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Jury Power To Decide "Law and Fact" in All Criminal Cases:

Apropos the Jury Rights Day post, I thought I'd mention that the Indiana, Maryland, and Oregon Constitutions specifically provide that:

  1. Indiana: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts."
  2. 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.
  3. 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."

I'm not an expert on jury power and jury nullification, though, and I can't speak with confidence about the precise original meaning of the phrases, or about how judges have interpreted them. I should also note that quite a few state constitutions (including that of my own California) expressly guarantee a similar power, but only in libel cases.

(This material originally appeared in the Jury Rights Day post, but a few minutes later I decided it merited a separate post.)

ERH:
Georgia too has this provision but the last time I heard a lawyer try to use it, it resulted in a mistrial.
9.3.2008 9:11pm
Jon Roland (mail) (www):
It is worthwhile for modern lawyers to learn what was the original standard of due process in jury trials. It is most clearly explicated in Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573. Now, granted, the important parts of the opinion for us are dicta (as they are in Marbury v. Madison), but the principle set forth has never been overturned, except by pernicious judicial practices.

Litigants have an original right to have all issues of law argued in the presence of the jury, so that they may review the positions of the bench in reaching a general verdict.

That essentially means that justice has been denied in almost every criminal jury trial for more than a century.
9.3.2008 9:34pm
Cornellian (mail):
It would be interesting to hear what prompted the drafters of the California provision to treat libel cases differently from all other cases.
9.3.2008 9:35pm
Scrivener:
I'd be very curious to find out how "the Jury shall be the Judges of Law" works in practice in MD.

Suppose the defense wants to argue some point of law, procedural or substantive. Does Jury being the Judges of Law allow the defense to insist on submitting 12 briefs, conducting a legal argument in front of the Jury, and doing in front of the Jury everything else normally done in front of a judge in such situations?

"The right to determine the law" may be interpreted as the right to get the judge to answer what the law is, but "the Jury shall be the Judges of Law" sounds pretty strong.
9.3.2008 9:41pm
Helene Edwards (mail):
Mr. Roland:

Please elaborate re your second paragraph. If all legal issues are are to be hashed out before the jury, this would mean an open invitation for prosecutors to air 20 year-old bad acts, no? So whatever the original due process standard was, it is at least modified by evidence codes, and in fact the latter might provide greater protection for the defendant than the jury consideration of law, right? If this is wrong, would be pleased to know.
9.3.2008 9:44pm
Jon Roland (mail) (www):
In the 18th and early 19th century it was unusual to file briefs in trials. Legal argument was mainly oral. Briefs were for appeals. However, the practice was for the jury to get everything the bench got, consult the same books (such as Blackstone's Commentaries), copies of statutes and records of cases, deverything.

The bench would decide motions, but in reaching a verdict the jury would review those decisions.

It would have been unthinkable to try to sanction attorneys for trying to argue the law in the presence of the jury. The very concept of jury trial encompassed doing so.
9.3.2008 9:50pm
great unknown (mail):
So today in Maryland, an attorney can be sanctioned for informing a jury of their constituional rights and duties.
What happened to the oath by judges to uphold the constitution of their state?
9.3.2008 9:53pm
JamesB (mail):
In Tennessee, the language appears in the section on libel trials (I, 18) as: "the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases."
9.3.2008 10:39pm
byomtov (mail):
Jury nullification is a difficult issue, I think.

I'm frankly all in favor of a jury refusing to convict in a case of what it sees as an unjustified prosecution. But that can also lead to serious injustices. In the Jim Crow South it was fairly routine for juries to acquit defendants (if they were even prosecuted) for pretty horrible racist crimes, no matter how strong the evidence of guilt. So jury nullification was one way that blacks were deprived of the protection of the law.

Is it possible to balance the risks of this sort of nullification against the benefit of a jury being able to tell a prosecutor to go f***himself?
9.3.2008 10:44pm
FantasiaWHT:

So today in Maryland, an attorney can be sanctioned for informing a jury of their constituional rights and duties.


That reminds me of school prayer... especially the case about teachers who would simply inform the students that they had a right to pray if they wanted to during a moment of silence (which is true), but it was unconstitutional for the teachers to tell them they had that right.
9.3.2008 10:45pm
David M. Nieporent (www):
I'm frankly all in favor of a jury refusing to convict in a case of what it sees as an unjustified prosecution. But that can also lead to serious injustices. In the Jim Crow South it was fairly routine for juries to acquit defendants (if they were even prosecuted) for pretty horrible racist crimes, no matter how strong the evidence of guilt. So jury nullification was one way that blacks were deprived of the protection of the law.
Byomtov, that wasn't jury nullifcation. That was justice system nullification. Federal prosecutors, with the same jury pools, managed to secure convictions
when state prosecutors didn't.
9.3.2008 11:04pm
byomtov (mail):
David Nieporent,

Are you saying that the state prosecutors tanked the cases?

Maybe they did. Still, as someone who lived in the south during that era, I'd be surprised to learn that juries were willing to convict. Are you sure the jury pools were the same?
9.3.2008 11:12pm
Fub:
Cornellian wrote at 9.3.2008 8:35pm:
It would be interesting to hear what prompted the drafters of the California provision to treat libel cases differently from all other cases.
Here's the only research on that I can do in a hurry. First, the provision was for criminal libel. It was Article I, Sec. 9 of the original 1849 constitution, and survived the 1879 revision.

Here is the relevant passage from Article I, Sec. 9:
Liberty of Speech and of the Press

... In all criminal prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. ...
Source: Constitution of the State of California and of the United States and Related Documents, published 1963 by the California State Senate.

What little I recall of the history of criminal libel is that truth was not always a defense. If that is so, then the California constitutional provision essentially codified a reform making truth a defense. In that context, it is not unreasonable that the provision making the jury the judge of law and fact was influenced by the earlier Penn or Zenger cases. But that is just my top of the head speculation.
9.3.2008 11:20pm
Jon Roland (mail) (www):
A refusal of a jury to convict based on the race of the accused is not nullification, it is bias. Nullification is about disagreement with what the bench or prosecutor claims is the law. It is holding, in defiance of the bench, that the charge is unconstitutional or inapplicable to the facts, or that the court does not have jurisdiction.

There is also a related action of refusing to convict because the due process rights of the defendant have been violated, either by the arresting officers, the prosecutor, the bench, or perhaps by conspiracy of witnesses. This is not technically nullification, because a statute, regulation, or charge is not what is being rejected. However, it could be called nullification of a policy, custom, or practice of the criminal justice system.
9.3.2008 11:26pm
byomtov (mail):
Jon Roland,

I think you're drawing a meaningless distinction. You write:

Nullification is about disagreement with what the bench or prosecutor claims is the law.

But a racist jury that refuses to convict is, or may be, saying that in its eyes crimes of violence against blacks ought not be against the law, at least under certain circumstances.

I interpret the term "jury nullification" to mean the jury placing its own sense of right and wrong above the law. It seems to me that can be desirable (when I agree with the result) or not.
9.3.2008 11:45pm
FlimFlamSam:
byomtov,

I think Mr. Roland draws a very meaningful distinction. A jury that acquits a white man but would convict a black man on the same facts is not "nullifying" but is biased. Nullification is as Mr. Roland has defined it, though I would also argue that a jury can nullify if it agrees fully with the law as generally applied but thinks the prosecutor should have used discretion and not brought the case.

I don't agree with everything Mr. Roland has said, but I certainly agree with him as to what nullification is, and I don't have any problem at all with juries doing it. I disagree with Mr. Roland, though, when he says that a defendant should necessarily have (what I understand to be) a common law right to have juries hear legal argument to assist them in nullifying.
9.3.2008 11:57pm
The Ace:
Maryland has an interesting history. The seminal opinion is Stevenson v. State, 289 Md. 167 (1980) and Montgomery v. State 292 Md. 84. Its a mess.
9.4.2008 12:14am
EH (mail):
Sounds like one is explicit and one is unspoken. I'll bet there's a whole encyclopedia of voir dire questions from these times that you don't hear any more.
9.4.2008 12:27am
D.R.M.:
Well, byomtov, the Constitution requires the jury be of "the State and district wherein the crime shall have been committed".

Whether the Federal courts used the same registered-voters jury pool that was typically used for state-prosecuted crimes in the Jim Crow South, I can't speak to . . . but they would have been juries of Southerners, and they returned convictions.
9.4.2008 12:29am
Dave Hardy (mail) (www):
1) In early federal cases, and in major British cases, there was often more than one judge, who gave the jury different legal instructions (or advice?) and the jury decided which, if any, to follow.

2) As to singling out libel -- a lot of Framing era commentary viewed the right to jury trial as esp. potent in seditious libel cases. If a public official brought criminal libel charges against a citizen, the power of juries to decide that it was truthful, and "he had it coming" was important. Same with civil jury trial. With the latter, it was almost THE argument for civil juries and the 7th, or whatever, amendment.

3) Frankly, trials then were a lot more interesting. Today, with the advocate often confined to a podium, and arguing only the facts and the instructions, there are a lot of really boring advocates. But for the fact that the jury is hearing their first trial, I suspect they could barely keep awake and would, like many judges, be doing paperwork while listening.
9.4.2008 12:49am
Jacob Berlove:
Oregon may allow jury nullification, but it shamefully share with Louisiana the dubious distinction of allowing non-unanimous guilty verdicts, undercutting much of what the jury protection was supposed to provide for in civilian criminal cases. Let's hope that the Apprendi majority can overturn the shameful SCOTUS precedent approving of this in one last Hurrah before Justice Stevens leaves the court and is likely replaced by another juryphobic justice in the mold of Breyer or Alito.
9.4.2008 12:52am
Wim de Vriend (mail):
Well, haha, I live in Oregon, and during Jury voir dire, if a potential juror admits he believes the Oregon constitution means what it says about Jury power he is removed by the judge, without further ado. So if someone wants to claim Oregon judges violate their oath to uphold the state constitution they are right, of course -- but I'd be careful, the establishment might take that out on them as well. This state is as corrupt as any.
9.4.2008 12:59am
J. Aldridge:
I think it was Spence who basically said cases are no longer decided by juries but by judges.
9.4.2008 8:21am
Sean M:
If the judges are truly judges of the law as well as fact, does that mean there are no evidential rules? After all, the jury should decide what testimony to admit and reject.

Can the jury /convict/ against the weight of the law because they believe the law is unjust in NOT criminalizing certain acts?

This seems to be one-way ratchet only.
9.4.2008 9:57am
Sean M:
If the /juries/, rather, are truly judges of law as well as fact . . .
9.4.2008 9:57am
pluribus:
Jon Roland:

A refusal of a jury to convict based on the race of the accused is not nullification, it is bias. Nullification is about disagreement with what the bench or prosecutor claims is the law.

You are trying to define away some of the ugliest effects of jury nullification. You say "bias" is not "nullification." Well, it is nullification if the law forbids it and the jury decides that the law does not forbid it. If the judge instructs the jury that the law does not sanction racial bias and the jury decides that it does, they are nullifying the law against racial bias. The same result might obtain in a Matthew Shepard prosecution. If the judge instructs the jury that the law does not justify or excuse murder merely because the victim was a member of a despised minority (i.e., a gay) and the jury decides that the law does justify or excuse such a murder, the jury is nullifying the law relating to justification or excuse of murder. The nullification is motivated by bias, but it is nullification nonetheless.
9.4.2008 10:29am
steviededalus:
I'm a paralegal at an Indiana criminal defense firm and I have looked into the jury constitutional provision before. Despite the plain language of the Indiana Constitution, you cannot actively try for jury nullification, although in certain instances you can get pretty close. For instance, one attorney always argues that the .08 BAC per se rule does not always mean the defendant was intoxicated, despite the statute saying it does mean the defendant was intoxicated. That same attorney argued in another case that a defendant did not masturbate in the presence of children because the children were not aware of the defendant (he was asking the jury to legally interpret "presence" in a certain way).
The jury's power to decide the facts has been interpreted by the Indiana Supreme Court to mean that the jury has the authority to ask questions of witnesses. A juror will write a question out on a piece of paper and the judge and attornies will argue over the admissibility of the question. The judge will then either ask the witness the question or, if the question is inadmissable, instruct the juror and jury not to discuss the question or a possible answer to the question.
9.4.2008 10:43am
byomtov (mail):
Whether the Federal courts used the same registered-voters jury pool that was typically used for state-prosecuted crimes in the Jim Crow South, I can't speak to . . . but they would have been juries of Southerners, and they returned convictions.

I'm not denying it, D.RM., just asking about it. I'd like to have more information on these federal prosecutions. I don't recall there being a lot of them at the time. After all, some of these cases have only been prosecuted recently.

That doesn't mean there weren't successful federal prosecutions at the time, just that I'd like some substantiation of the claim. One question I have is whether it even would have been possible for there to be such. The federal cases seem to be about violating the victims' civil rights. Did the appropriate statutes even exist in the 50's and early 60's?
9.4.2008 12:21pm
Sbard (mail):
While jury nullification played a highly negative role in Jim Crow south, it also gave us the acquittal of John Peter Zenger in a highly important precedent regarding the idea of freedom of the press in pre-revolutionary America.
9.4.2008 4:28pm
Jon Roland (mail) (www):
Sean M:

does that mean there are no evidential rules? After all, the jury should decide what testimony to admit and reject.

No. A motion in limine is not, in general, an argument on a point of law, but on evidence. However, in criminal cases I would only allow motions in limine for defendants, not prosecutors. Now, in a more complete statement of my position, I allow for excluding argument on points of law that cannot be made without disclosing evidence that is properly excluded. For example, it would be okay to exclude argument on a statute that excludes polygraph evidence, if it could not be made without disclosing that the defendant had failed a polygraph test.

Remember, the jury is not deciding motions, or adopting instructions, but to reach a general verdict it needs to be able to know what decisions the bench made and why, and to decide whether the decisions were correct.

Everyone should read the Stettinius opinion. It reveals what a jury trial meant when the Constitution was adopted, and there has been no amendment changing that meaning since. It doesn't matter whether you think that standard was a good idea. It was the standard, and until altered by amendment, it must remain so.
9.5.2008 4:02am
Jon Roland (mail) (www):
pluribus:

If the judge instructs the jury that the law does not sanction racial bias and the jury decides that it does, they are nullifying the law against racial bias.

No such law can apply to jurors, because to do so, it would have to prescribe punishment of jurors for the way they reach their verdicts.

It would only be nullification to refuse to apply it to a defendant for violating it, and they might very well decide the statute is unconstitutionally void for vagueness.
9.5.2008 4:08am