relatively speaking. It is, for me, a plain fact that there should be no discrimination based on race, gender, sexual orientation, and religion in a broad sense. Yet this is clearly not so for all americans, and their threshhold for tolerance on certain matters will vary wildly. The whole gay marriage debate yields a fine example where any dichotomy is false: people have a very clear spectrum of ideas that are in public intercourse (i.e.-rather that being an abstract “nothing is absolute” kind of spectrum, people have offered any number of suggestions on “what to do about gay marriage”). For me, the answer is clear; for others, the answer is clear. We can suggest this about a great number of topics, including lofty ideals like equal rights for non-whites, or letting women vote (or is it recognizing that they should have been able to all along? -or is it… , ad nauseum), and so on.

What is the difference between stopping legislative tyranny, and letting loose various cronyisms on the judicial system? We’ve made sure that blacks have recourse for unequal treatment now, but has that eliminated racially motivated violence? Don’t these racists feel oppressed? Who the hell wants to stick up for racists, hail Eris not me, but if I may retreat to ideals yet again, if I may tug at the heartstrings a bit, it feels not unlike the Crucible. If we are to have a jury system, and if juries are to uphold the law, it seems clear to me that a law is only as strong as the willingness to support it–and that we must allow that people might not want to support it (or, as per my side topic, enforce it). Otherwise, why have juries?

Now you suggest that it is likely impossible to remove this ability from the jury, but the history I’ve read of jury nullification suggests that there have been attempts to coerce juries to reach an “obvious” verdict (i.e., post magna carta time, jurors being jailed until they found the proper verdict). This seems pretty draconian, I think we’d all agree. But what alternatives do we have, Sua? Is it really that we are between a rock and a hard place?

I would consider jury nullification a right, I think, rather than an ability. In the end, we are a nation not just of laws, but of people enforcing and supporting laws–laws that are, and rightly should be, meaningless without that support.

*[sub]I have been recently informed outside of the dope that the instructions given to a jury, and what various officers of the court may tell a jury, are somewhat local concerns rather than strictly federal concerns. For all I know, some places still inform juries in this manner, while others completely ignore it. I am unclear whether a justice system that should apply equally to all should also allow such variation in juror instructions. Maybe another time.[/sub]

17

I’m reasonably content witht he system as it now stands - we trust the jury to do the right thing by following the judge’s instructions concerning the law. I cannot imagine a practical way to end jury nullification but maintain the power of the jury to be the ultimate and unquestioned judge of the facts. If such a way were to present itself, I imagine I’d support it.

I do NOT support the idea that we must tell juries that they are the judges of the law as well as the facts. They should not be.

  • Rick
18

Thanks for your clear reply, Bricker, but this particlar quote has me at a loss, still. Do you think that jurors should not be judges of the law because of the practical matter you raise (as have others here), where a jury of racists can let a man go because he beat down an uppity nigger, or because of the ideological matter that juries, by definition or derivation, are not those that can judge the law? In previous debates I’ve seen you participate in, you very often have persuasive arguments of the latter type. If you have such an ideological argument, I would really appreciate hearing your side; or, if it is a way of thinking I may research, a point in the right direction.

In any event, the crucial point here is that you believe juries do not have the right to nullify, only the ability; and, it seems clearly derivable, that they only have this ability because they are “the ultimate and unquestioned judge[s] of the facts,” the keyword being “unquestioned,” of course. If there could be any reconciliation to the problem jury nullification presents, it would have to be in reconsidering what a jury is, because to me it seems clear that one of the facts of any case is that there is a law against it, and one of the facts a jury can judge is that this law is not really the case–and it is not really the case because they are not willing to consider it so, as with any other fact.

If I am harboring a felon, charges may be brought against me. If I get in the way of a criminal proceeding, or a sentencing being carried out, I am in violation of various laws, correct? Say a felon escapes after a trial and tries to stay on my property and I do not turn them in (though neither do I lie to any police officers or directly impede an investigation). I am able to be charged and brought to trial. If you feel juries should only judge facts, and they find not guilty when it seems clear to the state that the person should be guilty, can they not reasonably put the jurors on trial by questioning their verdict by analogous reasoning? (I know the answer is “no,” I am fishing for alternate jury schemes and consistency with analogous situations to minimize or eliminate nullification, so please bear with me. This is not meant to be a thread arguing technicalities of law but the very ideas behind it, practical and ideological.) For example, the case Sua mentioned, the guy even admitted guilt (a strange defense, of course, unless one was superbly certain of the prosecutor’s evidence or the political climate of one’s peers)–do you still feel the state should have no recourse when this jury plainly denied the facts, as you suggest should be their only charge?

For it seems to me that if you can find no way to remove the power to nullify, and if you can accept no other definition of the jury, then nullification is plainly a right inherent in the system.

19

I agree conditionally (see below).

But the question about whether or not a particular individual is guilty of a particular crime has not been “worked out through a length, complex and difficult process of political and legislative decisionmaking”. In fact, that very complex process has said that the final arbiters of inocence is the jury. I agree that an argument can be made that juries are not qualified to judge the law itself. But they are certainly empowered to judge the application of the law in a specific case.

I do not question the legitimacy of the democratic principle in general. I simply deny that it is all powerfull. There are areas of life over which it should not have power. Not because some population voted to deny that area of life some centuries ago. But because the body politic has no business legislating certain aspects of individual behavior.

If I may introduce a third side issue, I think the process of Constitutional ammendment falls (broadly) into the same category as jury nullification. In that they both have the defacto power to do what they were not directly intended to do. Specifically, I don’t think juries were every intended to pass judgement on laws. The ammendment process was never intended to provide a means to scrap the Constitution. Both powers exist, however, as an unavoidable byproduct of the system within which the intended powers are exercised. Once you grant the power to change the constitution in any way to some portion of the electorate (or their representitives) you have effectively granted the right to change anything and everything. They could scrap the whole thing and invite the Monarch of England back in. Once you say that an aquittal cannot be questioned or apealed, you have granted the effective right to juries to nullify laws. At least in so far as a particular case is concerned.

Perhaps in both cases, we have a situation where the current system is the worst possible one except for all the other possibilities.

20

I imagine I’ll end up regretting this, but I’ll take a swing:

I envision a system where the jury is given legal counsel (like grand juries) and along with the verdict, they are required to publish findings. For example,

In the case of the State of Florida vs. Joe Murderer, we the jury find the following:

  1. That the coroner’s report showing that Jane Victim was strangled to death was compelling, specificallythat the bruises found around the neck show clear evidence of strangulation.
  2. That the DNA evidence linking Joe Murderer to the scene of the crime was compelling.
  3. That the testimony by Tim Alibi regarding Joe Murderer’s whereabouts at the time of the murder was not compelling.
    Therefore, we find the defendant, Joe Murderer, guilty as charged.

In a hung jury situation, the majority would lay out their facts and the minority would identify and counter those that caused them to vote the other way.

In those few remaining cases of jury nullification, the judge would be authorized to declare a mistrial.