That's what a Canadian judge told the jury in a marijuana possession case, where the defendant claimed he possessed the marijuana for medical reasons (though he apparently didn't qualify for some reason for Canada's medical marijuana exemption): The judge instructed the jurors "to retire to the jury room to consider what I have said, appoint one of yourselves to be your foreperson, and then to return to the court with a verdict of guilty."
Yesterday, the Supreme Court of Canada reversed the conviction (R. v. Krieger), concluding -- as do American courts -- that the right to criminal jury trial means that the judge may not categorically direct the jury to render a guilty verdict, even if the judge believes that the factual evidence against the defendant is overwhelming.
Thanks to R.G. Newbury for the pointer.
And the judge helpfully clarifies: "Actually there is one choice and that is guilt."
There is harmless error review in Canada, but as the decision makes clear, two jurors wanted to acquit but the judge basically told them "no."
It's even worse than the one quote makes it out to be.
Then there are the judges who while acknowledging the jury's guilty verdict effectively annul it with a piffling sentence for a serious crime. In Massachusetts, we recently got rid of a female judge who throughout a trial openly flirted with a child rapist and ultimately let him off with such a lenient sentence that she was referred to the Commonwealth's judicial discipline board. She's gone on to be a phony tv judge, where hopefully she can do less harm.
I was initially asking myself, why not just a directed verdict? But presumably, that is not available, even at a beyond-a-reasonable-doubt level in criminal cases a good part because of the jury nullification issue.
And, yes, I agree that in many, if not most, cases these days, the prosecution nicely steps around this via bench trials.
Doesn't the defendant decide if he wants a bench trial or jury trial?
Otoh, I think it is the duty of any juror to USE jury nullification in cases they see fit.
The Crown attorney was hoist by his own petard. I don't do crim law, but IIRC when its an indictable offence (aka felony) the defendant has the choice. When its charged as a summary conviction offence (aka misdemenour) then no jury right.
Lee:
Good thing you are not holding your breath. Highly unlikely that anything will happen to the judge. If you followed the link and read the report, you will note that the Court of Appeal UPHELD the conviction. Also note that SCoCAN ordered a new trial.
Bruce:
SCoCAN made it clear that the only directed verdict a judge can give is an acquital (on the basis that there is insufficient evidence upon which a conviction could be upheld).
Regarding harmless error review: SCoCAN made it quite clear that the underlying problem was that even if thris is treated as a 'harmless error', it is impossible to tell that the error was harmless, especially since 2 jurors tried to get off the jury! And length of deliberation means nothing either way.. 2minutes means that they followed the judge's order and 6 hours just as likely means they were arguing about how dangerous it would be to refuse to follow his order.
I have often wondered how D.A.'s argue to deny the defence the right to raise jury nullification. The concept is clearly part of the common law which IIRC is the adopted basis for the law of the USA (note the historical references in the decision). Surely, it would be available to a defence attorney to argue that the denial of the right to make the argument is denial of the right to make a full defence, and that the actions of the D.A. are in fact, breaches of Federal civil rights law. Hell...make it a conspiracy of D.A.'s and argue RICO. Seriously, denial of the right to make an argument is clearly a denial of the right to full answer and defence and a denial of justice.
www.fija.org collects cases and articles.
I believe the British tradition of summarizing the evidence does not exist in America. A federal district judge told me that he felt making such a summary would result in automatic reversal. Thus, it seems to me that the decision of the Supreme Court of Canada has little relevance to American practice.
The following is from Lord Devlin's opinion in Chandler v. Director of Public Prosecutions [1964] AC 763, quoted in Regina v. Wang:
"A judge may, of course, give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction. The trial judge indicated a fairly strong opinion in the present case, particularly at the end of his summing-up, when he hinted to the jury that there was only one verdict that they could in conscience return. But this was not improper, for even in relation to the limited facts which he left for their consideration, he told them clearly several times that the question was for them to answer...."
This is a world away from American practice.
Suppose I'm on a jury and the judge tells me (the jury) that a corporation has a potential liability in a tort case when a fatal accident was caused by an employee running an errand for the company, in his/her own car. And I/we say "the corporation wasn't driving that car and they're in the case because the plaintiff thinks they have deep pockets; the girl was driving; we find the girl liable and the corporation can walk. Isn't that jury nullification? And who would know that it was nullification? Or am I missing the definition and or the point?
Say what???
Here in Arizona 90% of ciminal cases are plea bargined = no jury trial. I didn't make that 90% up either. Thats a published fact.
Yes, the criminal justice system is designed to favor the defendant. Rather let 10 guilty men go free than convict one innocent man and all that.
Yes, judges do sometimes unreasonably set free guilty men but I suspect it is quite rare. Conversely though juries will occasionally convict an innocent man. For instance suppose somehow the jury is exposed to suggestive evidence the man is a child molester (this information is somehow at the heart of the indictment, e.g., he is being arrested for murdering the lead witness in that case) or other politically hot category. It is necessary to let the judge set aside verdicts like this.
If you don't believe this just look at some of the civil cigarette awards. Do you really think that similar things never happen in criminal trials.
Yet this means the system is, or should be, biased towards the defendant but that is the idea. If we really want to get into the question of fairness we should first address the fact that prosecutors are far better funded than public defenders.