I admit to employing a modicum of hyperbole when I said, “locked away for the rest of their lives.” Would “have their lives ruined by a felony conviction” be more acceptable to you? Or would you care, perhaps, to address the actual substance of my argument, which is that preventing a conviction under an unjust law may be a higher moral imperative than keeping one’s word?
10 year old buy crack.? If they do the person selling them is not the problem. They will get it elsewhere. Deal with the 10 year old.
Funny how literature works. Had I thought to do it, I’d have used exactly the same quote. The problems with American drug law are exactly those More identified: they take any measure possible to catch the Devil, with no care to what protections are left for the rest of us once they’ve got him.
Good point. I was not defending drug laws, far from it. But, bad as they are, I think I would have to count them as the lesser evil as compared with making the jury trial process meaningless and corrupt. At least if you are considering things in the longer term.
And I freely acknowledge that neither I nor anyone I know has been prosecuted for drug use, so my comparison above is a bit theoretical. I hope that such an unfortunate experience would not change my convictions.
Roddy
More acceptable, yes. Still, there is an easy way to avoid a felony conviction. Don’t commit a felony.
If you think the law is unjust, at least have the balls to tell the court. As xtisme pointed out, there is an entire process for changing the law, including proper civil disobedience, that doesn’t require the commission of perjury, deception, and lying. While I’m sure you think your judgment is completely flawless, so did the jurors who let white people get away with crimes in the South because the victims were black.
With jury nullification, you are not doing a single thing to change the law, you’re just letting one person, who you know next to nothing about, off while thousands of others “suffer” under the same law.
I understand if you don’t want to be a part of the system that may convict someone under a law you feel is unjust. But you don’t have to.
Judicial activism is a problem because it is anti-democratic. Juries, on the other hand, are an embodiment of our democratic principles. The problem with jury nullification is that it is too democratic–it leaves too much in the hands of the random sample of people selected for the jury.
Actually, many courts believe that your role on the jury is to judge facts, not interpret the law. But it certainly hasn’t always been the case and is certainly not required by the Constitution or our democratic principles. There is some evidence that the framers wanted the backstop of jury nullification, which is why juries are so central to the Constitution.
I believe that it isn’t even against the rules everywhere in the US for attorneys to make arguments for jury nullification.
Depends on the oath. Jury nullification doesn’t violate all jury oath, just some of them.
I wont lie to get on a jury just to nullify it, but if I happen to be selected for a jury involving a victimless drug charge, I will nullify the jury.
You would have to lie to get picked on any jury concerning this issue if you have a pre-disposition to do what you are saying you’d do. No prosecutor would allow you on the jury otherwise.
-XT
I don’t see how lying about one’s willingness to convict on a drug charge is in anyway cowardly. If I am utterly convinced that people should not serve jail time for drug charges, by actively subverting the jury process I am, at least, acting on my principles (regardless of the relative merit of said principles) and putting myself in danger by doing so. Under those circumstances, you could legitimatly question my honesty, but I don’t think you’d have grounds to question my courage.
Well, since we’re making ridiculous comparisons, I’ll go ahead and point out that the folks who, in defiance of the law, hid Jews during WWII also thought their judgement was superior to that of the state. Of course, the Nazis seldom bothered with courts, but if in some rare circumstance there were a trial held to determine if a particular person had Jewish sympathies, would your conscience dictate that you honor the sanctity of the jury process, regardless of the corruption of the system it represented? I don’t mind if you decline to answer, as it really is a pretty stupid comparison. But no less so than your comparison to racist Jim Crow juries.
I may not be changing the law, but that doesn’t mean that what I’m doing does not have any merit. I am, at the very least, preventing one single injustice. Isn’t breaking my word a small price to pay, even for so little a victory?
That’s not necessarily true. It is often true that such questions are asked during voir dire, but not always. And only in the Second Circuit can a judge dismiss a member of the jury for expressing an intention to nullify.
I will bow to your superior knowledge on that Richard Parker and retract what I said. It was from my own personal experience in being selected (or in my case not) the 3 times I have been asked in my life time. I thought all juries were selected that same way with the whole questions and answer (and asked to leave) process.
-XT
The questions asked in voir dire are at the discretion of the prosecutor. Most prosecutors probably set nullification traps and just generally assess whether a prospective juror has any strong opinions on the law. But it doesn’t happen every time, and I’m not even sure it is possible to do so in every state.
Interestingly, in the home of The Wire (Maryland), criminal juries are tasked to decide both the law and facts. The criminal jury instruction reads: “Members of the Jury, this is a criminal case and under the Constitution and the laws of the State of Maryland in a criminal case the jury are the judges of the law as well as of the facts in the case. So that whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. And you may apply the law as you apprehend it to be in the case.” This view of juries was commonplace in post-revolution America until the mid-Nineteenth Century. It remains in a few states.
I think that means that you can’t challenge for cause a prospective juror who indicates an unorthodox view of drug law, but I don’t know that for sure. A prosecutor could still use a discretionary challenge, of course, but those are limited.
I thought it was.
Which states permit an attorney to explicitly argue for nullification?
I think the “as long as there was no violence involved” caveat lets the crusader off the hook morally and ethically. As long as you hold true to that, you can honestly answer that you might vote to convict in a drug case.
Unless during voir dire the prosecution presents its entire case, you could answer honestly that you might convict despite the fact that once it goes to trial it turns out that you never would have.
I should point out that I would go into no case with specific intent to nullify. I simply feel that, in addition to ‘guilty’ and ‘innocent’, there is the category of ‘they shouldn’t have charged this guy for this crime’. Notice that it is situational, and depends heavily on the specifics of this case, but in cases where I feel that a travesty of justice is being committed, I think that it is necessary, as a human being, to keep the option of choosing ‘not guilty’, even if the man is obviously guilty as sin, because I don’t want this man to pay the penalty for this crime.
There is a difference between arguments aimed at encouraging jury nullification and express advocacy of jury nullification. In DC, expressly advocating for jury nullification constitutes a breach of ethics according to the DC bar, but an attorney can make arguments about the law in question that have the collateral effect of encouraging jury nullification. So, in this case, that might be discussing all of the negative consequences of the drug war–an argument which isn’t about any legal defense, but which does not expressly advocate nullification.
But it isn’t clear to me that even express advocacy is universally prohibited.
As pointed out, some jurisdictions specifically instruct jurors that they are free to interpret the law as they fit. This can result in a type of jury nullification (though, granted, in a drug possession case mere interpretation of the law might not be enough). I presume that in those jurisdictions an attorney can make arguments to a jury about how the law ought to be interpreted and applied.
In NYC, the Committee on Professional Responsibility says this about jury nullification:
They go on to note that such arguments are in fact barred by the rules in some cases, but not all.
Follow up to this (the original link in the article is broken BTW):
I’m not particularly savvy when it comes to the law, but that argument strikes me as loony. As far as I am aware, jury nullification of the “natural” variety – ie: not premeditated – is perfectly legal. Given that, how is the following anything but the ravings of a loon?
I’m not surprised that the prosecutor wished to remain anonymous.
Plus, all the “In America, God bless her, …” crap isn’t exactly endearing me to that guy’s argument.
One interesting point (if slightly unrelated), he mentions the Zender trial, as possible precedent (though denies that it is in fact a suitable precedent). But how could the Zender case, predating the Declaration of Independence by several decades, be used as precedent in a US law ? Are judgements that PREDATE the US relevant as precedent ?
Yes. US common law is considered to be a continuation of English common law.