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Even better is the jury could refuse to convict and the question of jury nullification could be taken up by the Supreme Court.

• Godel_unicode 6y ago
  Is there a question of jury nullification?
• JumpCrisscross 6y ago
  > the question of jury nullification could be taken up by the Supreme Court The “question” of jury nullification is a fundamental flaw of the jury system. Legalising it invites mob rule. Directly challenging it undermines the prerogative of a jury. So...we just don’t talk about it. If it were to be solved, it would involve the abolition of the jury system. Which nobody wants.
  • cgriswald 6y ago
    Judges talk about it all the time, usually in less direct language, when they give the jury their instructions. The solution is: judges talk about it, but can't really stop a jury from doing it. I don't think it is accurate to define it as 'mob rule.' Generally, in mob rule, the mob decides who is guilty and punishes them arbitrarily. In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc..) I won't lie to a judge or to anyone in court. But I won't ever convict someone if the death penalty is on the line. I expect to be excused, but if not... That isn't 'mob rule.' That's a power granted to me as a juror by the system. Presidents and Congress have grasped far more power than that without explicitly (and sometimes without even implicitly) being granted that power.
    • JumpCrisscross 6y ago
      > In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc.. Jury nullification is a jury acting on its own accord, without respect to the law. Overruling unjust punishment is the archetype. The Northern jury nullifying Fugitive Slave Act convictions, for instance. The flip side of that coin is Southern juries nullifying lynching convictions. One can make a value judgement on that not being jury nullification, but it's the same mechanism.
      • cgriswald 6y ago
        I remain unconvinced. It is the law that gives juries this power. Can it be used for what you or I consider bad purposes? Sure. But so can any other power granted by the law. It is generally accepted that powers, both explicit and implicit can be used by the government. This includes elected officials and unelected bureaucrats. I see no reason not to extend the same to jurors.
        • JumpCrisscross 6y ago
          > It is the law that gives juries this power. Can it be used for what you or I consider bad purposes? The law grants this power to juries under the premise that they behave objectively. If jury nullification became commonplace, I would expect we'd see calls to join the rest of the world in abolishing popular juries. I think that would be a net loss.
          • cycomanic 6y ago
            Why would it be? I have yet to see a convincing argument that popular juries make better (more just) judgements.
          • tremon 6y ago
            Are you asserting that a jury can never objectively reach a nullifying verdict?
  • vincentmarle 6y ago
    > If it were to be solved, it would involve the abolition of the jury system. Which nobody wants. Well, 90% of the world is doing just fine without the jury system. What is so great about it anyways?
    • aYsY4dDQ2NrcNzA 6y ago
      I haven’t read the Federalist Papers, but I would assume that they touched on the reasons why the right to a jury trial was included in the Constitution.
    • JumpCrisscross 6y ago
      > What is so great about it anyways? It's the sole popular check on the judiciary, the unelected branch of government.
  • FpUser 6y ago
    If I believe that the law as applied to particular case is unjust I would nullify without second thought. Fuck the law if it goes against basic human values. And I am glad that as fucked as US justice system is it still allows for such outcome. At least in theory.
  • tehjoker 6y ago
    It's funny that so much energy is expended talking about how Jury Nullification is a flaw in the system when the courts themselves can simply overrule congress by agreeing with each other due to Marbury vs Madison (which was essentially judicial nullification). While nullification has mostly been used for ill in the past, at least it's a grassroots democratic process. Why should someone be punished if their peers don't think it should be a crime? That's pretty small d democratic, much more so than elections where your vote barely counts.
    • JumpCrisscross 6y ago
      > Marbury vs Madison (which was essentially judicial nullification) Last I checked, juries aren't co-equal with Congress. > Why should someone be punished if their peers don't think it should be a crime? If cases become a matter of selecting your sampling bias, the legal system becomes unpredictable. That, in turn, subverts the rule of law--you no longer know if what you're doing is legal based on the law per se. If jury nullification becomes commonplace, the jury system would need to be revised or thrown out. If you have trouble imagining this, imagine a group you are highly unsympathetic to, now put them in a zip code, now put them on a jury, now write the headlines they rulings would produce.
      • tehjoker 6y ago
        You are right, but I can also imagine the inverse where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency. The unevenness at the local level is problematic, but so is evenness of really bad laws. For example, a jury should feel free to simply dismiss charges brought under the espionage act. I should also point out that nullification was unfortunately mostly used to acquit lynchers. I'm not sure why precisely that only that particular heinous act inspired enough solidarity to nullify the law as opposed to anything good, so historically nullification has been mostly a bad thing.
        • JumpCrisscross 6y ago
          > where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged. The moment you let juries start deciding whether the law is just, versus deciding if a law was broken, you remove the veneer of objectivity that has kept our courts somewhat sacred. It also becomes problematic for lawyers to remove jurists for ridiculous political views, as it becomes a First Amendment issue. Currently, that isn't a problem--your political views don't matter. Only your objectivity does.
  • gameswithgo 6y ago
    mob rules is sometimes the only defense we have against the oligarchy
  • jakeogh 6y ago
    It's not a flaw. The concept of a jury is meaningless without it.
  • krapp 6y ago
    I think the fundamental flaw is failing to recognize that the jury system is intended to be a form of mob rule, and that "jury nullification" should be considered a feature, not a bug.
• cgriswald 6y ago
  A prosecutor can't appeal an acquittal. Jury nullification is only considered in cases where (for instance) judges instruct juries in ways that prohibit them from considering jury nullification and the defendant is found guilty. The reality is jury nullification is here to stay because jurors are not required to explain their findings nor can they be punished for finding things 'wrongly.' Judges, per the SCOTUS, are free to discourage this behavior, but there's nothing to stop it and no imaginable mechanism to even bring such a stoppage to the SCOTUS.
  • elliekelly 6y ago
    I’m not the person you replied to but I believe the “question” of jury nullification they were alluding to was whether or not it can be argued by the defendant. I’m not a criminal lawyer but from what I recall the answer (for lawyers representing defendants, at least) is no. Again, not a criminal lawyer, but I doubt a judge would ever instruct a jury with respect to nullification. It’s not relevant. The role of the jury is fact finder. The function of the jury is not to determine right from wrong or good law from bad law.
    • cgriswald 6y ago
      A judge did and it went to the SCOTUS: https://reason.com/2017/06/20/although-juries-can-acquit-the-guilty-9t/ https://reason.com/2017/06/20/although-juries-can-acquit-the... Quoth the judge: > You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case. On the juries I’ve served the instructions were extremely limiting and there was an implicit “no jury nullification here”, but they were not as direct as the judge in this case.
      • FpUser 6y ago
        One of the things SCOTUS said in regards to this particular case: "While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification." There is also no implied punishment so the judge in case overstepped.
• retrac 6y ago
  For your interest, jury nullification has been addressed directly by the Supreme Court in Canada. They reasoned that a judge does indeed has a duty to stop jury nullification with proper jury instruction, and by preventing council from raising the prospect of nullification to the jury: > It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law" [...] But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so. But as they noted, they also reasoned that jury nullification is an integral and unavoidable part of the system, and that leaving juries the final say on the verdict, without appeal, is the intended effect, as a firestop against government abuse. They also reasoned there's no way to actually address jury nullification, beyond ensuring that the jury is properly instructed, without effectively getting rid of juries altogether. The Canadian cases cite an unusual amount of American and British non-binding precedent (even for the Canadian courts, which tend to borrow freely from other common law jurisdictions when relevant) for their legal reasoning. The legal logic in the Canadian cases closely follows American rulings on jury nullification in the appellate courts, even though it hasn't gone to SCOTUS. The principles and constitutional rights in question are basically identical. I'd be very surprised if the American Supreme Court didn't issue a carbon copy ruling on the topic.