11 ms·

Jurors Need to Know That They Can Say No

353 points by ddlatham 15y ago

Qo 15y ago
I'm a little disappointed that the article doesn't mention a serious practical impediment to nullification - the "voir dire" process of juror selection. They ask you a series of questions, one of them usually being "Will you apply the law as I explain it to you?" You are 100% within your rights to answer no - they'll excuse you from the jury. If you say "yes", however, but you mean "no", then you have committed perjury. You won't get caught if you're crafty about it, but it's still a relevant detail. A more accurate title might have been: "People can do whatever they want as long as they're OK going to jail if they get caught"
- eridius 15y ago
  Wouldn't it only be perjury if you had already decided to nullify when you were asked the question?
  - Qo 15y ago
    Probably. If they charge you, are you comfortable with that as your defense?
    - Cadsby 15y ago
      Very unlikely this would occur. Jury deliberations are considered sacrosanct in American jurence prudence. You are under no obligation to explain your reasoning to anyone when deciding a verdict. And courts have been traditionally very wary of allowing prosecutors to delve too deeply into them to go on fishing expeditions unless a very specific procedure has been shown to have been violated. The prosecution would essentially have to read your mind to demonstrate that you somehow "lied" in answering the questions during jury selection, which is why what you're describing virtually never happens. And there's always the plausible defense that you simply changed your mind as the trial unfolded.
      - Qo 15y ago
        This sounds reasonable - but doesn't refute my main point - that nullification, while not a criminal act, can often not be applied without first committing a separate criminal act, and that one should be aware of this fact and take appropriate precautions.
- ChuckMcM 15y ago
  I answered that I would be willing to vote guilty if the law and the facts supported such a verdict. This is absolutely true, and I am free to nullify (without having lied) if I find the law doesn't support such a verdict. I'm wondering though what happened to the guy in NY (came to the comments here hoping someone had tracked that down). He was arraigned in Feb of this year.
  - Qo 15y ago
    Interesting. I'm not a lawyer, but doesn't the fact that the law doesn't support a certain verdict obviate the need for nullification?
- gnaritas 15y ago
  > They ask you a series of questions, one of them usually being "Will you apply the law as I explain it to you?" I've done jury duty, they ask me no such thing.
rockLAWbster 15y ago
Hopefully, Congress will pay attention. Convicting a single citizen for non-violent crimes in general are clogging up our jail system. Jury nullification is a clever workaround until the sentencing laws change. This keeps the ultimate power in the hands of the people.
unoti 15y ago
When the shabby old man is put on trial for jury tampering, shouldn't a jury of his peers find him not guilty? The deliberation on that trial could be very interesting. Or very difficult because the judge won't let the defendant's counsel say anything. Or both.
- gwern 15y ago
  Court-appointed counsel isn't known for its quality, and when your own lawyer is apparently contemptuous of jury nullifications ("silly leaflets"), it's not looking too good.
  - dfxm12 15y ago
    I don't think the lawyers are implying that they are contemptuous of jury nullification with this strategy. I think they are trying to downplay the impact of the leaflets, playing their client off as a goofy old man with silly ideas that everyone would ignore like a beggar.
    - redthrowaway 15y ago
      I imagine a good lawyer would argue both that the leaflets were harmless, and that it was constitutionally protected speech, as a way of covering all angles.
      - MaysonL 15y ago
        And I would also hope that his lawyer(s) will get the leaflets entered into evidence, so that the jury can read them.
  - bhousel 15y ago
    Guy should dismiss his counsel and go pro se. 99% of the time I'd say that's a crazy idea, but in this situation I'm not so sure...
- andylei 15y ago
  > shouldn't a jury of his peers find him not guilty that depends on whether or not he is guilty of jury tampering. wikipedia says that it is "attempting to influence the composition and/or decisions of a jury during the course of a trial". i don't have all the details, but it sounds kind of like that's exactly what that guy is trying to do.
colanderman 15y ago
"Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case." I don't get it; jurors are selected based on how they claim will decide? That's all kinds of messed up.
- atourgates 15y ago
  Well - kind of. The idea is to find jurors as close to the "impartial" ideal as possible. So - if a murder case is being tried - and someone whose family member is a murder victim is called to the jury - they're probably not a great impartial arbiter in that case. It's called Vior dire, and certainly not unique to the United States: http://en.wikipedia.org/wiki/Jury_selection#Voir_dire http://en.wikipedia.org/wiki/Jury_selection#Voir_dire
- SeveredCross 15y ago
  Jurors are selected based on all sorts of things. You'll find that jurors with higher education are often eliminated (prosecutors hate educated jurors, they tend to be harder to convince), jurors with law experience (even if it's as simple as a law class in high school) also tend to be eliminated, because they know at least a little something about standards of proof and nullification, etc. The list of things that you can be eliminated for by either the judge or one of the attorneys (who get a limited number [3, I think] of eliminations) is staggering.
- adestefan 15y ago
  Juries are to be impartial and decide only upon the evidence that is put forth by the prosecutor and defendant as it relates to the charges and the law that defines those charges. If a juror states up front that they'll vote one way or another, without hearing the evidence, based on some prejudice then they will be disqualified.
  - colanderman 15y ago
    Juries are to be impartial But selecting juries based on that trait (or any trait for that matter) is in direct conflict with one's right to trial by a jury of his peers (presumably defined as the general populace). Once you predicate the selection process, you skew a uniform sampling of "peers" and the jurors selected are no longer representative of one's "peers". (Not arguing, just trying to understand.)
deleted 15y ago
[deleted]
- andrewla 15y ago
  I mean, it's not even halfway through the article: "There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else."
- burgerbrain 15y ago
  These aren't issues with nullification, they are issues with the "jury of your peers" system in general. Of course that, like democracy, is often deemed to be off limits for criticism simply because a few hundred years ago we agreed it was the best idea around.
  - karamazov 15y ago
    Do you have an example of a better idea?
    - burgerbrain 15y ago
      Suggestions need not come in the form of fully formed plans. However the public is largely not open to suggestions for incremental improvements. An easy improvement to the jury system would be to ensure all jurors are aware of the relevant rules. For example, they should all be aware that nullification is a legal option. Related to this, the system by which jurors are selected needs an overhaul so heavy that we might as well scrap the current system.
    - MaysonL 15y ago
      Here's one: choose our legislatures like we choose our jurys.
dreeves 15y ago
Ooh, I got kicked off a grand jury a couple years ago for telling my fellow jurors about jury nullification. I pointed them to this etherpad -- http://padm.us/jury http://padm.us/jury -- where I was researching the question. I wasn't even sure at the time what the right answer was. I'm now very much pro-nullification.
- naner 15y ago
  I pointed them to this etherpad [...] where I was researching the question. I wasn't even sure at the time what the right answer was. Was this after you were selected to serve on the jury? They usually make it pretty clear that you are not permitted to do outside research on the case or the laws in question. Also if jury nullification is important to the defendant's case then it would be the job of their attorney to make sure the jury is aware of that choice.
  - Natsu 15y ago
    > Also if jury nullification is important to the defendant's case then it would be the job of their attorney to make sure the jury is aware of that choice. They're not allowed to inform you in most states, as I understand it. I think, however, that there are one or two states which are exceptions in that regard and say something about jurors having the final say in their jury instructions, but it's been quite a while since I've read up on this.
  - nknight 15y ago
    > They usually make it pretty clear that you are not permitted to do outside research on the case or the laws in question. Grand juries operate under vastly different rules and assumptions, and for very different (and varying) purposes, than petit (trial) juries. The role of a grand jury has been anything from a limited sanity check on prosecutors all the way to an autonomous body empowered to investigate all aspects of governance in their jurisdiction. There have even been grand juries that were long treated as rubber stamps for prosecutors, but found the laws of their state envisioned much more, went "rogue", and started bringing down corrupt politicians, prosecutors, judges, etc..
- 15y ago
impendia 15y ago
I served as a juror on a ten week murder trial, and one thing I learned (to my extreme exasperation) is that you can't ask questions. I mean, you can ask, but every time I asked anything the judge gave some roundabout non-answer, and it was obvious that she was required to do so. In particular, the verdict hinged on some technicalities, and we got about 40 pages explaining the law. I attempted to clarify the exact meaning, but in the end eleven others and I were forced to decide for ourselves.
- MPSimmons 15y ago
  I've wondered before why, after the prosecution and defense lawyers are done with a witness, the jury can't also question the witness. Can anyone help me understand why that's not allowed?
  - mukyu 15y ago
    http://en.wikipedia.org/wiki/Adversarial_system http://en.wikipedia.org/wiki/Adversarial_system http://en.wikipedia.org/wiki/Inquisitorial_system http://en.wikipedia.org/wiki/Inquisitorial_system
  - JVirissimo 15y ago
    Because the law was written by lawyers?
- bermanoid 15y ago
  In particular, the verdict hinged on some technicalities, and we got about 40 pages explaining the law. I attempted to clarify the exact meaning, but in the end eleven others and I were forced to decide for ourselves. There's good motivation for this: the jury's job (in a criminal case, at least) is to decide whether or not the prosecution has proved beyond a reasonable doubt that the defendant is guilty of the charge in question. Not to determine if that fact could be established by a more competent prosecution. Step one in proving that someone has broken the law is making sure that the jury understands the details of the law well enough to understand the accusation, including (and in particular!) any technicalities that might be involved. If the prosecution hasn't done that, then there's plenty of reasonable doubt to be found, and that's a crystal clear "not guilty".
squozzer 15y ago
I would suggest to anyone interested in the topic to read The Trial of John Peter Zenger. It represents an extreme case of judicial process manipulation that would have been very difficult to defeat without the help of a sympathetic jury. As the Joe Fridays of the world are very eager to point out, nullification DOES subvert the rule of law. So I don't support its' use for every situation. But bad laws and rigged justice also undermine the rule of law -- we still have bad laws (drug offenses, generally) and rigged justice (the Duke lacrosse team case, more of an attempt at rigged justice) even today. That said, nullification is not that powerful of a threat to the system, because the system has ways of dealing with partiality such as voir dire, change of venue, rules of evidence. The lengths NY state is going to silence free speech and enforce the "blinders of fact" principle seem a little extreme. Just remember -- the law is meant to serve the people, not the other way around.
- scarmig 15y ago
  The big issue I see with nullification is that, once you grant it is justified unjust laws, you make it so that any law can be nullified in a given case, depending on the particular jury selected. Good! you might say. But now imagine you're in the rural South, trying a case of what was effectively a lynching. If you say that jurors can ignore the facts of the case and the law, no matter how much evidence you offer that a particular person is a murderer, they can ignore it for white supremacy. This is on top of issues about fairness and equal application of the law. Whether and how much you're punished would vary even more depending on the makeup of the jury, even if the crime is the exact same.
  - Jtsummers 15y ago
    If a defense attorney succeeded in filling the jury with white supremacists I suspect the case would be thrown out earlier and retried.
  - randallsquared 15y ago
    Either position will produce at least some viscerally unpleasant situations. http://en.wikipedia.org/wiki/Hard_cases_make_bad_law http://en.wikipedia.org/wiki/Hard_cases_make_bad_law
tvon 15y ago
> But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else. It has been my impression that we increasingly live in a world where rights can be taken away from the many to deter abuse by the few.
estevez 15y ago
This article makes me want to take a trip to Kinkos.
tsotha 15y ago
I understand why people wouldn't want to be part of the system that punishes people for something the juror doesn't think should be illegal. But it isn't your job, as a juror, to write the laws. The honorable thing to do is to answer truthfully when they ask you if you can apply the law in the case you've been assigned. Having said that, let me say I think prosecuting a guy for handing out nullification leaflets is a gross abuse of power.
- burgerbrain 15y ago
  You realize that jury nullification is a legal part of the system right? "But it isn't your job, as a juror, to write the laws." might be what a judge tells a jury, but that doesn't make it true.
- acabal 15y ago
  But that's what (correct me if I'm wrong) nullification is for: to allow the jury as a unit an independent mind, and to not force them to enforce laws they believe to be unjust. Their job is definitely not to write laws, but the founding fathers seemed to think part of their job was also--to a limited extent--another check and balance against the system.
- sophacles 15y ago
  Remember, a central idea in the Constitution is a balance of power, often called "a system of checks and balances". Much like the 2nd Amendment, the jury system is partly about preventing the government from taking too much power from the people. Deciding if a law was broken is part of it, true, but there are other aspects. For example one of the reasons for the jury is to decide if mitigating circumstances or evidence are valid enough that a violation of the letter of the law is still acceptable. A bad or unjust law is definitely a mitigating circumstance. You frequently see people put behind bars or otherwise punished for absurd violations of absurd laws, which even the members of the jury find stupid, because they are told that their opinion of the law doesn't count, even when the law is obviously being applied in an unfair or power grabbing way. Jury nullification is a powerful tool against such abuse and absurdity. Finally, look into the tenets of the common law system, upon which the US legal system is built. It is surprisingly enlightening, and will probably piss you off a bit at how things are currently being done (alternately, that we having fully purged it depending on your base mindset I guess :) ).
cynicalkane 15y ago
Jury nullification is typically portrayed as a defense against unjust laws, and some judicial thinkers see it that way. But it's important to point out the dominant view and the current view of jurisprudence views jury nullification as kind of an unfortunate edge case. Here's the Fourth Circuit from 1969: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision." In other words, jury nullification is not a defense against injustice, but a side effect of having trials by an independent jury of ordinary citizens.
- rada 15y ago
  The very first thing that wikipedia says about jury nullification paints it as much more than "an unfortunate edge case": A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops [...] it can have the de facto effect of invalidating the statute. A pattern of jury nullification may indicate public opposition to an unwanted legislative enactment.
  - jessriedel 15y ago
    Wikipedia and cynicalkane aren't conflicting. cynicalkane is making a claim about why nullification exists. (It is impossible to prohibit nullification without also giving courts the power to ignore jury decisions based on what they think is in the jurors' heads.) Wikipedia is making a claim about the effect of nullification. (Nullification can effectively repeal laws, a very powerful consequence.)
- JoshTriplett 15y ago
  In the opinion of a court, which would rather not recognize the concept at all. Courts hold a dim opinion of jury nullification, going so far as to legally sanction mentions of it in a courtroom, and to provide "instructions" to the jury that try to expressly prohibit them from considering anything other than whether the facts of the case meet the law as explained to them. Even hinting that you might understand the concept will get you thrown off a jury. In some cases, bringing up the concept during jury deliberations will result in a mistrial. Personally, I like the way the state of Oregon handles the issue. Quoting the Oregon constitution, article I, section 16: "In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial". That said, I don't know whether in practice Oregon courts do any better about not censuring jury nullification.
tzs 15y ago
Suppose just 5% of the potential jurors believe, say, that it should not be illegal to kill an abortion doctor, or to beat up someone who dares to be homosexual in public, or to beat up someone who dares to flirt with a white woman while being black, and so on. If you have a jury of 12 and require a unanimous verdict for conviction, then 46% of randomly chosen juries will not convict people for the aforementioned crimes no matter what the evidence, because they will include at least one person who believes those acts should not be criminal. That spits in the face of the notion of equal justice for all. You and I commit a crime together, but have separate trials. The evidence is the same for both of us, but one of us is convicted and one not, because one of us happened to get one of those 5% who thinks stomping blacks or gays who get out line is OK. Ugh. Another big problem is that once you tell jurors they can ignore the law in order to acquit, they will figure out they can also ignore the law in order to convict. Bogus convictions won't be as frequent as bogus acquittals, but there will be some. (And you can't count on the judge throwing out the conviction in those cases, because the judge won't be able to distinguish those convictions from those where the jury simply believed the prosecution's evidence and witnesses over the defendant's evidence and witnesses). Our system is designed around checks and balances. How do you provide checks and balances for the nullification power? The only one that anyone has been able to come up with is to not tell the jury about it. That way, it only gets used in cases where some juror recognizes that not only would there be an injustice in applying the law to the case at hand, but that there has been a breakdown of the system making it so that this injustice will not be addressed elsewhere, so that the juror decides that even though he has sworn to uphold the law, he must break that oath. Nullification is almost never appropriate for a marijuana case. Even though I think marijuana should be legal, and I know all about nullification, I would never use it there at this time, simply because the system has NOT broken down in this area. Want to stop people from getting convicted of marijuana crimes? Then elect legislators who will decriminalize marijuana.
- onemoreact 15y ago
  Nullification is balanced around the hung jury process. http://en.wikipedia.org/wiki/Hung_jury http://en.wikipedia.org/wiki/Hung_jury If a jury can't decide in some time frame the judge can decide to end the trial without a verdict and enable a new trial to occur. Your constitutional protection vs multiple tryals only occurs after a jury has said not guilty it does not apply when a jury can't decide on a verdict. PS: In the US In the United States, the result is a mistrial, and the case may be retried. Some jurisdictions permit the court to give the jury a so-called Allen charge, inviting the dissenting jurors to re-examine their opinions, as a last ditch effort to prevent the jury from hanging. The Federal Rules of Criminal Procedure state, "The verdict must be unanimous...If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed...If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed...If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree."[7]
nottwo 15y ago
I kept waiting for the author to mention the Fully Informed Jury Association. I somehow stumbled upon their website over ten years ago and first heard of jury nullification. It's awesome they're still at it. http://fija.org/ http://fija.org/
patrickgzill 15y ago
Chief Justice Oliver Wendell Holmes, Jr.: "The jury has the power to bring a verdict in the teeth of both the law and the facts." John Jay (first Chief Justice): "The jury has a right to judge both the law as well as the fact in controversy." Justice Byron White: "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority." Thought these quotes should be in here ...
ChuckMcM 15y ago
Some better followup on the case so far: http://www.economist.com/blogs/democracyinamerica/2011/11/free-speech-and-jury-nullification http://www.economist.com/blogs/democracyinamerica/2011/11/fr...
wkral 15y ago
Does anyone know if there is a similar law about jury nullification in Canada? I hear about a lot of these little known facts about the law but they're usually US centric.
brohee 15y ago
http://www.economist.com/blogs/democracyinamerica/2011/11/free-speech-and-jury-nullification http://www.economist.com/blogs/democracyinamerica/2011/11/fr... on the same subject. I did post it here at the time but it didn't pick up steam...
_corbett 15y ago
my high school american studies teacher would recommend stating "I firmly believe in the right of jury nullification" to get out of jury duty–he was of the opinion that jurors who voiced their awareness of this right were almost never selected. I'd be curious to know if this was actually true
coolestuk 15y ago
In Britain jurors can ask questions of witnesses and the accused. At the end of a trial day, the judge will ask if the jury has any questions. When I was on a 3 week trial, I had a page-full of questions every day. I identified issues that both the judge and prosecuting counsel missed.
anamax 15y ago
Every objection to jury nullification also applies to prosecutorial discretion yet none of the folks objecting to JN object to PD.

353 points by ddlatham 15y ago

Qo 15y ago

I'm a little disappointed that the article doesn't mention a serious practical impediment to nullification - the "voir dire" process of juror selection. They ask you a series of questions, one of them usually being "Will you apply the law as I explain it to you?" You are 100% within your rights to answer no - they'll excuse you from the jury. If you say "yes", however, but you mean "no", then you have committed perjury. You won't get caught if you're crafty about it, but it's still a relevant detail. A more accurate title might have been: "People can do whatever they want as long as they're OK going to jail if they get caught"

eridius 15y ago
Wouldn't it only be perjury if you had already decided to nullify when you were asked the question?
- Qo 15y ago
  Probably. If they charge you, are you comfortable with that as your defense?
  - Cadsby 15y ago
    Very unlikely this would occur. Jury deliberations are considered sacrosanct in American jurence prudence. You are under no obligation to explain your reasoning to anyone when deciding a verdict. And courts have been traditionally very wary of allowing prosecutors to delve too deeply into them to go on fishing expeditions unless a very specific procedure has been shown to have been violated. The prosecution would essentially have to read your mind to demonstrate that you somehow "lied" in answering the questions during jury selection, which is why what you're describing virtually never happens. And there's always the plausible defense that you simply changed your mind as the trial unfolded.
    - Qo 15y ago
      This sounds reasonable - but doesn't refute my main point - that nullification, while not a criminal act, can often not be applied without first committing a separate criminal act, and that one should be aware of this fact and take appropriate precautions.
ChuckMcM 15y ago
I answered that I would be willing to vote guilty if the law and the facts supported such a verdict. This is absolutely true, and I am free to nullify (without having lied) if I find the law doesn't support such a verdict. I'm wondering though what happened to the guy in NY (came to the comments here hoping someone had tracked that down). He was arraigned in Feb of this year.
- Qo 15y ago
  Interesting. I'm not a lawyer, but doesn't the fact that the law doesn't support a certain verdict obviate the need for nullification?
gnaritas 15y ago
> They ask you a series of questions, one of them usually being "Will you apply the law as I explain it to you?" I've done jury duty, they ask me no such thing.

rockLAWbster 15y ago

Hopefully, Congress will pay attention. Convicting a single citizen for non-violent crimes in general are clogging up our jail system. Jury nullification is a clever workaround until the sentencing laws change. This keeps the ultimate power in the hands of the people.

unoti 15y ago

When the shabby old man is put on trial for jury tampering, shouldn't a jury of his peers find him not guilty? The deliberation on that trial could be very interesting. Or very difficult because the judge won't let the defendant's counsel say anything. Or both.

gwern 15y ago
Court-appointed counsel isn't known for its quality, and when your own lawyer is apparently contemptuous of jury nullifications ("silly leaflets"), it's not looking too good.
- dfxm12 15y ago
  I don't think the lawyers are implying that they are contemptuous of jury nullification with this strategy. I think they are trying to downplay the impact of the leaflets, playing their client off as a goofy old man with silly ideas that everyone would ignore like a beggar.
  - redthrowaway 15y ago
    I imagine a good lawyer would argue both that the leaflets were harmless, and that it was constitutionally protected speech, as a way of covering all angles.
    - MaysonL 15y ago
      And I would also hope that his lawyer(s) will get the leaflets entered into evidence, so that the jury can read them.
- bhousel 15y ago
  Guy should dismiss his counsel and go pro se. 99% of the time I'd say that's a crazy idea, but in this situation I'm not so sure...
andylei 15y ago
> shouldn't a jury of his peers find him not guilty that depends on whether or not he is guilty of jury tampering. wikipedia says that it is "attempting to influence the composition and/or decisions of a jury during the course of a trial". i don't have all the details, but it sounds kind of like that's exactly what that guy is trying to do.

colanderman 15y ago

"Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case." I don't get it; jurors are selected based on how they claim will decide? That's all kinds of messed up.

atourgates 15y ago
Well - kind of. The idea is to find jurors as close to the "impartial" ideal as possible. So - if a murder case is being tried - and someone whose family member is a murder victim is called to the jury - they're probably not a great impartial arbiter in that case. It's called Vior dire, and certainly not unique to the United States: http://en.wikipedia.org/wiki/Jury_selection#Voir_dire http://en.wikipedia.org/wiki/Jury_selection#Voir_dire
SeveredCross 15y ago
Jurors are selected based on all sorts of things. You'll find that jurors with higher education are often eliminated (prosecutors hate educated jurors, they tend to be harder to convince), jurors with law experience (even if it's as simple as a law class in high school) also tend to be eliminated, because they know at least a little something about standards of proof and nullification, etc. The list of things that you can be eliminated for by either the judge or one of the attorneys (who get a limited number [3, I think] of eliminations) is staggering.
adestefan 15y ago
Juries are to be impartial and decide only upon the evidence that is put forth by the prosecutor and defendant as it relates to the charges and the law that defines those charges. If a juror states up front that they'll vote one way or another, without hearing the evidence, based on some prejudice then they will be disqualified.
- colanderman 15y ago
  Juries are to be impartial But selecting juries based on that trait (or any trait for that matter) is in direct conflict with one's right to trial by a jury of his peers (presumably defined as the general populace). Once you predicate the selection process, you skew a uniform sampling of "peers" and the jurors selected are no longer representative of one's "peers". (Not arguing, just trying to understand.)

deleted 15y ago

[deleted]

andrewla 15y ago
I mean, it's not even halfway through the article: "There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else."
burgerbrain 15y ago
These aren't issues with nullification, they are issues with the "jury of your peers" system in general. Of course that, like democracy, is often deemed to be off limits for criticism simply because a few hundred years ago we agreed it was the best idea around.
- karamazov 15y ago
  Do you have an example of a better idea?
  - burgerbrain 15y ago
    Suggestions need not come in the form of fully formed plans. However the public is largely not open to suggestions for incremental improvements. An easy improvement to the jury system would be to ensure all jurors are aware of the relevant rules. For example, they should all be aware that nullification is a legal option. Related to this, the system by which jurors are selected needs an overhaul so heavy that we might as well scrap the current system.
  - MaysonL 15y ago
    Here's one: choose our legislatures like we choose our jurys.

dreeves 15y ago

Ooh, I got kicked off a grand jury a couple years ago for telling my fellow jurors about jury nullification. I pointed them to this etherpad -- http://padm.us/jury http://padm.us/jury -- where I was researching the question. I wasn't even sure at the time what the right answer was. I'm now very much pro-nullification.

naner 15y ago
I pointed them to this etherpad [...] where I was researching the question. I wasn't even sure at the time what the right answer was. Was this after you were selected to serve on the jury? They usually make it pretty clear that you are not permitted to do outside research on the case or the laws in question. Also if jury nullification is important to the defendant's case then it would be the job of their attorney to make sure the jury is aware of that choice.
- Natsu 15y ago
  > Also if jury nullification is important to the defendant's case then it would be the job of their attorney to make sure the jury is aware of that choice. They're not allowed to inform you in most states, as I understand it. I think, however, that there are one or two states which are exceptions in that regard and say something about jurors having the final say in their jury instructions, but it's been quite a while since I've read up on this.
- nknight 15y ago
  > They usually make it pretty clear that you are not permitted to do outside research on the case or the laws in question. Grand juries operate under vastly different rules and assumptions, and for very different (and varying) purposes, than petit (trial) juries. The role of a grand jury has been anything from a limited sanity check on prosecutors all the way to an autonomous body empowered to investigate all aspects of governance in their jurisdiction. There have even been grand juries that were long treated as rubber stamps for prosecutors, but found the laws of their state envisioned much more, went "rogue", and started bringing down corrupt politicians, prosecutors, judges, etc..
15y ago

impendia 15y ago

I served as a juror on a ten week murder trial, and one thing I learned (to my extreme exasperation) is that you can't ask questions. I mean, you can ask, but every time I asked anything the judge gave some roundabout non-answer, and it was obvious that she was required to do so. In particular, the verdict hinged on some technicalities, and we got about 40 pages explaining the law. I attempted to clarify the exact meaning, but in the end eleven others and I were forced to decide for ourselves.

MPSimmons 15y ago
I've wondered before why, after the prosecution and defense lawyers are done with a witness, the jury can't also question the witness. Can anyone help me understand why that's not allowed?
- mukyu 15y ago
  http://en.wikipedia.org/wiki/Adversarial_system http://en.wikipedia.org/wiki/Adversarial_system http://en.wikipedia.org/wiki/Inquisitorial_system http://en.wikipedia.org/wiki/Inquisitorial_system
- JVirissimo 15y ago
  Because the law was written by lawyers?
bermanoid 15y ago
In particular, the verdict hinged on some technicalities, and we got about 40 pages explaining the law. I attempted to clarify the exact meaning, but in the end eleven others and I were forced to decide for ourselves. There's good motivation for this: the jury's job (in a criminal case, at least) is to decide whether or not the prosecution has proved beyond a reasonable doubt that the defendant is guilty of the charge in question. Not to determine if that fact could be established by a more competent prosecution. Step one in proving that someone has broken the law is making sure that the jury understands the details of the law well enough to understand the accusation, including (and in particular!) any technicalities that might be involved. If the prosecution hasn't done that, then there's plenty of reasonable doubt to be found, and that's a crystal clear "not guilty".

squozzer 15y ago

I would suggest to anyone interested in the topic to read The Trial of John Peter Zenger. It represents an extreme case of judicial process manipulation that would have been very difficult to defeat without the help of a sympathetic jury. As the Joe Fridays of the world are very eager to point out, nullification DOES subvert the rule of law. So I don't support its' use for every situation. But bad laws and rigged justice also undermine the rule of law -- we still have bad laws (drug offenses, generally) and rigged justice (the Duke lacrosse team case, more of an attempt at rigged justice) even today. That said, nullification is not that powerful of a threat to the system, because the system has ways of dealing with partiality such as voir dire, change of venue, rules of evidence. The lengths NY state is going to silence free speech and enforce the "blinders of fact" principle seem a little extreme. Just remember -- the law is meant to serve the people, not the other way around.

scarmig 15y ago
The big issue I see with nullification is that, once you grant it is justified unjust laws, you make it so that any law can be nullified in a given case, depending on the particular jury selected. Good! you might say. But now imagine you're in the rural South, trying a case of what was effectively a lynching. If you say that jurors can ignore the facts of the case and the law, no matter how much evidence you offer that a particular person is a murderer, they can ignore it for white supremacy. This is on top of issues about fairness and equal application of the law. Whether and how much you're punished would vary even more depending on the makeup of the jury, even if the crime is the exact same.
- Jtsummers 15y ago
  If a defense attorney succeeded in filling the jury with white supremacists I suspect the case would be thrown out earlier and retried.
- randallsquared 15y ago
  Either position will produce at least some viscerally unpleasant situations. http://en.wikipedia.org/wiki/Hard_cases_make_bad_law http://en.wikipedia.org/wiki/Hard_cases_make_bad_law

tvon 15y ago

> But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else. It has been my impression that we increasingly live in a world where rights can be taken away from the many to deter abuse by the few.

estevez 15y ago

This article makes me want to take a trip to Kinkos.

tsotha 15y ago

I understand why people wouldn't want to be part of the system that punishes people for something the juror doesn't think should be illegal. But it isn't your job, as a juror, to write the laws. The honorable thing to do is to answer truthfully when they ask you if you can apply the law in the case you've been assigned. Having said that, let me say I think prosecuting a guy for handing out nullification leaflets is a gross abuse of power.

burgerbrain 15y ago
You realize that jury nullification is a legal part of the system right? "But it isn't your job, as a juror, to write the laws." might be what a judge tells a jury, but that doesn't make it true.
acabal 15y ago
But that's what (correct me if I'm wrong) nullification is for: to allow the jury as a unit an independent mind, and to not force them to enforce laws they believe to be unjust. Their job is definitely not to write laws, but the founding fathers seemed to think part of their job was also--to a limited extent--another check and balance against the system.
sophacles 15y ago
Remember, a central idea in the Constitution is a balance of power, often called "a system of checks and balances". Much like the 2nd Amendment, the jury system is partly about preventing the government from taking too much power from the people. Deciding if a law was broken is part of it, true, but there are other aspects. For example one of the reasons for the jury is to decide if mitigating circumstances or evidence are valid enough that a violation of the letter of the law is still acceptable. A bad or unjust law is definitely a mitigating circumstance. You frequently see people put behind bars or otherwise punished for absurd violations of absurd laws, which even the members of the jury find stupid, because they are told that their opinion of the law doesn't count, even when the law is obviously being applied in an unfair or power grabbing way. Jury nullification is a powerful tool against such abuse and absurdity. Finally, look into the tenets of the common law system, upon which the US legal system is built. It is surprisingly enlightening, and will probably piss you off a bit at how things are currently being done (alternately, that we having fully purged it depending on your base mindset I guess :) ).

cynicalkane 15y ago

Jury nullification is typically portrayed as a defense against unjust laws, and some judicial thinkers see it that way. But it's important to point out the dominant view and the current view of jurisprudence views jury nullification as kind of an unfortunate edge case. Here's the Fourth Circuit from 1969: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision." In other words, jury nullification is not a defense against injustice, but a side effect of having trials by an independent jury of ordinary citizens.

rada 15y ago
The very first thing that wikipedia says about jury nullification paints it as much more than "an unfortunate edge case": A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops [...] it can have the de facto effect of invalidating the statute. A pattern of jury nullification may indicate public opposition to an unwanted legislative enactment.
- jessriedel 15y ago
  Wikipedia and cynicalkane aren't conflicting. cynicalkane is making a claim about why nullification exists. (It is impossible to prohibit nullification without also giving courts the power to ignore jury decisions based on what they think is in the jurors' heads.) Wikipedia is making a claim about the effect of nullification. (Nullification can effectively repeal laws, a very powerful consequence.)
JoshTriplett 15y ago
In the opinion of a court, which would rather not recognize the concept at all. Courts hold a dim opinion of jury nullification, going so far as to legally sanction mentions of it in a courtroom, and to provide "instructions" to the jury that try to expressly prohibit them from considering anything other than whether the facts of the case meet the law as explained to them. Even hinting that you might understand the concept will get you thrown off a jury. In some cases, bringing up the concept during jury deliberations will result in a mistrial. Personally, I like the way the state of Oregon handles the issue. Quoting the Oregon constitution, article I, section 16: "In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial". That said, I don't know whether in practice Oregon courts do any better about not censuring jury nullification.

tzs 15y ago

Suppose just 5% of the potential jurors believe, say, that it should not be illegal to kill an abortion doctor, or to beat up someone who dares to be homosexual in public, or to beat up someone who dares to flirt with a white woman while being black, and so on. If you have a jury of 12 and require a unanimous verdict for conviction, then 46% of randomly chosen juries will not convict people for the aforementioned crimes no matter what the evidence, because they will include at least one person who believes those acts should not be criminal. That spits in the face of the notion of equal justice for all. You and I commit a crime together, but have separate trials. The evidence is the same for both of us, but one of us is convicted and one not, because one of us happened to get one of those 5% who thinks stomping blacks or gays who get out line is OK. Ugh. Another big problem is that once you tell jurors they can ignore the law in order to acquit, they will figure out they can also ignore the law in order to convict. Bogus convictions won't be as frequent as bogus acquittals, but there will be some. (And you can't count on the judge throwing out the conviction in those cases, because the judge won't be able to distinguish those convictions from those where the jury simply believed the prosecution's evidence and witnesses over the defendant's evidence and witnesses). Our system is designed around checks and balances. How do you provide checks and balances for the nullification power? The only one that anyone has been able to come up with is to not tell the jury about it. That way, it only gets used in cases where some juror recognizes that not only would there be an injustice in applying the law to the case at hand, but that there has been a breakdown of the system making it so that this injustice will not be addressed elsewhere, so that the juror decides that even though he has sworn to uphold the law, he must break that oath. Nullification is almost never appropriate for a marijuana case. Even though I think marijuana should be legal, and I know all about nullification, I would never use it there at this time, simply because the system has NOT broken down in this area. Want to stop people from getting convicted of marijuana crimes? Then elect legislators who will decriminalize marijuana.

onemoreact 15y ago
Nullification is balanced around the hung jury process. http://en.wikipedia.org/wiki/Hung_jury http://en.wikipedia.org/wiki/Hung_jury If a jury can't decide in some time frame the judge can decide to end the trial without a verdict and enable a new trial to occur. Your constitutional protection vs multiple tryals only occurs after a jury has said not guilty it does not apply when a jury can't decide on a verdict. PS: In the US In the United States, the result is a mistrial, and the case may be retried. Some jurisdictions permit the court to give the jury a so-called Allen charge, inviting the dissenting jurors to re-examine their opinions, as a last ditch effort to prevent the jury from hanging. The Federal Rules of Criminal Procedure state, "The verdict must be unanimous...If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed...If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed...If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree."[7]

nottwo 15y ago

I kept waiting for the author to mention the Fully Informed Jury Association. I somehow stumbled upon their website over ten years ago and first heard of jury nullification. It's awesome they're still at it. http://fija.org/ http://fija.org/

patrickgzill 15y ago

Chief Justice Oliver Wendell Holmes, Jr.: "The jury has the power to bring a verdict in the teeth of both the law and the facts." John Jay (first Chief Justice): "The jury has a right to judge both the law as well as the fact in controversy." Justice Byron White: "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority." Thought these quotes should be in here ...

ChuckMcM 15y ago

Some better followup on the case so far: http://www.economist.com/blogs/democracyinamerica/2011/11/free-speech-and-jury-nullification http://www.economist.com/blogs/democracyinamerica/2011/11/fr...

wkral 15y ago

Does anyone know if there is a similar law about jury nullification in Canada? I hear about a lot of these little known facts about the law but they're usually US centric.

brohee 15y ago

http://www.economist.com/blogs/democracyinamerica/2011/11/free-speech-and-jury-nullification http://www.economist.com/blogs/democracyinamerica/2011/11/fr... on the same subject. I did post it here at the time but it didn't pick up steam...

_corbett 15y ago

my high school american studies teacher would recommend stating "I firmly believe in the right of jury nullification" to get out of jury duty–he was of the opinion that jurors who voiced their awareness of this right were almost never selected. I'd be curious to know if this was actually true

coolestuk 15y ago

In Britain jurors can ask questions of witnesses and the accused. At the end of a trial day, the judge will ask if the jury has any questions. When I was on a 3 week trial, I had a page-full of questions every day. I identified issues that both the judge and prosecuting counsel missed.

anamax 15y ago

Every objection to jury nullification also applies to prosecutorial discretion yet none of the folks objecting to JN object to PD.