Criminal Justice

Is Jury Nullification Legal?

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The Independent Institute's Mary Theroux highlights a heated debate over the doctrine of jury nullification that occurred between libertarian writer David Friedman and federal Judge Alex Kozinksi at a recent Independent Institute forum. Here's a snippet:

Kozinksi:

…juries do not have a right to disregard the law. In fact, juries are sworn to apply the law. If they can't do that or won't do that–and you would not want to be before a jury that is lawless. … It's an abomination. It's a crime. It should not be allowed to happen. The juries should be told in no uncertain terms that if they can't apply the law as instructed by the judge, they ought to get off.

Friedman:

…as a proposition in moral philosophy it seems to me clear that if I'm on a jury and someone is charged for something that I believe ought not to be a crime that my moral obligation is to acquit.

You'll find more along those lines here, including a video of the panel. Reason weighs in on jury nullification here.

NEXT: Finally, a Venn Diagram That Shows The Overlap Among 3 Varieties of Junk-Touchers

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  1. I’m rather shocked at Kozinski’s position, I thought he was far more libertarian than that.

    But if juries aren’t there to try the facts *and* the law, what are they there for? Surely expert judges could make better determinations of fact, no?

    1. There is a school of thought that nullification should be part of the process but that people shouldn’t be generally aware of it. That way, a vote to nullify is one that only happens to prevent great injustices.

      1. I could disagree with the judge over congressional intent. What’s to say you have to believe it means what that judge says?

        1. I’ve been on a jury, and I wouldn’t casually nullify, but give me the right facts (or the right law), and I’ll nullify with great nullity.

          1. We do know you’re serious when The Great Nullity? is in effect.

      2. That way, a vote to nullify is one that only happens when someone happens to get on a jury, despite the state’s best efforts to eliminate them from the jury pool, who is aware that they have both the right and the duty to prevent great injustices.

        Fixed.

        1. I think the general feeling is that enough people will vote their conscience that nullification will be a de facto result, even if the juror doesn’t know about nullification.

    2. When I have been called for jury duty for drug crimes (possession, sale, etc), I have told the judge that I didn’t believe the Government had the authority to ban drugs absent a Constitutional Amendment (a la Alcohol Prohibition), and I would refuse to convict. I always get excused from service.

      This begs the question of “Are you being tried by a jury of your peers?” if the general public consesus, particularly with marijuana, is becoming one where marijuana should be outlawed. If the majority of the people in my jurisdiction believe pot should be legal, then the defendant is being deprived of a jury of his peers.

      1. —“marijuana should be outlawed”—

        should not be outlawed. I even previewed.

        1. At least you postviewed.

      2. This begs the question of “Are you being tried by a jury of your peers?” if the general public [consensus], particularly with marijuana, is becoming one where marijuana should [not] be outlawed. If the majority of the people in my jurisdiction believe pot should be legal, then the defendant is being deprived of a jury of his peers.

        Unless the defendant has the right to pick his own jurors.

        1. Can we get a citation for that other than some random pastor in Texas? Not that random Texas pastors aren’t fully versed in historical legal procedure.

      3. It’s a bit tragic that, in essence, you have to lie to prevent greater injustice.

        But I don’t think there’s any question that libertarians need, need, need to get on juries, and the moral equation between letting the innocent be punished and not being entirely truthful about your political views (which they should not be allowed to exclude you because of anyways) is pretty easy. Remember, that could be you or a loved one on trial there someday.

      4. I was in the same position. I told the judge that I could not, in good conscience, find someone guilty for a drug charge. I was dismissed, and everyone else in the pool had a good laugh over it.

    3. For what it’s worth, I don’t think there’s an official libertarian position on jury nullification (even if one position may be the overwhelming majority view ’round these parts). I see a fundamental pillar of libertarianism to be the rule of law, and if one is passionate about the fact that police officers and politicians are not above the law, why shouldn’t we hold a juror to the same standard?

      1. Juries arent above the law. But, they are judges of the law.

      2. Standard jury trial practice in the USA during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury, so that the jury heard the same arguments the bench did in reaching his rulings on motions. This is evidenced by such decisions as the 1839 case Stettinius v. U.S., in which it was held that “The defense can argue law to the jury before the court gives instructions.”

        1. See, the laws got too complicated to be understood by nonprofessionals, so we had to change things so common folk wouldn’t get confused.

          1. See, the people, The Folks?, they don’t believe that. The Folks? want juries to follow the law. I know this from the time I was a jury, about 30 years ago – when I was a jury, that’s how it was, so I know.

            I’ll give you the last word…

            1. Bill O’Reilly. You didn’t continue talking after “I’ll give you the last word…”

              1. Yah caught The Tater…

                1. I’m stuck on how O’Reilly could be “a jury”…

                  1. You’ve heard the phrase “judge, jury, and executioner”, right?

      3. Not that it’s the official libertarian position, but it is in the LP platform

        We assert the common-law right of juries to judge not only the facts but also the justice of the law.

        Frankly, the inalienable individual right not to participate in the punishment of another person if you don’t believe he should be punished pretty clearly yields either jury nullification or a derived right of conscientious objection from jury duty.

      4. I see a fundamental pillar of libertarianism to be the rule of law

        Nope. A fundamental pillar of libertarianism is the rule of just laws based on libertarian principles.

        A libertarian imprisoned in, say, North Korea, would be justified in doing their level best to escape, even though doing so would be breaking the law.

        1. Yeah, I keep seeing this phrase crop up lately.

          NO! The “rule of law” is not a libertarian position!

          Whoever keeps saying that, STOP!

          1. To be fair, maybe by “rule of law” ClubMedSux means that “no one is above the law”.

            He does go on to say…

            if one is passionate about the fact that police officers and politicians are not above the law, why shouldn’t we hold a juror to the same standard?

            The answer to this is that the jury is exactly not the police, a politician, or any other representative of the state. The jury represents the people in the form of particular individuals.

            A crime is created by state legislators, investigated by state police, prosecuted by a state prosecutor, and judged by a state judge. In the entire process of convicting someone, only the juror does not explicitly represent the state and its interests.

            That is a feature, not a bug. Effectively deputizing the jury to do exactly what the judge asks it to ruins that features and is completely contradictory to the entire notion and its roots in common law.

    4. Judge Alex Kozinski shows Dumb Cunt Sarah Palin is wrong again
      Stupid SoCon bitch thinks juries should decide LAW and fact. Even more retarded, Caribou Barbie thinks juries should uphold individual rights as found in the Constitution
      Judge K shows what a fucking idiot she is. Like that’s hard, lol.
      Jury Rights Day

      WHEREAS, September 5, 2007, will mark the 337th anniversary of the day when the jury, in the trial of William Penn, refused to convict him of violating England’s Conventicle Acts, despite clear evidence that he acted illegally by preaching a Quaker sermon to his congregation.

      WHEREAS, by refusing to apply what they determined was an unjust law, the Penn jury not only served justice, but provided a basis for the U.S. Constitution’s First Amendment rights of freedom of speech, religion, and peaceable assembly.

      WHEREAS, September 5th, 2007, also commemorates the day when four of Penn’s jurors began nine weeks of incarceration for finding him not guilty. Their later release and exoneration established forever the English and American legal doctrine that it is the right and responsibility of the trial jury to decide on matters of law and fact.

      WHEREAS, the Sixth and Seventh Amendments are included in the Bill of Rights to preserve the right to trial by jury, which in turn conveys upon the jury the responsibility to defend, with its verdict, all other individual rights enumerated or implied by the U.S. Constitution, including its Amendments.

      NOW, THEREFORE, I, Sarah Palin, Governor of the State of Alaska, do hereby proclaim September 5, 2007, as:

      Jury Rights Day

      in Alaska, in recognition of the integral role the jury, as an institution, plays in our legal system.

      Dated: August 31, 2007

      1. I should know better than to respond to this, but here’s a copy pasta from PA:

        It is not only [the juror’s] right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.

        John Adams, 1771

        …..it is usual for the jurors to decide the fact, and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact.

        Thomas Jefferson, “Notes on Virginia,” 1782

        It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision…..you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.

        Chief Justice John Jay, Georgia v. Brailsford, 1794

        Jurors should acquit, even against the judge’s instruction…if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong.

        Alexander Hamilton, 1804

        In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction

        Article XXIII, Constitution of the State of Maryland

        In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts.

        Article I, ?19, Constitution of the State of Indiana

        It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and consequently that the jury have the legal power to decide for themselves the law involved in the general issues of guilty or not guilty.

        Justices Gray and Shiras, Sparf and Hansen v. United States, 1894, dissent

        The jury has the power to bring a verdict in the teeth of both the law and the facts.

        Justice Oliver Wendell Holmes, Horning v. District of Columbia, 1920

        If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence…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.

        4th Circuit Court of Appeals, United States v. Moylan, 1969

        [The jury has an] unreviewable and irreversible power…to acquit in disregard of the instructions on the law given by the trial judge…The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.

        D.C. Circuit Court of Appeals, Unites States v. Dougherty, 1972

        1. nice compilation, thanks.

    5. As a defense lawyer, nullification worries me because juries are overwhelmingly looking to do exactly what the prosecution tells them to.

      The only hope I have is that facts and law require relief. If nullification is a possibility, juries here in Massachusetts are shockingly authoritarian and sure to follow government orders on issue, regardless of what facts and law require.

  2. As I recall, jury nullification was supposed to be a common sense check on government power. If people think applying the law is patently unfair, they can and should refuse to enforce it.

    Consider the implications of the opposite: Let’s say we get hit a few more times by terrorists and start locking up people for being Muslim. With jury trials to determine the facts. Should a juror vote to convict based on an immoral and, for that matter, unconstitutional law?

    While nullification can be abused (it was during the Jim Crow era), I’m not sure it could be stopped. Jurors can’t really be prevented from voting however they want in our system, nor must they provide any explanation for their votes. So whether a juror acted to nullify is, really, unknowable unless he tells the world.

  3. “” The juries should be told in no uncertain terms that if they can’t apply the law as instructed by the judge, they ought to get off.””

    I could say the same about judges ability to apply the law, and/or instruct the jury to all the laws that apply, like self defense or it’s ok if your moving.

    1. I was thinking along similar lines. Why would jurors be obliged to honor the law when judges and politicians never do?

  4. Kozinski can go fuck himself. If I think a law is immoral, I will not vote to convict someone of it. If I did, I would be complicit in the immorality of the law.

    There is no “legal” issue here, anyway. As ProL says above, a juror does not have to explain how or why he/she voted, and cannot be compelled to do so, so at the end of the day, it’s just what that person decides to do.

    1. The problem is not once you are on the jury but at the Voir Dire procedure. Questions as to whether or not you support law X shouldnt be allowed as part of that process.

      1. Agreed, rob, but it should be all through the process. Frankly, I think we’d have better (for justice) outcomes if the juries were completely randomly chosen from those called up for jury duty, with no voir dire at all.

        1. I agree. I argued for that last week or two weeks ago around here.

          I actually said max 18 in the pool to get 12 + alternates. That is my compromise position. That allows knocking out the cousin of the victim and the mother of the perp.

    2. As ProL says above, a juror does not have to explain how or why he/she voted, and cannot be compelled to do so, so at the end of the day, it’s just what that person decides to do.

      Yet. If enough jury nullification happens, look for statists to make such explanations mandatory.

  5. With the country seemingly split 50/50 on many issues- most specially those dealing with social liberties – one wonders if we’d be cheering half the time and screaming about a miscarriage of justice the other half. Far better, perhaps, to have laws passed only by a super-majority than by half the legislators plus one.

    1. Felonies should require 90% for passage. If it isnt that clear that someone should go to jail, then the law shouldnt pass.

      Murder, rape, robbery, etc etc. None would have problem reaching that standard.

      1. Agreed. To be declared a felony it should get and retain at least 90% approval. And misdemeanors should need at least 70%, I think.

        Infractions, punishable by a small fine or a few days in jail, might get by with 50% + 1. After all, we do need to keep society civil sometimes.

  6. I’d be curious about how Kozinksi would enforce this “crime” notion. Obviously, any action taken by the government to pressure or question jurors on their decision making would pretty much destroy the independence of jurors, so I think he knows calling nullification a crime is just hyperbole. Or just means that it’s a moral crime.

    There is a long history of jury nullification protecting us from government overreach–like in the old sedition trial of Peter Zenger (predating the U.S.). In that case, the attorney actually argued against the law in court. You can’t do that here today, but it would be an interesting, though possibly chaotic, way of checking government power.

    1. So the justice system was more fair before the last successful revolution than the justice system we have now.

      1. It’s a somewhat-surprising sentiment from a guy who wrote “You’re (Probably) a Federal Criminal.”

  7. Ja wohl, Herr Hitler,

    Burn them fucking Jews, it’s the law!

  8. I’m a NJ attorney; here’s how it played out in my state: Nullification remains lawful here (and was specifically upheld by our Supremes,) but I’m not allowed to argue to the jury for it, and judges don’t reveal this either. Worse, they used to charge juries with (paraphrasing) “If you find not-guilty, you MUST acquit; otherwise, you MAY convict.” This language obviously revealed a “tipoff.” So they changed it to “must” convict where guilt is found. Bottom line, the judges have been ordered to misrepresent the law to the jury. Also, note one more technicality, which has actually been invoked to arrest a juror in another state: Jurors take an oath to “follow the law,” and this was used to prosecute a nullifier. Nullification was not questioned; instead, the action sounded in “false swearing.” Of course, however, this hat-trick, if utilized everywhere, would effectively outlaw nullification.

    1. That’s a problem I have with the process. What started out as merely not encouraging nullification–which is clearly part of Anglo-American jurisprudence–has morphed into this concept of jurors simply making fact-based decisions (only on those facts presented to them in court, of course), without any other judgment, moral or otherwise, and certainly no right to nullify, allowed.

      In fact, there was a time in American history where jurors not only could pretty clearly nullify, they didn’t have to be ignorant of the people involved or of the circumstances of the case. They were expected to be peers of the defendant in a more literal sense.

    2. I’m a bit curious on why you wouldn’t tell the juries about their right to nullification? Is it because the judge would stop you, or because you don’t think that message would resonate with the jury?

      Also, how did they arrest that one juror? Is the jury forced to explain why they chose what they did? Or did another juror tip the judge off about what happened? I was sort of under the impression that back-room discussions of the jury were supposed to remain there.

      1. I think that, generally speaking, it’s not allowed to bring up nullification. Probably not in any state.

        Which is why you should run commercials for jury nullification for the month prior to the selection of the jury.

      2. I’m a bit curious on why you wouldn’t tell the juries about their right to nullification?

        Because the judge would give you a sharp warning once you even hinted at this, and if you persisted you’d be jailed for contempt of court.

        Otherwise, every single minimally competent defense attorney would tell the jury in every single case about their right to nullify, during closing arguments, and maybe even bring it up during voir dire.

        1. Yes. What he said. I’d probably get sanctioned in some form at the outset, I would get no warning. That aside, what he said.

    3. Nawww, I (as a juror) get to define reasonable doubt. If I think there is any probability at all that the guy is being framed, and that the confession he made was just in an effort to seek mercy, because he knew he was being framed, then I get to decide what a “reasonable” probability for a false conviction is. If the defendant isn’t even being accused of actually doing anything that hurts somebody else, then the “reasonable” probability of false conviction is zero. Easy-peasy.

      1. True, but you would have to hide your true motive to nullify. To answer another correspondent, the lady got prosecuted when another juror ratted her out. Jury deliberations are indeed private and unrecorded, but there’s no prohibition on any juror whining publicly afterwards.

        1. I’m not talking about hiding any true motives. I’m talking about what I think the proper definition of “reasonable doubt” is. If the loss due to an incorrect acquittal is zero, then to me “reasonable doubt” becomes synonymous with 100% certainty. If a false acquittal means that somebody who actually did something wrong goes free, then it’s less than 100%. I think that is reasonable. I could even dress it up as math if needed.

          1. Keep n mind we’re on the same team…but that’s the sort of argument that gets guys like me accused of “sophistry.” It’s cool as clever argumentation, but if you’re ever called on such an argument by guys with guns, you better hire someone like me. Here’s an argument that might not get you slapped: The juror swears to uphold the law, right? Then, the nullifier is busted for oath-breaking. Since some states – including NJ – have at least established that nullification IS the law, I’d argue you did what you swore to do. Live in a crappy(er) state? Feds haven’t enshrined nullification, but as well, they’ve not yet tossed it. So you could take it up.

            1. Ya i realize we are on same team. If guys with guns show up, I’m not saying crap until i get a lawyer. This is how I plan to talk to fellow jurors with out using the N-word. ( heh see what I did ther?). It might help me slightly that I actually believe what I’m saying here, as much as it might appear to be sophistry. There is no reasonable doubt allowed for a law applied in an unreasonable situtation (e.g. no actual victim). Mind you if a guy was being prosectued for selling crack to an 8 year old, I could still easily convict. I just have to see some actual harm done somewhere.

              Sophistry: when somebody doesn’t like your conclusions, but can’t actually rebut any of your premises or your logic. Oh ya, and they think they can read your mind too.

            2. Oh ya, are you allowed to suggest what you think constitutes reasonable doubt to a jury (i mean you, as a defense attorney, during a trial)?

              Seems like a softer version of my argument would be OK as a hail mary. Especially with an engineer or a mathemitician on the jury.

              1. Arguing “what reasonable doubt consists of” to a jury is permitted, but mucho risky. In sum, you cannot say anything that contradicts the “official version” that the judge states to the jury. Would you believe that in the last decade, the official version in NJ was watered down? Well, of course you would. So what used to be tricky is now extremely risky. Example, for those interested; The next lower standard, “clearly convinced,” has now been functionally substituted for BRD here in NJ. My long-used “brilliant” argument used to go: Being as much as clearly convinced – but not ruling out any alternate reasonable possibility – requires a not guilty verdict. Now I can no longer mention it. It’s still true, technically and under the law, but it now stomps on actual wording which the judge states to the jury and draws both a successful objection (often, from the judge) and sometimes even a curative instruction(!) The good news: I might get to spend a few nights sheltered and fed at county expense, since mistrials you cause are very pricey.

    4. The highest law in the United States is the Constitution, which assures the accused a right to a trial by a jury of his peers. Keeping in mind what that meant at the time, jury nullification of obscene laws is clearly following the law.

      1. No, it guarantees by an impartial jury not a jury of one’s peers.

  9. Kozinski is wrong. Ive supported Kozinski being appointed to the Supremes, not that it was ever going to happen. I pull that support.

    1. Oh, you found a less shitty option to support instead?

      1. No, no I havent.

        Me, you and Pro Liv?

        1. Sure, I’ll do it.

          There’s always Janice Rogers Brown. Black woman, daughter of sharecroppers, and a known, unlicensed libertarian.

          1. True, she was on my short list. But Kozinski isnt any more.

            1. Well, his position on nullification isn’t that big of a deal, though it’s not exactly libertarian. It’s not likely he’d ever hear a case based on nullification, after all.

              1. To me, it says there is a fundamental problem with his legal thought process.

                1. It disturbs me, too. But judges usually are disturbing. Of all government officials, that’s the one place we should see more libertarianism. But we don’t.

                2. He’s a judge. Don’t expect too much of people in government. “Not that shitty, a lot of the time” is about the best you can do.

        2. Dude, what the fuck. I don’t get considered for the Supreme Court? Fuck you.

    2. You think Kozinski is worse than anyone Obama would nominate for SCOTUS?

      Because perfect isn’t on the table, just “less worse than the alternatives.”

  10. For all of those prospective jurors out there, thinking about nullification, let’s just say this: First rule of Jury Club? You do not talk about Jury Club. You tell the man you voted to convict or not to convict, and that’s it.

    1. Damn straight.

      2nd rule of Jury Club. Lie your ass off during Voir Dire.

  11. I suprised myself and made a cogent argument while in voir dire agiainst drug laws…i was actually awesome and I dont get to say that much but some sort of divine libertarian poet entered me and the following transpired:

    The judge asked us if we knew either the accused or the victim or victim’s family in this case. It was clear that we should be excused due to such knowledge. The prosecutor said that the People of Colorado are the victims in opening earlier. I then concluded that I know the victims and am therefore one of them as well as everyone else in the room. He then asked me specifically what I thought about the crime of possestion of MJ. I said “since there is no victim in this case then there is no crime or as if you state the people are the victim then we all must be excused.” He said “thanks, for your service, have a nice day.”

    1. Nice. I like it.

      1. I would be fascinated to hear your legal opinion of what a defense lawyer could do with that. Seriously, if I was his lawyer and the judge said “all those who know the victim must be excused” and the prosecutor said “I represent the victim in this case and that is the people of Colorado” why couldn’t you make a motion to dismiss or at least force their hand on a change of venue out of state…

        1. Im not a lawyer, nor do I play one on reason.com, but it would just take the right judge to take it literally and start throwing cases out.

          Of course, he wouldnt be a judge for long.

        2. It’s bullshit, anyway. That kind of statement shouldn’t be allowed. That said, it’s probably harmless puffery.

        3. I plan to use that if the situation arises. If I’m going to get kicked out, at least I can make the state a little ridiculous and petty to influence the other jurors against them.

    2. I love this.

    3. I also love this and plan to use it if in the pool for a drug/prostitution/gambling/&c. case.

      1. God Bless all of you, but most courts divert these conversations to private sidebar. Arguably, you systematically remove libertarians from the jury pool, and the innocent victims/defendants pay the price. Saying it “loud” at sidebar might get you sanctioned, and usually will give the prosecutor a bunch of free peremptories (to “cure” the “poisoned” jury pool.) But remember: Any “drug war” is fundamentally socialist in the first place. It’s “the people,” not “all the persons.” Notice also that trying to press such a distinction – in addition to tilting at windmills via sophistry – is law-neutral. So the “People” would have to excuse all jurors on murders, thefts, etc. I do concede you surely have the right to speak your mind; there’s still some first amendment residue that’s robust, so if that’s your druthers, by all means, speak your piece. For my money, however, “first rule of Jury Club…” Also, BTW, several federal judges (as well as other prosecutors and cops)have already had to resign because they decided to stop “joost following awwwdahs.”

        1. God Bless all of you, but most courts divert these conversations to private sidebar.

          Indeed, I was booted from the jury during voir dire after the judge stood up and invited both counsel to the end of the bench farthest from the jury box.

          He returned to his seat and excused me.

  12. Honestly I’m torn. One person could use nullification to acquit a weed smoker because he believes the law is unjust. Another could acquit a guy who murdered a gay guy because the juror hates gays too. A juror in a civil trial could rule against a party to “stick it to Big Pharma.” The system sucks that you have to enforce unjust laws if on a jury sometimes, but if the law can be anything a juror wants it to be that opens up Pandora’s box. I think it’s best to stand up for what you believe in during voir dire and try to convince enough people that the law is wrong so they can’t get enough jurors to have a trial, even if it means you’d get cut.

    1. A juror in a civil trial could rule against a party to “stick it to Big Pharma.”

      Jury nullification has nothing to do with civil trials.

    2. That’s the reason for nullification being treated as a de facto and not a de jure power.

      In your scenario, the prejudiced juror could vote based on his bias, regardless of the status of nullification. In fact, that sort of thing does happen. The difference is that someone who does that is acting in an unprincipled manner.

      Nullification, on the other hand, provides a juror with a principled way out of a draconian or improperly applied law.

    3. Your point is undeniable. The answer, which I think wins the day – only by a nose – is the fact that almost no one “nullifies” true crimes, like murder, theft, etc. Yeah, that aside, it’s the seed of anarchy. Also, when murder is legal – think Nazi’s or Stalinists – jurors take the weight if they follow the law. Still, what happened in the racist American South is nothing to sneeze at, and is certainly the killer argument against nullification.

      1. But that required the whole of the jury to allow that to happen (or atleast an intimidating majority). Jury nullification is really about being ahead of the curve on where the laws should be. If you can really swing a whole jury to going against a law, then really its not a very strong law (or atleast not respected in that area). That should lead to questioning the law, not the jury.

    4. Another could acquit a guy who murdered a gay guy because the juror hates gays too.
      Do you think a juror like that is going to be deterred by laws against nullification?

      1. As I understand it though, if you’re the only person on the jury with that particular opinion, all you’ll do is cause a hung jury I believe.

        1. Correct. And SCOTUS has said, with slight wiggle-room, that three hungs and the prosecutor is “out.” In real-world practice, the state rarely proceeds past two.

  13. An abomination, hey?

    Bah!

  14. Judge Kozinski needs to go back re-read his history. Jury nullification has long been used in the fight aginst bad laws and miscarriages of justice. Juries have refused to convict individuals who aided or harbored fugitive slaves, dealt in alcohol during Prohibition or resisted the draft during Vietnam.

    1. He’s likely thinking of the reverse–nullification being used to let lynchers go free during the Jim Crow era. But it’s really just semantics–regardless of what you call it, people are going to bring their biases to the table and will frequently disregard the letter of the law to do so, when that law conflicts with their beliefs.

      Incidentally, this isn’t just a jury problem. It’s also a judge problem. Any lawyer or even law student will tell you that one of the most frustrating features of legal study is wading through judicial opinions that are clearly results-oriented and are often in flagrant disregard of the law. The Supreme Court has, historically, been as guilty of this as other courts.

  15. In Georgia, Indiana, Maryland, and Oregon juries’ judging the law is not only legal: it is enshrined in the Constitution.

    That’s why I never visit those states. The streets are full of roving gangs of one’s peers committing mayhem but certain to be acquitted.

    1. Really? I thought the concept of jurors only being “triers of fact” was universal in the U.S.

      1. From their Constitutions:

        Georgia…

        …and the jury shall be the judges of the law and the facts.

        Indiana…

        In all criminal cases whatever, the jury shall have the right to determine the law and the facts.

        Maryland…

        In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.

        Oregon…

        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, as in civil cases.

        1. What do constitutions have to do with the legal system?

        2. What do constitutions have to do with the legal system?

          1. I don’t care how cynical you are – you can’t say that often enough.

        3. Huh. That’s very interesting. . .and surprising. I wonder how that works in practice? Can I talk nullification to a jury in Georgia? Or, if not actual nullification, at least points of law?

  16. First Chief Justice of the US John Jay wrote: “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy”. State of Georgia v. Brailsford, 3 U.S. 1, 4 (1794)

    1. The courts judge facts all the time; judges can choose to allow or disallow evidence, witnesses, lines of questioning, etc. I suppose it’s only fair that juries judge law.

  17. The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision.

    All these quotes are from wikipedia, so grain, salt, etc.

  18. A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.[35] In 1972, in United States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense’s chance to instruct the jury about the power to nullify.[36] In 1988, the Sixth Circuit upheld a jury instruction that “There is no such thing as valid jury nullification.”[37] In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).

  19. Further, as officers of the court, attorneys have sworn an oath to uphold the law, and are considered by bar associations to be ethically prohibited from directly advocating for jury nullification.

    1. This gives Kozinski an out … he could be disbarred if he argued otherwise.

      1. Who handed the Bar Assoc a monopoly on the practice of the law?

        1. The Bar Assoc

    2. I’d argue that informing the jury of that option is, in fact, an ethical imperative. An oath to “uphold the law” does not preclude an attorney from arguing that the law in question should not be applied to this particular client in this particular case. If the jury agrees and invokes their inherent right to nullify, then that is their decision. The jury is not a servant of the judge or the lawyers or the plaintiff or the defendant. They’re full peers in the process.

  20. I don’t agree that juries ought to rely on the judge’s instructions regarding the law (for instance, if the judge allowed evidence that should clearly have been excluded according to existing law), but neither does a jury have the right to simply disregard clear guilt just because its members don’t like the law (and remember that bad laws can be Constitutional!). We don’t want lawless juries. Lawlessness is the root cause that gives birth both to jury nullification and to juries convicting because they don’t like the defendant. Add to all this the fact that juries don’t even nullify anything; they just let the one defendant off while the law remains on the books.

    1. We don’t want lawless juries.

      If the law sucks, I do.

      1. Fine. Go ahead and universalize that notion, but remember that you aren’t the only judge of whether a law “sucks.” Maybe some juries like abortion clinic bombings. Maybe others like beating gay people to death. Ask yourself if you’d rather live in a world where juries determine guilt according to the law, or one where juries determine guilt based on whether they want the defendant in jail.

        1. Did you read the quotes above. John fucking Jay thinks juries should judge the laws. Why the fuck dont you?

          1. Your appeal to authority bores me. I assess an extra penalty for quoting a legal opinion to support the idea of a right of a jury to disregard the law.

            But to answer your question: even if judiciously applied, jury nullification does nothing systemically. It’s not like juries can write opinions that become enshrined as case law. All that happens is that a small part of the population lets a guy off. The law remains in effect, but now it’s a roll of the dice as to who it gets applied against.

            Again, and maybe you can answer this one in return, you aren’t the only one with an opinion about the law. Some people think defendants should be free because they don’t like the victims. Are they also entitled to vote their consciences, or is jury nullification only for juries who agree with you?

            1. Juries members can do what they please. There is nothing to stop them.

              Yeah, appealing to Jay is an “appeal to authority”, but a damn good one. And we also have the entire freakin history of British common law. Jury nullification comes up again and again. Technically all precedent is an “appeal to authority”.

              1. Technically all precedent is an “appeal to authority”.

                GOOD….GOD! Our entire judicial system is based on poor logic. :O

            2. The watershed cases for both freedom of religion and freedom of the press were decided by jury nullification.

            3. but now it’s a roll of the dice as to who it gets applied against.

              Justice is only a roll of the dice, a flip of the coin, a spin of the wheel…

        2. Fine. Add the following to the juror’s oath: “You may acquit for reasons unrelated to the facts, but you may not convict for reasons unrelated to the facts.”

          Of the four states whose constitutions recognize the right to acquit on the basis of law, only Maryland and Oregon saw the need to add such qualification. I don’t know whether it appears in their jury oaths.

          1. My objections to this are the same as in the third paragraph of my reply to robc above.

            1. There is no way to force a juror to not vote their conscience.

              That isnt what is at stake in jury nullification though. Their are two issues:

              1. Should jurors judge facts? Everyone agrees yes on this.

              2. Should jurors judge the law? Anti-nullifiers say no, pro-nullifiers say yes and have history on their side.

              Does that mean that I might not agree with their judgement of the law? Sure. But Im okay with that to keep the principle around.

              Better 1 billion guilty go free etc etc.

              1. The point of #2 isnt to not judge the facts, it is to make conviction a two part process – Did the accused violate the law? Is the law just?

                If either question is no, the jury should acquit.

                1. Xenocles wins. I hereby nullify robc.

        3. In any dispute between a citizen and the government, it is my instinct to side with the citizen.

        4. Asked and answered. I’d rather give any twelve random morons the power to not lock somebody up in a butt rape cage than give some fucking asshole attention seeking lawyer the power to lock somebody in a butt rape cage, whilst trusting the legislative whores to do all the morality checking.

        5. Ask yourself if you’d rather live in a world where juries determine guilt according to the law, or one where juries determine guilt based on whether they want the defendant in jail.

          And you would control this how?

          1. How would I control which world we have? By attempting to persuade people that the world I favor is better, the same as most people here.

            If you’re asking how I would propose to control a jury, there is no practical way to control a jury. A judge can admonish them as much as he likes, but I don’t think the fact that juries have the real ability to vote however they please is at issue here.

            1. What I was asking is how you came to the conclusion of the possibility of two different ‘worlds’, when their separate existence depends entirely on an ability to regulate human behavior.

    2. Yes, Xenocles, I served on a jury once that acquitted a defendant who had committed what the law defined as “second degree battery”: he had given someone an injury that required stitches.

      We had no quarrel with that law, but the facts of the case made it clear that the man and his adversary, a co-worker of his, had gotten into a brawl at work. Both had suffered bruises, but only the other person had required stitches. The other person had been judged guilty of disorderly conduct, but this guy was charged with a much more serious infraction. We thought he should get the same judgement, since the exact nature of the wound he inflicted seemed merely incidental to the mutual violence. We didn’t have the option of finding him guilty of disorderly conduct, though, so he got off scot free.

    3. Well, I won’t lie in jury selection. But if I get put on a case where I believe a finding of guilt would make me complicit in an injustice, I will not find it, and the law can go fuck itself.

      As dangerous as lawless juries can be when absolving lynchers or OJs of their misdeeds, more dangerous still are people who use “the law” as an excuse to wash their hands of their moral responsibility for the treatment of the defendant and victims.

      “All that is necessary for the triumph of evil is that good men do nothing.”

      1. I won’t lie either. But if I am inclined to get on a jury, they better have a long list of fine grained questions if they want to detect my libertarianism. Cause I’m really good at playing dumb, and I’m good at on the fly pedantic parsing.

    4. Agreed. Jury nullification is a symptom of a bigger problem, but isn’t in itself a good thing. It’s only good as a response to institutional injustice. Unfortunately, it can be used to perpetrate even more injustice.

      I’d say it is only valid as a response to genuine institutional problems, and not to be used lightly.

  21. When sitting on a jury, a person is directly exercising the people’s sovereign power to determine what is just in the particular case before him. The jury’s authority is superior to that of the judge, the prosecutor, and in fact the entire government. The government’s powers are delegated to it by the people. The jury is the people.

    -jcr

    1. Yet expressing that opinion will ever keep one from serving on a jury

      1. Fastest way off of jury duty… guaranteed.

        1. I was tossed pretty quickly when I mentioned reading from the FIJA.ORG website.

    2. The judge who tried the case I mentioned said just about the same thing when he debriefed the jury after the trial. In the course of thanking us for our service, he gave us a friendly and informative lecture about the history of the jury system, emphasizing how central it is to the operation of a democracy. When he retired recently, the local paper did a feature on him that made it clear how widely respected he was among both prosecutors and defense lawyers.

  22. Justice Jay, I believe, would agree with Friedman. If I’m not mistaken, he said something to the effect that juries have the right to judge the laws as well as the facts.

    1. Look above. 6:29 PM.

  23. FWIW

    Nevertheless, there is little doubt as to the ability of a jury to nullify the law.

    http://en.wikipedia.org/wiki/Jury_nullification

  24. As far as I can tell, the current legal reality is that, as a jurist, you have the power to vote any damn way you like on a particular verdict. You can give totally nonsensical reasons to your fellow jurors or not explain yourself at all.

    I’ve been on a few juries, and it would be impossible to tell a juror that is incapable of thinking logically (and there are plenty of them) from one who is purposely voting against the letter of the law.

    If you start blabbing to the attorneys or the judge afterward about why you voted the way you did, then you could be in big trouble. If you say nothing, there’s nothing they can do to stop you.

    1. I remember being instructed that nullification was my right, and that anything less than a unanimous decision by the Jury would result in mistrial, but this was back in 1981.

      But how could anyone compile statistics? How can you tell why someone has voted the way they have? Often, it’s a question of, do you believe the testimony of the witnesses? Some jurors might, some may not!

      Also, I believe that a judge may uphold a juries’ decision, declare a mistrial, or send it up to an appeals court if he has reservations.

      1. Good point about the judge’s options.

  25. Jury Nullification: [W]hen a jury reaches a verdict contrary to the weight of evidence.

    Oh right, like when a rogue cop beats up on an innocent suspect, and the cop-loving jury reaches an innocent verdict contrary to the weight of evidence.

    Got it.

    1. That’s bullification.

  26. There seems to me to be room for middle ground.

    A jury could nullify a verdict, but only if they think the law is unjust, excluding other reasons.

    I wouldn’t want to have been a black person in the south with white juries nullifying cases against white racists. I also wouldn’t want to have been tried for misogeny.

    1. Nullification is a double-edged sword. Advocates must be prepared to take the good with the bad. Advocates assume that the good results will outweigh the bad results. Is this assumption based on anything other than hope? Does the acquittal of an “innocent” (in your opinion) man justify the acquittal of a guilty (in another’s opinion) man? One cannot assume that a jury, given the chance, will always do the right thing. Do a right and a wrong cancel each other out?

    2. Jury nullification to me was a small issue with the complicit judicial system the south had against blacks during the Jim Crow era. It took a brave DA to even bring charges against white murderers of blacks and simply manysimply didn’t get prosecuted at all, let alone let off by the juries. And then you had police that wouldn’t bother to stop lynchings, etc, blah blah blah. The whole jury nullification is a check against authority, which may not be up to date with the will of the people.

  27. Man, anti-nullification is RACIST! You cain’t spect me to convict a brutha’!

  28. When asked if I would follow the law I said yes. I assumed that they meant common law.

    1. And then they threw your ass in jail, because ignorance of the law is not a legitimate defense?

  29. I think there are some good libertarian reasons to be against jury nullification.

    The state isn’t always the only perpetrator of injustice. Libertarians aren’t anarchists. We do have laws that protect individuals not just from the government, but from the majority, from society.

    If you have a society that is perpetrating injustices, laws protecting your rights, enforced by courts, are your protection. That’s why we have a justice system, and hold it to be a legitimate function of government. No libertarian thinks that courts should be allowed to make arbitrary and capricious judgements. The laws should be enforced uniformly and fairly, and it’s easy to see how prejudiced juries can prevent that if they can nullify verdicts with impunity.

    1. Nullification isnt about arbitray and capricious judgements. It is about judging the law as well as the facts.

      Nothing arbitrary about it.

      Also, an unjust law can never be enforced “fairly” by definition.

    2. Any Juror may reasonably disbelieve all the evidence presented in the case, regardless of whether the rest of the Jury is convinced, or whether the Judge rules that there is sufficient evidence for a verdict.

      Furthermore, voting and Jury duty are about the only means an ordinary citizen has for participating in government, regardless of ideology, without becoming a protester or activist.

      Serving on Juries is about the only means you have for implementing the law, unless you want to become a plaintiff in some case against the government.

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