Jury nullification, for anyone not familiar with the term, is the refusal of a jury to render a verdict according to the law. It basically stems from two features of our legal system: the prohibition on punishing jurors for their verdict, and the prohibition against double jeopardy. I have two questions for the group:
Under what circumstances would you feel morally and/or ethically justified–if not obligated–to vote contrary to the law while serving on a jury?
If your answer to the above is “Never,” should the law be changed to prohibit nullification? If so, how? If not, why not?
Okay, so that’s actually three questions. Everybody knows Rhymers can’t count
We have no legal procedure to determine on what basis a jury renders its verdict, and thus determine that jury nullification even occurred. Jury nullification is an informal term which could not be codified.
Right. What I have heard is questions about how aware jurors should be made of their ability/right to nullify. Should it be part of the judge’s instructions? Should a juror be removed if they are known to support the concept?
My answers are no and yes, respectively. Jury nullification is when twelve (or less!) randomly selected individuals but their own beliefs before the law made by the duly elected government. The jury box is not the proper forum for political dissent.
If I was selected for a jury and the case involved a law I percieved as paticularly unjust, I’d let the judge know my poisition on it and expect to be removed.
Also, you can’t generally argue for nullification to a jury. You argue for an interpetation of the facts favorable to your client. If Defendant is charged with spitting on the sidewalk, you can argue that Defendant did not spit–liquid may have come out of his mouth, but he was drooling, or coughed without covering his mouth. You can argue that the incident did not take place on a sidewalk as defined by law. You can challenge the credibility of the State’s witnesses–maybe they didn’t see what happened, maybe they were mistaken, maybe they lied about what they claimed to see. You can’t argue that spitting on the sidewalk is ok, or that the jury should ignore the law.
Quite true. I suppose my second question comes down to “Should there be a legal procedure to determine on what basis a jury rendered it verdict?” For instance, the jury could be required to note what elements of the prosecution’s burden it felt had not been met, and if a judge felt that their response in that matter was not reasonable, the verdict could be set aside.
By the way, Fear Itself, I notice that you didn’t answer my first question; do you have an opinion? Are there any circumstances under which you, personally, would be willing to vote your conscience rather than the law?
Oakminster, I wasn’t asking under what circumstances a lawyer may or should be allowed to argue nullification; rather under what circumstances a juror may or should exercise this power (which is, as pointed out above, only a logical consequence of the jury system, not a de jure power).
For example, if slavery still existed in the United States, the Fugitive Slave Law were still in effect, and I were on a jury in such a case, I’d feel ethically obligated to acquit the defendant because of the manifest unjustness of slavery and any law set up to support it. I would feel no obligation to ask to be excused from the jury.
On the other hand, if I were on a case where, say, a grieving mother murdered the person who raped and murdered her child, I would probably have to ask to be excused, because I’d be too biased to make an objective judgment, but I don’t feel the law against murder is inherently unjust the way the Fugitive Slave Act was.
Your obligation is the same in either case, to return a verdict based upon the evidence presented in open court. If you can’t do so, you are obligated to bring it to the attention of the court–though normally this would be covered during the jury selection process. If you lie during Voir Dire, you not only taint the verdict and possibly provide grounds for a mistrial or reversal, you also expose yourself to possible prosecution.
Always remember and never forget, law and morality are two very different things.
IANAL, but I just finished serving as a juror on a (minor) criminal case.
The judge read us the charge and the law before jury selection began. One potential juror was excused, with thanks, specifically because he said he would have an issue convicting someone under the legal system in general. I didn’t get his reasoning, but the judge sincerely thanked him for his honesty. (He excused some other people he thought were faking a lack of understanding of English not so kindly.) In the case of the Fugitive Slave Law, since you are answering questions under oath, I would expect the prosecutor to ask each juror if they felt able to follow the law. If you were not, and said you would, I would guess there are penalties. So, anyone feeling this way would get on the jury only if the prosecution were incompetent, or if they were lying.
If the latter, I don’t know what the foreman could legitimately do. I’ve read of cases of suspected nullification, but I don’t know if that is from juror statements after the trial.
so the answer to 1 is never. The answer to 2 is no. Our instructions stressed the subjective nature of the decisions we had to make (while giving firm instructions on the decisions to be made) so I don’t see how a legal procedure to find the basis can be developed. It is going to often boil down to a juror feeling it is the right way to vote.
Yes, in that I have an absolute obligation to do what it moral, whether or not it is legal and regardless of the consequences to myself (not that I meet such a standard).
Again using the Fugitive Slave Act as an example, if I recall aright it prohibited even private citizens from aiding runaway slaves, and required law-enforcement officers to arrest persons suspected of being runaway slaves on extraordinarily flimsy evidence; if a white person supplied sworn testimony that he was the legal owner of a black, then the marshal was obliged under the Act to take that black person into custody, and that black person was denied recourse. I would feel no obligation to follow this law, and, in fact, I would say that if I were to follow it, I would be acting unethically, immorally, and in a cowardly manner to do so. I would likewise, if called to serve on a jury in the case of a person accused of violating the act, feel entirely justified in serving on that jury with the express purpose of seeing that the accused went free.
Again, the right thing to do is to disclose your position to the Court when asked about it during jury selection–and you will be asked by any competant prosecutor, and in all probability, get removed from the jury. It is not about your personal moral beliefs. The conduct you propose is illegal. Doesn’t matter what the law in question may be. I’m not sure I can make this any clearer.
I’ve done my jury duty for this decade, so it’s not as if I need advice this moment. Also, absent a sea-change in the US political & legal landscape, the Fugitive Slave Act is not likely to be a real issue (just in case any moderator is thinking of closing the thread under the “no furthering illegal acts” rule.
What you seem to be missing, Oakminster, is the substance of my argument: that it is sometimes immoral to follow the law. The FSA is an extreme example, but it’s akin to the old saw about “If you happen to know your neighbor down the street is hiding Jews from the Nazis, what do you tell the SS when they ask?”
(I hope that doesn’t count as calling anybody a Nazi; I do NOT mean to accuse Oakminster or anyone else of that.)
Besides, there is another possibility. Suppose the prosecutor asked me in voir dire whether I could set aside my own judgment, and I replied, honestly, yes. I have not therefore lied. Further suppose that I became convinced during the course of the trial that the law the defendant iwas accused of violating was as unjust as the FSA. Would I be ethically justified in voting to defy the law?
I’m not missing that at all. I grok your position. I’m consistently giving the only answer I can give–which is to follow the law. It is not up to you as a juror to decide whether a law is moral or just. Your legal duty is to obey the Court’s instructions.
In the event that you consider a particular law immoral or unjust, you have the constitutional right to petition your government to change that law. That is the appropriate remedy for your position.
No, sir. As I believe you mentionned yourself, legality and morals aren’t the same thing. The “right” thing to do isn’t necessarily to follow the law. You’re the one mixing up “right and wrong” and “legal and illegal” here.
The poster you responded to is perfectly right in my opinion. If the law is immoral, the “right” thing to do is to prevent it from being enforced. For instance deliberatly make sure to be part of the jury and sabotaging the legal process.
It depends of course of how cut and dry the issue would be for me, but on principle, I agree with him.
If the law is not based in morality, if it is amoral and immoral at times, on what basis should I as a citizen respect it? Because I might be punished if I break it? That’s just a variant of “might makes right” which I also do not respect.
When I used the word “right”, I meant “correct”. No moral judgment implied. You can nitpick all the semantics you want, the bottom line is as I have stated repeatedly–his legal duty is to follow the law.
You are entitled to hold any opinion you want. Acting on that opinion, if contrary to law, may well land your ass in jail.
It’s not about semantics. It’s you stating that the correct course of action is to follow the law, an opinion we disagree with.
As for his legal duty being to follow the law, it’s quite redundant. Everybody here understand perfectly your position, we just reject your conclusions about what the appropriate course of action is.
We’re not arguing law, we’re arguing morals, and I fail to see what you’re thinking us laymen aren’t understanding here. You can keep your contemptuous attitude to yourself.
During voir dire when the DA asks you if you are able to follow the law and send someone who helped a fugitive slave to jail if the case against them were proved, you would commit perjury if you said “yes” but intended to nullify.
Now, you face perjury charges. But, are there circumstances where it would be moral to commit perjury if by doing so you would prevent an even greater injustice? I think so. It seems to me to be moral to risk jail to help a fugitive slave to escape.
However, in almost all cases it is wrong to commit perjury, even aside from the legal risk you might be taking by commiting perjury. And of course, no officer of the court can advise someone to commit perjury. So if you tell your lawyer you’re gonna lie, I believe he’s obligated to try to convince you not to. And if he can’t, and he knows you’re going to commit perjury, he’s obligated to report your crime. Except he can’t, because the communication was priveleged. So he has to withdraw from your case. Except often the judge won’t let him withdraw. And you have the right to testify in your defense, if you chose to. So he’s got to ask the judge to allow you to testify in the narrative, which means he’s telling the judge that he knows you’re planning on committing perjury, but there’s nothing he can do about it, so please don’t disbar him. So the judge lets you take the stand and say whatever you like to the jury, and your lawyer stays out of it completely, and never references your lying testimony in any way later.
The prosecutor could later try to nail you for perjury, but I have no idea how likely that is to actually happen. I suppose the usual rule of thumb is that if you’re convicted the penalty for perjury is just another part of your sentence, and if you’re acquitted it would probably be pretty difficult to prove the perjury anyway…if they had a way to prove you perjured yourself they’d have brought it up in trial to impeach your testimony.
Anyway, long story short, no lawyer can ethically advise you to commit perjury, which is why you’ll never see a lawyer on these boards saying it would be OK to lie to get yourself on a jury to nullify an unjust law. And since any competant prosecutor will ask each jury member if they are capable of enforcing the law as written, you’d pretty much have to perjure yourself to be in a position to nullify a law.
Sometimes it is a persons duty to break the law. To do that in full knowledge that they will then become subject to the law they break and understanding that they will suffer the full penalty for that act. Whether that law is broken in common life, or during jury duty. The jury doesn’t serve the law, and the law does not serve the jury.
Attempting to nullify a jury might not be effective - the person might be retried, without you. Now, a citizen for the most part has not sworn to uphold all laws, so attempting to hide slaves, knowing the penalty if caught, is moral - and a lot more effective than nullification. They are two totally different situations, I think.
There might be an exception if enough people were opposed so that an entire jury would nullify, and get an acquittal. But if that were true, the law could probably be quickly changed.
Unless you bought this board, or became a mod, you will not tell me how to post. If you want to fight, start a pit thread. Maybe I’ll honor it with a response, maybe I won’t.
Also, absent a sea-change in the US political & legal landscape, the Fugitive Slave Act is not likely to be a real issue (just in case any moderator is thinking of closing the thread under the “no furthering illegal acts” rule.