IANAL, but I don’t think this is true. I would be interested to hear if a juror has ever been prosecuted for perjury regarding general statements about their opinions or state of mind (as opposed to false statements of fact such as previous convictions, citizenship, etc.) made during voir dire.
Oakminster, I’d be particularly interested in your take on “it’s legally the crime charged but the charge is so much BS.” For example, New York State some years ago defined burglary as “trespassing within a structure with the intent to commit a crime.” Normally, of course, that crime would be some form of larceny – but that was not specified.
Possession of marijuana was a crime, a misdemeanor. There was an anti-drug D.A. in one county. And one winter, a bunch of teenagers decided to break into cottages closed up for the winter to have pot parties. Unquestionably the misdemeanors of possession of a dangerous drug (the term has since been changed to “controlled substance”) and criminal trespass. But he used the technical definitions of “crime” and “burglary” to charge them all with felony burglary.
Unquestionably he was legally right – what they did, did meet the legal definition of burglary. But would it have been appropriate for a jury to refuse to convict of burglary (going for one or both misdemeanors instead) on the grounds that the charge was disproportionate to the offense? And would this be nullification as you understand it?
Final question: I was given to understand that the jury was indeed judge of the facts – and that it had the privilege of being judge of the law as well, though no one was supposed to so instruct it. Would you care to comment on that?
Note that jury nullification can’t work to give the defendant a steeper penalty than they deserve under the law, nor would it work to give a plaintiff an award they don’t deserve in a civil case.
A judge can set aside a guilty verdict, or give a directed verdict of not guilty. An appeal can get a legally incorrect conviction overturned.
What makes jury nullification possible is that a non-guilty verdict is unreviewable. Jurors don’t have to explain themselves, and once you’ve been found not guilty you can never be prosecuted for the same offense because of the prohibition against double jeopardy. So even if the judge and prosecutor feel that if the jury found a reasonable set of facts and followed the law the law as written there would be no way they could have found the defendant not guilty, there’s nothing that can be done to set aside a not guilty verdict.
If the jury, after considering all of the evidence, felt that it was appropriate to convict on the lesser charge, I wouldn’t consider that nullification. It could be that they felt the State failed to prove the necessary mens rea, or some other element of the felony charge. I see that as being different than a straight “not guilty because we think burglary is a bad law”, which would be nullification.
I’m not familiar with the concept of jury as a judge of law. My understanding has always been that the jury is the finder of fact. Once they reach a verdict, the Judge then applies the law to what the jury has determined actually happened. In a criminal case, the jury usually answers the question of “did the defendant commit the offense charged”? If the answer to that is “yes”, the Judge then imposes sentence according to law. At least in my state, the jury is generally not told what sentence would apply to each charge–except in the penalty phase of a capital case, of course.
I have come back to the thread, bringing pie.
I am, of course, eating it all myself. I’m an asshole, you see. It’s good pie, too. “It’s priest–have a little priest…it’s too good at least.”
Oakminster, assuming you’re an American, surely you realize that our nation was FORMED by armed revolt. And one of the founders’ primary principles was the notion that legitimacy of government comes only by consent of the governed. The law was created for men, not men for the law.
Now, please bear in mind that I’m not in favor of using jury nullification willy-nilly; for the vast, vast majority of cases I’d say it was inappropriate. But I believe in absolute moral responsibility–that is, I cannot escape responsibility for my acts merely because they are mandated by the law. I’m a situational ethicist–which does NOT mean that I don’t believe in law, but rather that I believe I must assess the morality of any action I take based on the circumstances surrounding it, which includes the foreseeable consequences of my act.
Take the examples I gave earlier. In the case of the grieving parent who killed his child’s rapist/murderer, I’d say that enforcing the law is still in service to the good, because the prohibition against murder is inherently just, and because it is extremely risky to create exceptions for personal vengeance; it is foreseeable that doing so will encourage more vengeance killings, inevitably including ones for which I have less sympathy. In that case I would feel obliged to vote for the verdict as the law and facts dictate, leaving mercy for the sentencing phase.
But the Fugitive Slave Act is a whole 'nother mess of greens. Its purpose is more than simply unjust or corrupt; it is actively evil. By passing such a law, the state forfeits any legitimate authority to enforce it (though not all laws). The foreseeable consequence of adhering to the terms of the FSA is the unjust enslavement of the specific fugitive slave who is being apprehended, and the encouragement of the evil of slavery in general. If I lived during such a time that it was a real issue, then I’d say that my moral duty far, far outweighs my legal obligation in this circumstances; not only would I be justified in working for jury nullification in such a case, I would be justifiably condemned if I did anything to uphold that law.
Oakminster, are there any circumstances under which you would knowingly and intentionally violate a law? Is it simply being democratic in origin that gives the law its legitimacy in your eyes, or would you feel similarly obliged to follow unjust laws if you lived under tyranny? If you lived in New York in 1852 and knew of a Methodist minister harboring escaped slaves, would you turn him in? If you were a magistrate faced with the choice of returning a slave to his putative “owner,” would you do so?
Having just served as the foreman of a jury, I’m well aware of this. The second trial is unlikely to include someone who would try to nullify the decision. Yes, if everyone on a jury voted to acquit despite the defendant being clearly guilty under the law, and if this happened often enough, it would indicate strong public opposition to a law - at least in a region. That’s very different from just one person doing this.
Thus, nullification is unlikely to be an effective means in causing change. You’d have to be on the right case, at the right time, and have the case be important enough to try but not important enough to retry. This is unlikely.
In jury duty you’re not forced to be part of the process. My objection to nullification is saying you can vote for conviction when in fact you cannot. If no one asked me my opinion of a controversial law I was considering, I’d have much less trouble trying to find a way to vote against conviction, even if I thought the evidence is for it. If I never promised not to be biased, I’d feel a lot better being biased. This assumes there is no penalty for telling the truth about your opinions.
On the other hand, Oakminster, do you really believe the Freedom Riders were wrong for refusing to follow the rules of segregation? I’m not talking about willingness to pay the penalty, which they were willing to do, I’m talking about morality.
There are a couple of states in which the jury is the finder of the law and the facts. In practice, the case law has limited this Constitutional provision to mean the opposite of what it says. In Georgia (where I used to live) the Constitution says that in criminal cases, the “jury shall be the judges of the law and the facts”.
It makes for interesting charge conferences now and again. But you can’t get a nullification charge. Best you can get is to get the judge to charge that provision and hope somebody on the jury gets it.
I am entertained by the notion of jury nullification in theory. In practice, I think it happens all the time, and I think it has an effect on prosecutorial decisions as well. (Though not as often as I might have liked.)
Truthfully, my thoughts on it are rather like my thoughts on black markets of various kinds – it seems to be necessary to have a certain amount of, er, looseness built into a system lest it die of the grinding of its own wheels. Think of it as axle grease. It is necessary that the System and everyone involved in it be entirely, systematically opposed to such a thing and limit it as much as possible. Still, there are times when it is not only the subversive thing to do but also the right thing to do. Not to change society or the law; but in an individual case, involving an individual person. Which is also what a jury is for, is it not?
Don’t think I can honestly say that there are no circumstances under which I would intentionally commit a crime, but it would take extreme provocation. By doing so, I’d essentially be forfeiting my license to practice law, which I put a lot of effort (and money spent for law school) to obtain, and is pretty much my only marketable skill. I’m not going to throw that away on a whim. I’m also not a person to lightly violate an oath I’ve freely taken.
I find it difficult to speculate how I might react if I lived in tyranny. I suspect that under such a regime, I wouldn’t be a lawyer in the first place. If I weren’t a lawyer, I would not be bound by the oath I took to be admitted to the bar. From whence does law derive legitimacy? Not sure I’m qualified to answer. That seems more a question for a philosopher than a lawyer.
If the minister in 1852 sought my advice, anything he told me would be privileged. Not only would I not turn him in, I would assert the privilege and refuse to testify against him. Not sure exactly what I’d do in a judicial role if required to enforce a law I found repugnant. It’s difficult to apply modern sensibillities back to a time with very different social conditions. The easiest solution would be to recuse myself from the case–something judges can do if they are unable to decide something without bias. Failing that, I could resign from the bench. It would be a major hit to my career, and possibly impose great hardship on my family–assuming I had one. Then again, it would not be the first time I walked away from money because of principle.
Pretty sure I’ve already answered a similar question. Understand that I am not allowed to advise a person to engage in unlawful activity. I am allowed to defend a person charged with a crime. I am also allowed to choose whether to provide said defense at little or no cost to the defendant.
I don’t want to say that morality and law are mutually exclusive, but I think in terms of law. It’s what I do for a living. Murder is a horrible crime–yet a murderer is entitled to the assistance of counsel. Said counsel is required to use his best efforts, within the bounds of law and ethics, to see that the Defendant’s rights are protected and the Defendant recieves a fair trial. Note that Counsel is not, contrary to popular belief, required to get his client acquited at all costs. The ethics of Defense Counsel may be a suitable topic for another thread. Let’s just say I no longer handle criminal cases, and I really don’t miss that line of work.
I didn’t ask if you would do it - I could appreciate that an attorney might be more useful in court than in jail. And my question was purely historical - whatever problems we still have, segregation of public transport is no longer one. But if you feel that answering this question is unethical, I understand.
I just sat through a trial where I saw an attorney defend a lying loser lowlife. I hope he got paid enough - I certainly didn’t think less of him for it, and told his partner after our decision that I thought he did a good job (in my untrained opinion) under difficult circumstances. We have a situation where people accused of things are not getting legal representation, and the country is not better off for it.
As you point out, nullification arises from the basic properties of the jury system. More precisely, it arises from the prohibition against holding jurors to account for their verdict (the bar against double jeopardy is less significant – without that, nullification would be less effective, but would still make it more difficult to obtain convictions when a sigificant fraction of the jury pool refused to convict).
Thus, nullification cannot be prohibited short of a Constitutional amendment – making jurors accountable for their verdicts would undermine the institution of trial by jury so severely that it would effectively abolish that right.
That said, I would consider myself fully justified to engage in nullification in cases where the law itself is illegal (e.g. a law that is clearly un-Constitutional, though perhaps having been found otherwise in some bit of judicial activism).
Given that jury nullification itself cannot be removed without effectively abolishing trial by jury (see previous message), that is an argument in favor of clear nullification instructions. Jurors might still abuse their power, but it would be less likely, which is really all that one can hope for in the end.
I view jury nullification as another implicit check and balance in the Constitution, similar to the judicial branch’s nullification of an unconstitional law. The Constitution doesn’t explicitly give the Supreme Court the power to nullify laws, but since the courts are a necessary part of enforcement, if they refuse to support a law, that’s the end of it.
Likewise, juries are not explicitly given nullification power, but since they are a necessary component of law enforcement, the power is there. It is a check against the state enforcing an unpopular law (and this can be good or bad).