Judge Nullifies Juror Nullification:
A very interesting post today by Tim Lynch on Cato @ Liberty on a recent jury trial in a drug case:
For those with a serious interest in jury nullification, I highly recommend Jury Nullification: The Evolution of a Doctrine (paperback) by Clay Conrad, which is the best work on the subject since Lysander Spooner's Trial by Jury (1852).
There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed. Although juries retain the power to refuse to apply an unjust law, beginning in the Nineteenth Century, judges started prohibiting lawyers from advocating this to a jury upon pain of contempt. The Fully Informed Jury Association (FIJA) is a non-profit organization aiming to inform all Americans about their rights, powers and responsibilities when serving as trial juror. Click on the link to learn more about jury nullification.
It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.To read his analysis go to Juror Becomes Fly in the Ointment.
But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”
That’s a fair question. It is a point that has been made in Cato’s publications (go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others. Federal District Court Judge William Young was startled. He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law. Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively. When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.” Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.
It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations. So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf). I happen to know and respect Judge Young. I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin. I will briefly respond to his substantive arguments below.
For those with a serious interest in jury nullification, I highly recommend Jury Nullification: The Evolution of a Doctrine (paperback) by Clay Conrad, which is the best work on the subject since Lysander Spooner's Trial by Jury (1852).
There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed. Although juries retain the power to refuse to apply an unjust law, beginning in the Nineteenth Century, judges started prohibiting lawyers from advocating this to a jury upon pain of contempt. The Fully Informed Jury Association (FIJA) is a non-profit organization aiming to inform all Americans about their rights, powers and responsibilities when serving as trial juror. Click on the link to learn more about jury nullification.
The Founders would have considered what we let pass for "trial by jury" a farce.
Are you implying that the constitution does not apply?
In this case, just how many Jurors would have to defect in order to scuttle the conviction (assuming the others voted guilty)?
There is also little question that juries in the deep south routinely acquitted whites of monstrous offenses against blacks (and that, in a sick sense of turnabout, many blacks today will refuse to convict other blacks).
I think the issue of some one being unjustly convicted of a crime is more than enough to override any such concerns, at least in my book. And I agree, it was stupid of the nullification-minded juror to ask the judge questions like that.
No one is debating weather the conviction was just. The debate is weather the law he broke should have been enacted in the first place... and weather some random juror has the power to decide that.
Two wrongs do not make a right. If, having failed at the ballot box to impose my view of the law and, likewise, having failed to establish in the Courts that the law in question violates the Constitution and, furthermore, having failed at the ballot box to require different jury instructions, it seems far-fetched to say that the juror retains some moral right to ignore the manifest judgment of his peers.
I can understand the need for JN in extreme cases (alien &sedition act comes to mind) but for all my opposition to drug laws (and Raich, for that matter), I cannot interpose my personal judgment of their unjustness, stupidity or unconstitutionality for their contrary judgment of all 3 branches of government.
Glenn Reynolds' review at papers.ssrn.com/sol3/papers.cfm?abstract_id=1010518
They tried to kill my brother.... Had my brother's case made it to a jury, a conviction would have been likely. The prosecutor and judge, however, apparently felt that justice would not be served by sending the son of a local business leader - even one with prior offenses on his record - off to jail. Yet strangely enough, the notion that a jury might have discretion to make the same kind of judgment appears shocking, even un-American, to many. Jurors are unaccountable, after all (though prosecutors and judges are not especially accountable either, and are also shielded by absolute immunity). Historically, this trust of prosecutors and judges over jurors is a relatively recent innovation, and it may not be entirely merited. Despite all the famous cases of alleged juror nullification, it is "prosecutorial nullification" - more commonly known as "prosecutorial discretion" - that plays the greatest part in keeping malefactors out of jail.
Who judges whether the case at hand is extreme? Wouldn't it be the jury hearing it?
It always amazes me how we're told that cops have (and can be trusted with) discretion, prosecutors have (and can be trusted with) discretion, judges have (and can be trusted with) nearly tyrannical power in their courtrooms--but god help us if the jurors dare to behave like anything but robots.
And empirically speaking, would such insanity result in more acquittals, more convictions, or just randomness?
Is it not every man's moral duty to act on his independent judgement, to judge for himself? Is a juror supposed to take a man's liberty for no wrong?
An error does not become truth by reason of multiplied propagation, nor does truth become error because nobody sees it.
See also Galileo, slavery, Nazis.
Some random juror most assuredly has the power to decide that, so long as he doesn't give the judge any basis on which to replace him.
Historically speaking, there's no question AT ALL that jury nullification is why we have juries, it's what they're there for. The judiciary's current effort to stamp it out is nothing short of an attempt to render the right to trial by jury a hollow formality.
This is the problem with your argument here, Oren. "[T]he Courts" do not solely comprise the judges. If a juror decides that the law in question violates the Constitution, then the courts have established the law in question violates the Constitution, right then and there. It's merely that the judges have not.
Anti-nullification efforts are a pretty clear case of a group of government officials using their powers to further aggrandize themselves. Judges are more powerful if they're the sole triers of the law. The correct response is to treat the usurpation as the legal nullity it is, even if the judges perform the usurpation under the color of law.
The Constitution is not applicable in this nebulous "then and there" sense where every time you ask the question you get a different answer. If it is unconstitutional for the Federal government to imprison the defendant for simple possession of cocaine in the instant case, it is unconstitutional in all applications. Otherwise, we have a different Constitution every case depending on the whims of a computerized random number generator.
We have come to the point in this country where every policy with which a person disagrees is automatically some gigantic conspiracy. Isn't it enough to say "I disagree with the War on Drugs and I disagree with the result in Raich but I humbly accept the judgment of the democratically elected government and will work to change that result by convincing the public to change the law".
Because sovereignty rests with the people collectively, not with every individual.
Next time you get stopped for speeding, why don't you insist the the police officer -- YOUR AGENT -- should not punish you for an act that you don't think deserves punishment. In fact, why doesn't every criminal just insist that Mark Jones has given them personal sovereignty to ignore all laws they don't think are just.
understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?"
That means you obey the instructions of the court, even if you might think they are unconstitutional. The SC is the only branch of government that gets to interpret the constitution, not any Joe on the street.
As David points out, the police and prosecutor already have, and frequently exercise, the power to not enforce the law as they see fit. How is this not a Crime Against Democracy, then?
Hopefully this will force the appellate courts and possibly even the supreme court to face the issue of jury nullification head on.
Are you sure everyone agrees this was an unjust conviction? There are many who support the current "drug war".
As to the question of whether "some random juror" has powers, historically these specific powers were the main motivation for having the jury there: to safeguard the common people against tyranny by law. Today, the constitution of Oregon specifies (in Article I, Section 16):
The question is not about the wrong but about the remedy. Jury nullification is just plain unfair, it creates a situation where different people in the substantially same situation are judged differently based on the composition of a panel chosen at random.
That's what juries are.
See Stevenson v State, 289 Md 167, 423 A2d 558 (1980).
One of the most celebrated cases in our history, studied in every social studies class, is the Zenger case, in which the colonial government tried to prosecute a printer for seditious libel. Although "the law" at the time was that truth was no defense, the jury acquitted him.
The point is Who's the boss? In the relationship between the SC and the Constitution, it is the Constitution that is the boss. The claims by the SC that they are the interpreters are bogus attempts at expansion of authority, authority that, while possibly existing historically, was not engrossed in the Constitution for the United States of America. Those who claim the commerce clause is expansice enough to cover drug prohibition must 1) explain why it was not expansive enough at the time of the 18th amendment and 2) explain the fact that an expansive interpretation of the commerce clause makes 80% of the other delegations of powers wholly unnecessary, which is an invalid and improper interpretation. When one reads one clause as eliminating the necessity of other clause, one is convicting the Framers of ignorance of the law, language, and purpose. The power to regulate commerce among (grammatically proper term for more than 2 participants) the states was to keep the state from screwing with each other by way of state level regulation of commerce, no more. It is readily apparent to free thinking and independent students of the constitution and constitutional law that the majority of SC decisions have not legitimacy.
The education system is and has been under the control of the government for several generations. That control has allowed the government, with it agenda, to determine what those who pass through its schools think and believe. One must throw off the shackles and remove the blinders of the educational system in order to understand.
What he is claiming is that it is beyond the power of Congress under the Constitution to enact.
That type of questions strikes me as beyond the ordinary competence of jurors.
I once had a judge ask, at the end of haggling over a lengthy set of jury instructions, if both sides would agree to have him just tell the jury "go in there and do what you think is right". I was willing to agree, but the other side wouldn't. It would've been an interesting experiment.
Today you can certainly argue that there are other checks on bad laws, bad prosecutors and bad judges making the jury unnecessary. I certainly think today the jury system is a bad idea. Nevertheless, to claim that juries have lost their traditional power to judge the law, we have to explain what legal provision says that they have lost it. Certainly the jury mentioned in the Sixth Amendment could judge the law. Why isn't today's jury the same?
Jurors also hold their office by dint of not being struck for cause or by a preemptory challenge. So the prosecution (and the judge) has agreed to use these jurors before the jury decides on nullification.
If we permitted juries as much discretion as some here want, wouldn't the differing results violate the equal protection analysis of Bush v. Gore?
Let's do some statistical analysis here. Let's say that 66% (a large enough super-majority, IMO) of the population (should be enough to get a Const. Amendment passed, depending on the geographic distribution) supports law X. For the sake of emotional investment, let's suppose that you personally are very much in favor of this law X.
What is the probability that a randomly chosen jury of 12 will have a 6-6 or greater majority against X. That's
where p is the popular support for the law X. For p = 0.66, that probability is a whopping 20%. That means that, if juries are given unlimited power to nullify by majority vote, 1 in 5 people can expect to be acquitted even if 2/3rds of the population supports the law in question.
It gets much worse than that if we allow a minority of the jury to nullify convictions by forcing mistrials. In we allow just 3/12 jurors to block a conviction by nullification, than even for a measure with 85%! popular support, 25% of those tried for the law will be acquitted.
Because that's straw man bearing no resemblance to my actual point?
As a citizen going about my daily business, I have to obey the law. Nobody's suggested otherwise. When I sit on a jury, I am there to act as a check on the government, not a rubber stamp. They must prove their case to MY satisfaction or I'm entirely within my historical and moral (if not, according to them, legal) rights to acquit the defendant.
If, in my opinion, the circumstances surrounding the defendant's actions justify his behavior, I have every right to refuse to convict him. (How is this not functionally identical to the discretion a cop can show by choosing not to arrest him in the first place, or a prosecutor can show by deciding not to prosecute him? Other that the fact that they don't like letting mere citizens have that kind of say?)
There's no other situation where we say that public employees can ignore the law as passed by the legislature merely because we can fire them after the fact. So if the law as passed by the people is so sacred, then surely we shouldn't think it okay for police and prosecutors to ignore it merely because we can fire them later.
In my county, the jury pool is chosen by random number generator. Yes, there are preemptive and for-cause strikes, but that doesn't not negate the fact that the jury pool is a subset of the populace and that simple statistic will tell you that randomly chosen small subsets often have properties wildly divergent from the population at large.
Certainly this particular juror showed he was competent to judge the constitutionality of the statue. That most others currently do not find his argument dispositive doesn't mean the juror was incompetent to judge the law -- only that he is in the minority with respect to this legal question.
By the way, a criminal conviction based on a law which the legislature had no power to make, and which the executive and judiciary has failed to rein in, is an epitome of injustice.
Oren: judges are also drawn at random, and have different opinions on matters of law.
...I've read the most egregious errors in referrence to the constitution here, where many folks actually read the constitution and have one at hand. Do you really want every 21 year old college junior to apply the constitution he remembers from 5th grade ? Do you want the gang members creed to prevail in jury verdicts, as it surely will if nullification goes mainstream.
..We have an example where law is decided by everyman based on his interpretation, and not by dilligent elites after intense study : Islam. Do we really want to empower everyone with a copy of the constitution in his hand to be their own SCOTUS ? If so, why bother with a court system. Because if Mark Jones is right in what he claims above, then as a cop I can cut-out-the-middleman and just do justice on the street. I've got a copy of the constitution right here. It can say whatever I say it means, just like the Libertarians say it does. Suspect nullification. Save the State the trouble.
Well...yes. When acting as a juror, I AM the final authority. That's why we have jurors in the first place.
The question is not the aims of the government, which are uncontroversial, but rather the authority to judge whether a provision is inside or outside that mandate. I personally judge that prohibition of possession of drugs is outside the mandate of the government. I think the war on drugs is the epitome of stupidity and I think Raich was wrongly decided. Nevertheless, I'm not a sore loser and I accept those laws and judgments. I am currently working towards a ballot initiative in my state that will express those view and I have consistently voted for candidates that agree with my position.
Those that want to start nullifying drug convictions left and right are simply unable to admit to themselves that they have lost the battle for public opinion but instead of attempting to convince others by reason, they want to impose their judgment on whatever defendant has the luck of the draw to fall into their judgment.
They're unwilling to admit that the battle for public opinion is all that matters. Democracy is a means to an end, not an end in itself. If unjust laws (*) are passed, the fact that they were done via democratic means doesn't make them less unjust.
(*) Note that I said "unjust," not merely "would have written the law differently if it were me."
Possibly. But since I think jurors do have that authority, and that the courts are illegitimately interfering with it, I'll worry about it then.
Furthermore, the legislature is not a perfect channel for democratic will and is not far from a random group of a few hundred people for issues on which a candidate did not campaign. Even supposing a statute perfectly channeled democratic will, the legislature or the people do not have a perfect vision into the circumstances of every supposed "crime" that might unintentionally be forbidden by the statute (these are probably not the facts of the instant case).
The whole system is set up to make it difficult for the government to pass laws, and then difficult for the government to take people's rights, such as the liberty of the accused. This is a winnowing process, and does not put the accused at risk of any randomness to convict or imprison beyond what the law already allows.
If this is unfair, sending one man to prison and setting another free, by reason of the technicalities of a statute or court procedures, when they committed similar crimes of the same moral valence, is no less unfair.
They could start nullifying limits on government power too, you know.
Bottom line is this -- whether or not a single juror has the *right* to judge the law is irrelevant because they do have the *power*.
You lump here two independent issues -- your analogy is false. Much of the Federal "war on drugs" is Constitutional (targeting interstate criminal enterprises; drug smuggling into the country; conducting anti-drug projects in foreign countries). Disagreement with such policies is, as you say, grounds for changing the the legislature, the executive and the law.
However, some of the "war on drugs" is un-Constitutional. A juror who convicts someone based on an unconstitutional law has failed to serve his function as a juror. He might as well not have been there.
Do I believe in jury nullification in murder cases? Of course. Jurors who find the death penalty un-Constitutional should not vote for it. A hung jury is not the same as an acquittal, as far as I understand the US system.
Personally, I think trial by jury is not a good idea. But this is beside the point: as long as the Constitution guarantees a right to trial by jury in federal criminal cases, that right ought to be respected.
Can a lawyer here explain where the judge derived his power to remove this juror?
Except when those jurors start deciding that felonies like possession of cocaine (a felony i would certainly vote to repeal!) are not really felonies. Then it gets really hairy.
Juror are required to debate their conclusion in good-faith. If a juror is refusing to even explain himself to his fellow jurors, he can hardly be said to be acting in good faith.
Absolutely, I would never deny that. I just happen to think of it more as a reserve power, to be used in cases of genuine emergency than to act as a way for disgruntled citizens to strike down mundane laws.
Having a power usually counsels for judicious use of that power, that's all I'm getting at here.
But when do juries decide "limits on government power"?
Except that the branches of government have GIVEN us that power. The legislature you believe I am supplanting is understood not to possess the skills to legislate on a case-by-case basis - they set up the general rules and leave it up to the juries, among others, to decide how to properly apply them.
As to the question of what judges should instruct juries, I say nothing. To me, jury nullification is only really called for when the situation is so abhorrent to the jury's sense of justice and fair play that they feel compelled to ignore the letter of the law, without even being told they can.
Suppose further that your State does pass such a law.
Suppose even further that you are serving on a jury that is debating whether to convict a flag-burner (the facts are indisputable).
You can't argue that the statue is unconstitutional. You can't argue that the guy didn't do it. Can you still nullify just based on your gut judgment (that I share!) that this amendment is contrary to the promises of liberty promised to us by the Constitution?
They are preventing an unjust judgment from being imposed on the defendent. They contradict the majority, potentially endangering it.
You are one among twelve who need unanimity, and the judges will set the defendant free on the technicality. If the legislature passed the law, and the district and appellate judges do not vacate, and the eleven other people on the jury do not also convict, you are not condemning the defendant merely by your own personal opinion.
Well, this could only happen in the criminal trial of a government official for exceeding his authority. These are so rare (being subject to what has been termed "prosecutorial nullification" above) that jury nullification there is the least of our concerns.
And yet this is precisely what happens on a very regular basis in civil cases tried to a jury. If Oren is so certain that jury nullification no longer has a place in our judicial system (I respectfully disagree), then he ought to be willing to replace the jury not only in the criminal context, but also in the civil context - as purely finders of fact, juries are incredibly inefficient and unreliable; lets just replace them in ALL court proceedings. How about supporting "professional juries", composed of people who are educated and trained in such matters as logic, the pitfalls of certain kinds of evidence (eye witness accounts are notoriously unreliable, for example), body language clues as to when a witness might be lying (look where the witness's eyes look - if he/she is looking up and to the right, it's a good clue that his/her brain is engaged not in recollection but fabrication), how to avoid being influenced by emotion, "detective" types who enjoy and are very good at piecing together all of the clues and solving the puzzle, people who truly understood why the prosecutor bears the burden of proof "beyond a reasonable doubt" and who understood just what that meant. There is no question that if jury panels were composed of professional jurors rather than "12 people who were too dumb to get out of jury duty", the results would be much more reliable. On the other hand, if jury nullification is simply an outdated concept with no place in a representative democracy (again, I don't agree), then lets throw out both the Sixth and Sevent Amendments (at least as to trial by jury), and find a much better mechanism to simply find "just the facts".
Pren: Why not? Judges do it all the time.
Joking aside, I think JN is an important check on the excesses of the elite who run the political and legal system. JN was quite common historically - heck, when the only penalty for felony was death, there was quite a bit of incentive for jurors to find that lesser-included offenses (that didn't include death). Relatedly, there is a lot of evidence coronor's juries in the 18th century regularly "found" that suicides were "accidents" (which happened to avoid the ghastly penalty of escheat on the decedent's estate).
Looked at another way, laws are generally supposed to conform to a society's preferences, not the other way around. If people want to do an act that the politicians forbid, criminality results. I am willing to concede that there are certain acts that all or almost all people will consider criminal (e.g. murder in certain circumstances, cannibalism in certain circumstances), and yet some of those crimes will always occur due to the presence of hotheads and misanthropes in any society. However, there are likely other acts that all or almost all people think should be legal always (like, say, breathing), and there is a broad middle gound where shades of grey predominate. Societal preferences are malleable of course, and, like some quantum theory they seem to alter in reaction to observation and study, but the fact remains that every society has a series of price points capping its aggregate preferences as to one activity or another. Democracy is supposed to make the price-point discovery more efficient, but constitutions, as well as the practice of politics, makes that generally impossible. But JN can help us guide toward more efficient targeting of laws - if a particular law is located at point X on a preference scale, and social preferences are at point Y (or exist in a range between points Y and Z), then the greater the difference between X and Y (or Y to Z), the greater the likelihood that ordinary people would view the law as unjust. This would translate into a greater likelihood of "criminal" behavior (when ordinary people think the behavior is perfectly acceptable), and a sense of alienation would grow between ordinary people and the law-givers. In that sense, there is likely a point in any society where ordinary people are allowed to pass on criminal laws in some (even if limited) manner (i.e. this leaves out most non-common law countries) where JN becomes a greater possibility. If the acceptable distance between X and Y is defined as A, then 2A, or 10A, or 100A, might be the point at which jurors begin to nullify unpopular laws. If we attack JN (or disallow juries), that doesn't eliminate it - it merely suppresses it, causing it to morph into a different form (i.e., as Oren suggested, falsely finding innocence, or, in many societies, witnesses refuse to cooperate with investigations). This may mean that if 10A is the point at which JN is triggered in a given society, then maybe it would be 20A in a society where jurors/JN are actively suppressed. Thus, JN is ever-present, even if its incidence may be measured (of course, I'm leaving out the Type I and II errors).
A distinction between jury nullification and police/prosecutorial/judicial discretion is that we are absolutely forbidden from finding out why it was exercised. (Okay, the juror can decide to tell us out of the goodness of their hearts, but they often don't.) So you have no idea of knowing whether they truly believe that the crime didn't occur, that the wrong person was arrested, that there was a problem with other evidence, or they just didn't like the law. At least prosecutors etc will usually explain why they chose to exercise discretion, and if you don't like the answer you can vote them out.
That said, every prosecutor knows that "I think he did it, I just don't think you proved it beyond a reasonable doubt" is code for "I just didn't want to convict him" anyway. ;)
Judges must also pass on the constitutionality of laws, and that is the limit of their power. But jury is not limited this way.
Many juries refuse to convict peace officers of obvious offenses. For instance, in the case where police officers forced open the eyes of protesters and doused them with capsicum (which amounts to torture IMO), there were jurors that stated that they will never convict police officers of anything they do to "hippie protesters".
In S1983 cases, jurors often rule in favor of plaintiffs and award $1 for bona-fide constitutional violations.
Jurors in LA refused to convict Rodney King's assailants of what was, by all accounts, battery with a deadly weapon.
Really? A 40 page memo of law from a district court is "remarkably thin"?
It would be nice if think-tank types and legal academics would stop attributing sloth to courts that issue opinions they disagree with, particularly when the opinions in question are actually reasonably lengthy. This means you, Ann Althouse (re: Judge Taylor/FISA), EV (re: courts issuing less-than-book-length opinions on Heller issues), etc.
So if I think DUI laws are unjust (implied consent violates the 4A, IMO) I can vote against conviction in bog-standard DUI cases?
If I think laws against murder are unjust (eye for an eye), I can vote against conviction in bog-standard murder cases?
If each individual juror has the legal right (not just the practical right, but the legal right) to decide for himself what the law fundamentally is, then there is not, in fact, a system of laws in this country, and we are a government of men, not laws.
If you want to support jury nullification on the grounds that each individual juror gets to decide what the Constitution says, then you must support that same principle to allow a juror to acquit a child molester on the grounds that he believes there is a Constitutional right to have sex with 12 year olds.
See my earlier post about the probabilities (depending on the number of juror requires to nullify). JN does not appreciably increase the efficient targeting of laws towards the public's true conception until the jury size because > 50 (thus making the jury actually representative).
Not if you voir dire correctly. Recall that anyone on a jury has already passed any challenges by the prosecutor. Also the judge, with respect to for-cause challenges.
Also, 3/12 jurors cannot acquit. 3/12 jurors can hang the jury, which allows the prosecution to try again. If successive prosecutions result in successive hung juries, the prosecution usually gives up. The people have spoken and they disagree with the prosecutor's exercise of his discretion. But that is usually when you have a situation where the public disagrees on the application of a law to a specific set of facts.
The original Kevorkian cases come to mind -- not the last one, where he actually killed his patient, but the earlier ones where he set up contraptions allowing patients in pain to kill themselves to relieve their suffering, videotaped the events for evidentiary purposes, and then was prosecuted for assisting a suicide. Several juries refused to convict him, and ultimately the prosecutor was thrown out of office at the next election for continuing to pursue a conviction. [Notably, the new prosecutor ran on exactly the same platform as the old prosecutor, except for one thing: he promised not to prosecute Kevorkian again unless the circumstances of Kevorkian's actions changed dramatically.]
Yes, and those Type I errors in which a small minority happens to be overrepresented on a jury are quite a bit more likely than most people seem to admit (nobody has written a response to my calculations, wtf, actual numbers!)
Increase the jury size to about 50 or 100, and then we might be in a regime where the 'signal' exceeds the 'noise'.
While I agree that judges shouldn't be instructing juries that they can choose to nullify the law in a case, I think JN is entirely appropriate when conviction sufficiently offends the jury.
Does this lead to randomness? Sure. That's inherent in the jury system though. That's a bug that must be balanced against the other features.
That statement is an indictment of the jury system altogether, not just jury nullification.
Don't know why I am responding to an acknowledged "hand grenade", but my answer is no. The broad guarantee of "equal-protection" is trumped by the specific right to a trial by jury.
I'm assuming the JN proponents would allow a juror to lie about his propensity to JN in the face of a court hostile to this 'right'.
At great public expense, only to be confronted with another hung jury 25% of the time. I'd compute the average number of trials required to get a conviction but nobody seems interested in my numbers.
An excellent presentation of jury nullification in fiction can be found in James Gould Cozzens' book "The Just and the Unjust" (1941).
Well said. JN is an extreme remedy for extreme violations.
I would certainly nullify in those extreme situations, but I feel as though I set the bar much higher than some suggest.
The unaccountability of the jury is the main failing of the jury system, but it is also an essential feature of it -- it wouldn't work otherwise, especially if the jury believes it must reach an unpopular result.
Turning to the merits of the jury system, an published opinion of a court of law is a check on the court: having to detail the facts, the law, and the reasoning connecting them is the only deterrent against arbitrary judges.
The unaccountable jury with its nullification power is a different check against all three branches of government. It is a check against bad laws, bad prosecution and bad judges.
Opting for the jury system is a tradeoff: in return for one check you give up another.
In my opinion, today this tradeoff is not worth it, and the jury system is better scrapped. However, giving up on both checks at the same time (which is what Oren is advocating) gives you the worst of both worlds.
(I know that for Federal criminal cases the choice was made in the 6th Amendment, and the jury provision is also partly incorporated against the states, so "scrapping the jury" requires amending the Constitution)
No, that equal protection analysis was good for that case only. Didn't you read the opinion?
Sure, give all the instructions you do now, then give an instruction that say the jury is the judge of the justness of the law. If you feel the law is unjust, or that it is being unjustly applied to a unique set of facts, you have the power, authority and duty to acquit.
That's not what I got from what you've been writing, but I guess I misunderstood your point. So here's a question--how can a juror use that power, judiciously or otherwise, if he's explicitly forbidden from doing so by the jury instructions? If he can be removed from a jury if he dares to mention it in deliberations and someone reports it to the judge?
While I support nullification, I don't want it used willy-nilly either. And I'd rather not jurors resorting to subertuge to exercise this (perfectly legitimate, imho) power--but as things stand, what choose do they have? I'd be willing to support instructions that acknowledge the power but counsel very strongly against it. But I don't like the courts pretending that the power doesn't exist and doing everything they can to prevent jurors from even knowing it exists, much less acting on it.
The average number would be just over 2.
That is because, after two hung juries, most prosecutors would give up and assume that they would not be able to get 12 people to agree on a conviction under these facts.
If they didn't give up, they would eventually be replaced for wasting public funds, as Kevorkian's prosecutor was. That is why I say slightly more than 2 trials: even accounting for the renegade prosecutor who vows to keep pursuing conviction, I think most prosecutors would stop after two trials, so you will have a sharp drop-off in the curve after two.
As an aside, there is an interesting example of the practical differences between civil and common law systems. In the early modern era, the most powerful determinant of the scale of trials and executions of suspected witches was the system of legal system in place in a given community. Common law places experienced very few witchcraft trials by comparison, and it was extremely rare for a "witch-hunt" to get out of control (Salem is actually the biggest exception, with one or two other important happenings in England). In civil law places, however, prosecutions and executions for witchcraft were more common generally, and out-of-control witch hunts were unfortunately not uncommon - there were villages in Germany (where imperial law had been adopted) where effectively the entire village (or at least its womenfolk) were prosecuted and executed in the span of a few years - imagine Salem in a truly grand scale. Even in Great Britain the differences were notable - the proportion of people indicted and executed for witchcraft in Scotland (or the Channel Isles) was far higher than in England, and it wasn't because the English weren't superstitious. Now, this particular difference has relatively little to do with juries - historians think that the difference lay in the form of indictment, for inquisitors in civil law realms could pick people up sua sponte, whereas prosecutors in England typically had to wait for a concrete criminal complaint. Nevertheless, the civil law systems had little check on such judicial misdealings once started, and tens of thousands were killed needlessly in those places, whereas it was much more difficult in common law jurisdictions to allow such a cycle to spin out of control.
I will say this in favor of civil systems: juries, appropriately used, are best in situations involving local laws, local customs, and local crimes. That is, juries are intensely local in nature, and different communities will have different sets of preferences (compare, e.g., north Georgia with San Francisco). Where juries become really problematic is where (a) the laws they are told to enforce are not local at all, increasing the chance that the laws will conflict with their own preferences (and this means that a place like the USA becomes a patchwork quilt of law enforcement for federal laws) and (b) where local notables are on trial (as they can use their local power to help themselves). Civil systems are less susceptible to the more obvious forms of this, but they are not immune to the abuse of power (the problem of the runaway prosecutor is well-known in Europe even today).
Did you read the 40-page memo? A major part of Judge Young's argument is that: a) A local Judge's power to declare a law unconstitutional is critically important (why, he doesn't say); b) This derives from the fact that the issue came to jury trial; c) If juries cannot be "trusted" by the legal establishment to toe the line, cases would be adjudicated in a non-jury environment; and therefore d) Judges would lose their critically important power of declaring a statute unconstitutional.
Stripped down to its bare essentials, the argument is: juries can't be allowed to nullify in order that Judges may continue to nullify.
This comprises over half of the "forty-page memo."
Question for legal historians: when did the great right of "a trial by a jury of one's peers" granted in the Magna Carta and incorporated in the Constitution become "a right to a jury deciding who put on a better show, the prosecution or the defense"? With the codicil that the jury is many times deprived of basic information that they need to make the decision.
...Libertarians are anarchists in a tuxedo. When they burn down the law in order to smoke and shootup what they want, where then are we to find redress except in the tribalism that lawless places always devolve too ?
..And why would we let them do that via nullification ?
"Because The People can remove the police and prosecutors and replace them if they feel displeased with their jobs. They hold their office by popular mandate, not by dint of a random number generator."
The people can amend the constitution to end trial by jury and JN when they want to, but to substitute your or a judge's opinion of what the law ought be for the constitution as it was ratified and amended is the hight of judicial userpation.
JN is the Law under BOTH original intent and original understanding AND under the case law of SCOTUS. Please read 3 US 1 (1794). The court instructed the jury it was the judge of law and facts, but recomended that they take the court's advice as to the law. This was not dicta, there was no question of fact to put to the jury ONLY an uncompounded question of law.
By this rule-of-thumb way of thinking, couldn't JN coexist more peacefully with a system where relatively small communities are empowered to enact criminal laws? Something closer in size, say, to DC or Wyoming than California or Texas. Maybe smaller. Before the complaint is raised that nobody pays attention to local politics, ergo the laws wouldn't be any more efficient, I would think that empowering small communities with real criminal legal authority would raise the interest level in local politics pretty substantially - if the condo association can send me to jail, I'm going to pay a heck of a lot of attention to the tinpot napoleons who want to run those associations, and participate a heck of a lot more in condo association meetings. Wouldn't that, overall, be a good thing? It would be horrible for career federal prosecutors, to be sure, but I'm not such a big fan of federal criminal laws anyway.
I love this response.
Does your copy have a guarantee of jury trials, or is the sixth amendment missing? If you want I can send you my copy, but you may not like it. (It was printed by the Cato institute, and I hear that they do wear tuxedos.)
Here it is in soft copy:
What is it that you think a jury trial means?