Patterico's Pontifications

8/28/2006

Question for Those Who Support Jury Nullification

Filed under: Law — Patterico @ 7:24 am



I think we all agree that police should not lie under oath, even as to matters of probable cause, even when the defendant is clearly guilty. Their oath is more important than any private desire to see what they believe is “justice” served in any one particular case — if “justice” means twisting the law and violating their oath. Any officer who decides for himself what the law ought to be, in violation of his oath to tell the truth on the stand, is a “rogue cop” and a criminal.

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case 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?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?

P.S. It’s a dodge to say that the Constitution provides for (or the Founding Fathers believed in) jury nullification. The oath is a promise to follow the court’s instructions, not some abstract view of “the law” as you believe the Founding Fathers intended you to apply it.

Would you take the oath, or not? Would you faithfully apply it, or not?

Let the rationalizing begin!

(Remember to mention Nazis!)

143 Responses to “Question for Those Who Support Jury Nullification”

  1. Juries protect society from dangerous individuals and also protect individuals from dangerous government. Jurors have a duty and responsibility to render a just verdict. They must take into account the facts of the case, mitigating circumstances, the merits of the law, and the fairness of its application in each case. The recognition of the authority and right of jurors to weigh the merits of the law and to render a verdict based on conscience, dates from before the writing of our Constitution, in cases such as those of William Penn and Peter Zenger. Should this right ever be suppressed, the people will retain the right to resist, having an unalienable right to veto or nullify bad and oppressive laws, and in fact then would be morally compelled to do so.

    Jurors, as the representatives of the people, hold no personal agenda during any trial and most certainly not the government’s agenda. Let us not forget that the prosecutors, judges, arresting officers – and the forensic investigators in most cases – are all a part of and receive their paychecks from government, with personal power bases to build and personal careers to protect through the “productivity” of successful prosecutions resulting in convictions. Jurors have no such stake in the outcome, and are, in fact, the only truly objective individuals in the courtroom.

    The role of our jurors is to protect private citizens from dangerous government laws and actions. Many existing laws erode and deny the rights of the people. Jurors protect against tyranny by refusing to convict harmless people. Our country’s founders planned and expected that we, the people, would exercise this power and authority to judge the law as well as the facts every time we serve as jurors. Juries are the last peaceful defense of our civil liberties.

    [That’s a nice speech, but I asked a question, and you didn’t answer it. — P]

    mitch (55069c)

  2. “Nazis.”

    ‘K, now that had nothing to do with my comment. I agree with you, Patterico.

    From a previous thread, here is my reasoning – and equally important, my feelings.

    Chris from Victoria, BC (9824e6)

  3. Mitch, you are full of crap. I served on a jury in Orange County. I was fortunate enough that we didn’t have any people who would not convict any Black because the juror was Black. That is common problem in many Large Urban juries. Prosecutors often do not ask if jurors hold such prejudices or agendas, nor do they inform a jury what to do if one of their members is openly pushing an agenda that is in contradiction to the Judge’s instructions.

    One juror in my pool was openly asking for a drug case as he didn’t believe in the drug laws and was going to vote for aquittal no matter what the guilt of the defendant.

    Another juror on my jury said cops lie all the time, therefore he was not going to listen to any cop’s testimony. Fortunately in the case we heard, no cops were involved.

    PCD (46ddaa)

  4. The game is rigged – you, the judge and other officers of the court are tainted by your employer. IF the jury must follow the law as instructed, why bother having a jury at all – simply have proffessional jurors determine the facts and vote from there.

    Citizens have no such taint. Screw the oath. If I fail to agree to the judges admonition – I can be sent to jail. The judge, the prosecuter, the police all have a degree of protection from malfeasance. The public has no immediate protection from you and your colleagues. You also have unlimited funds to pursue your goals, M. Javert. Most defendants do not. The game is rigged in your favor. Screw the game.

    mitch (55069c)

  5. PCD–

    The reasons for jury nukkification are varied – See OJ. I don’t suggest they are all wright or wrong, simply that the jury MUST have to right to nullify, otherwise, why have a jury? A properly programmed computer can determine facts and convict accordingly.

    mitch (55069c)

  6. The juror is only committing perjury if he knowingly lies during his oath. Not acting as one promises is not perjury, because one can change one’s mind. So this “thought crime” can only be prosecuted if the juror confesses to an improper state of mind.

    In contrast, a cop can, indeed, lie on the stand, like anyone else, and be proven to have done so.

    The reason we have jury trials is precisely so the state cannot railroad convictions through for political reasons. That said, nullification is arguably not appropriate if a juror merely thinks the law is unjust, as opposed to thinking the legal system is actually the corrupt tool of a tyranny.

    DWPittelli (a38ee9)

  7. Oops…”nullification”

    mitch (55069c)

  8. Jurors bring to their deliberations many things that are not included in the evidence, such as knowledge of the English language, the customs of their country, etc. It seems to me that the oath needs a qualifying phrase to cover this point.

    [The instructions encourage jurors to use common sense and life experience. Nobody wants jurors to be mindless robots. We just want jurors not to make up their own laws.

    Nobody is answering my questions. Would you take the oath? Would you apply it? — P]

    dchamil (960e8c)

  9. To this non-lawyer, the law on nullification is hopelessly muddled. Yes, jurors take an oath to apply the law. However, there is no penalty for nullification. Indeed, courts explicitly recognize there is a role for nullification of laws that are grossly unjust. It’s all a wink-wink non-system by which nullification is allowed and condemned at the same time.

    These words from Dougherty spell out this confused state of mind over nullifiction:

    The way the jury operates may be radically altered if there is alteration in the way it is told to operate. The jury knows well enough that its prerogative is not limited to the choices articulated in the formal instructions of the court. n48 The jury gets its understanding as to the arrangements in the legal system from more than one voice. There is the formal communication from the judge. [**60] There is the informal communication from the total culture — literature (novel, drama, film, and television); current comment (newspapers, magazines and television); conversation; and, of course, history and tradition. The totality of input generally convey adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says. Even indicators that would on their face seem too weak to notice — like the fact that the judge tells the jury it must acquit (in case of reasonable doubt) but never tells the jury in so many words that it must convict — are a meaningful part of the jury’s total input. Law is a system, and it is also a language, with secondary meanings that may be unrecorded yet are part of its life.

    When the legal system relegates the information of the jury’s prerogative to an essentially informal input, it is not being duplicitous, chargeable with chicane and intent [**61] to deceive. The limitation to informal input is, rather a governor to avoid excess: the prerogative is reserved for the exceptional case, and the judge’s instruction is retained as a generally effective constraint.

    To sum up, the jury is bound by the judge’s instructions, except for the “exceptional” case. And who determines what the exceptional case is? The jury. But don’t tell the jury it can do this, because this power could be taken too far. Let them figure it out on their own, by what they get from the “informal comunication.”

    Is this the best the legal system can do?

    Bradley J. Fikes (28f79a)

  10. The cop who lies on the stand may or may not be proven to have done so in a timely manner to the detriment of the defendant. Thus, one jailed or dead innocent. How about summary execution for cops who lie on the stand? Ditto prosecutorial malfeasance? Ditto judicial malfeasance? Time to level the playing field.

    mitch (55069c)

  11. In the Simpson case, there was an incident in which one of the jurors, who was backed up by Ito, felt harrassed by one of the Sheriff’s deputies assigned to them.

    I think that it is entirely possible and reasonable for the very experience of the judicial system as a juror to convince one of its incompetence and/or corruption. In such case a juror is certainly within his rights to nullify by assigning reasonable doubt to the very court itself.

    Cobb (80bf2f)

  12. “It’s a dodge to say that the Constitution provides for (or the Founding Fathers believed in) jury nullification. The oath is a promise to follow the court’s instructions, not some abstract view of “the law” as you believe the Founding Fathers intended you to apply it.”

    No, it’s a dodge to say that an oath-taking exercise can compel citizens to aquiesce to injustice, or to remove themselves from the process in favor of those who do so aquiesce.

    If the judge made the jurors swear an oath which I thought inconsistent with the Constitution, I would take the oath and then follow (my understanding of) the Constitution. For everyone who agreed with my understanding of the Constitution to refuse, on principal, to take the unjust oath would put the trial in the hands of toady jurors, and further the state’s unjust and unconstitutional aims. All that said, I am not aware of a current widespread problem of unjust or unconstitutional Judicial instructions.

    DWPittelli (a38ee9)

  13. To answer Patterico’s question, I would take the oath, and apply it in normal cases. But in an “exceptional case”, I would exercise my prerogative to depart from the judge’s instructions, as described in “the informal communication from the total culture”. Nowadays, the total culture would include blogs such as this one, along with movies and newspapers.

    I would also say, “Gee, thanks a lot,” to the courts for not giving me any explicit guidelines on how to decide what is an exceptional case. (If these guidelines exist, someone please point them out to me).

    Bradley J. Fikes (28f79a)

  14. A trial by “an impartial jury” means just that. The jury is conducting the trial. The judge et. al. are not mentioned. To say that the judge can instruct the jury as to their options, and that they are restricted to deciding questions of fact, appears to be a fiction, and certainly taints the impartiality of the jury.

    Assuming that, the oath is an unconstitutional coercion/selection filter, and could be ignored. If a police commander orders a subordinate to commit an anti-constitutional act as part of his job and the subordinate ignores it, would he be violating his oath of office? If, when he originally took the oath, he had come to the decision that he would violate his oath if it would lead to illegal action, would that be perjury?

    Of course, the judge would be inclined to disagree, as would most prosecuters. But grant me that there might be a bit of bias there.

    Every attorney knows the cliche, “you can indict a ham sandwich.” It sounds like a joke, but there is more than a bit of truth in it. Has the Grand Jury involved in that process fulfilled its constitutional responsibility, and if so, is the entire process, in its current perveted form, constitutional?

    Does anybody know how the process of jury instructions evolved? When did the idea that a judge could overrule a jury first make an appearance? And even if the jury is truly a sworn tool of the State, why should they be held to a different standard than attorneys – also sworn intruments of the State – for whom results trump strict adherence to the Law as written every time?

    great unknown (a90377)

  15. I suppose I’ve got mixed emotions on nullification, and would probably have to say it depends on the case. What I’d like to point out is that while the jury does indeed take an oath promising to do certain things, so does the Judge and all attorneys as Officers of the Court. In fact, as professionals they have a deeper obligation to their oath than do citizens. Then there are police witnesses who have a similar obligation as professional public servants charged with upholding the law.

    So, that said, if the jury sees that the prosecution/cops/Court are or have been obviously violating their oaths, I don’t have too much trouble with the jury acting likewise. If those we pay to uphold and dispense the law don’t repect the process, I can’t fault jurors for it.

    Can I invoke Godwin’s law?

    [If you see police violating their oaths, and it causes you to have a reasonable doubt, you don’t have to violate your oath or nullify to acquit! — P]

    Pablo (efa871)

  16. Like it or not, jury nullification keeps the judicial system in its place, under the control of the electorate. Jury nullification, for example, is the major reason crusading prosecutors in Indiana don’t mimic their blue state counterparts and try to prosecute Joe for shooting a burlar in his home. They know an Indiana jury wouldn’t even give them an indictment. You can jump through all the hoops you want, and you will, because being part of the judicial system, it is your agenda to subvert the citizens to it, but that’s like citing Supreme Court decisions to claim that something is or is not Constitutional.

    You get OJ, but you also keep the Jack McCoy’s in the liberal states where they belong. Jury nullification is the ultimate check on the judicial system.

    rightwingprof (663991)

  17. the oath is a matter between me and the state, and when i leave the courthouse, it stays there.
    my conscience, unfortunately, goes wherever i go, and it will not permit me to become a tool of the state.
    regrettably, our state is not a state of perfect justice. apparently this was also the case in the days of the founders, when the people, the ultimate source of power in our country, also practiced nullification. william penn would probably have been executed absent nullification; pennsylvania would still exist but it would be called something else, perhaps steelervania.
    america is the only nation ever founded on an express antipathy between the people and the state. apprehension of the evils of too much state power and figuring out how to control it were common themes in the federalist papers and the dialogue of the times, and they are common themes among right-thinking people today. we the people do not surrender our sovereignty at the door of your courtroom, mr. frey. we retain it, even as you and the judge think of yourselves as sovereigns.
    i have no problem spending u.s. currency, even though it bears a slogan of trust to a god in whom i do not believe. i have no problem with jury nullification either.

    assistant devil's advocate (e539c3)

  18. To this non-lawyer, the law on nullification is hopelessly muddled. Yes, jurors take an oath to apply the law. However, there is no penalty for nullification.

    There’s no penalty to a judge for getting the law wrong, either. The usual remedy for an illegal judgment is reversal of the judgment itself. That’s what happens to jury nullifications in three of the four possible scenarios:

    1. A civil jury nullifies an “unjust” law, and rules for the plaintiff when the law says they should have found for the defendant.
    2. A civil jury nullifies in “unjust” law, and rules for the defendant when the law says they should have found for the plaintiff.
    3. A criminal jury nullifies an “unjust” element of a crime, and acquits a criminal defendant the law says they should have convicted.
    4. A criminal jury nullifies an “unjust” affirmative defense to a criminal violation, and convicts a criminal defendant the law says they should have acquitted.

    If a juries were supposed to judge the law as well as the facts, and jury nullification were a right rather than a wrong we are powerless to prevent, then the law ought to treat all four of the above jury nullifications identically. It doesn’t, of course; scenarios 1, 2 and 4 would all result in JNOV by the trial court, or in easy reversal on appeal. Only #3 survives appeal, and then only because the law generally allows no appeals of jury acquittals under any circumstances, whether such acquittals constitute jury nullifications or not. That’s because the policy is one of erring on the side of criminal innocence over guilt, not a policy of legitimizing jury nullification.

    Xrlq (f52b4f)

  19. If I couldn’t take the oath without reserving (in silence) the right to ignore it I wouldn’t take the oath.

    wamwam2 (eb36d3)

  20. Patterico —

    If a prospective juror refuses to take the oath, wouldn’t this be considered Contempt of Court, with a possible jail sentence? If not, isn’t this a fool-proof way of getting out of jury duty?

    LTEC (d17b04)

  21. Bradley Fikes:

    I would also say, “Gee, thanks a lot,” to the courts for not giving me any explicit guidelines on how to decide what is an exceptional case. (If these guidelines exist, someone please point them out to me).

    Legally, there are none. If you vote to nullify, you are choosing to step outside our system of laws. Only you can decide whether or not a given case is egregious enough to be worth doing that.

    Since this thread is terribly Hitler-deficient, allow me to address this deficit. Suppose a Nazi America began a policy of mass extermination, but preserved the traditional right to a jury trial, i.e., they’ll kill you for being an Elbonian-American, but only after a jury of your peers has decided, on proof beyond a reasonable doubt, that you at least 51% of your ancestry really does go back to Elbonia. If I were on such a jury, would I vote to acquit an obviously “guilty” party of 100% Elbonian blood? Hell, yes. But I wouldn’t do it because I thought I had the legal right to do it, I’d do it because this law was so awful that given the choice between preserving the rule of law and voting for lawlessness, lawlessness is now the lesser evil.

    Xrlq (f52b4f)

  22. Xrlq,

    A judge getting the law wrong is simply a mistake. It is comparable to a juror mistakenly applying the law. It is not comparable to a juror nullifying a law in defiance of a judge’s instructions.

    You also failed to address the most salient point: that there is explicit recognition in court decisions, even in Dougherty, that the nullification prerogative can be properly used in “exceptional” cases, although the jury may have to figure this out on its own.

    How else can you interpret language like this from Dougherty?

    When the legal system relegates the information of the jury’s prerogative to an essentially informal input, it is not being duplicitous, chargeable with chicane and intent [**61] to deceive. The limitation to informal input is, rather a governor to avoid excess: the prerogative is reserved for the exceptional case, and the judge’s instruction is retained as a generally effective constraint.

    Bradley J. Fikes (28f79a)

  23. For me, no problem taking the oath (I have other reasons for not wanting to serve on a jury). Even though there are laws with which I don’t agree, part of my belonging to society is my delegating to society as a whole the right to determine the laws which we will follow. Those advocating jury nullification believe it is for them, and not society as a whole, to decide which laws are right and which laws are unjust… and that’s wrong. They want the benefits of belonging to society without the responsibilities of following its rules.

    I wonder how many of the pro-nullification commenters (mitch?) would still feel the way they do if, for example, they were attacked and a jury didn’t convict the person who did it because some on the jury felt that anyone commenting on this site deserved a good beating? Remember, per the theory of jury nullification, ‘unjust’ is in the eyes of the beholder, it’s up to each person on the jury to make their own decision, so there wouldn’t be anything preventing a jury from doing something like this, right?

    And, by the way, some of your commenters refer to police misconduct and so on as reasons for nullification. But if a juror doesn’t believe a cop’s testimony, that is legitimate grounds for refusing to convict, isn’t it? And, as far as the prosecutors playing games with the system (whatever that is supposed to mean), just how is the average juror supposed to be aware of that in the first place? P: your abusing the system to get convictions of innocent people isn’t something you address in your opening remarks, is it?

    steve sturm (b5aa23)

  24. Xrlq,

    Your second reply doesn’t clear things up for me. On the one hand, nullification is carried out in defiance of the law. On the other hand, court decisions recognize where it can be legitimately applied, such as your Elbonian-American example. You would be acting in compliance with the court-approved intended use of nullification. How can that be considered going outside of our system of laws?

    Bradley J. Fikes (28f79a)

  25. I’ve been told by several criminal lawyers that I’ll never have this problem, because I’ll always be excused by the prosecution. Assuming that I actually get to that stage of the proceeding, I’ll take the oath, and proceed with what I was taught in 7th grade civics:

    To find a criminal defendant guilty, there are three things needed:
    1) the defendant must have done the act AND
    2) the act must have been a crime in the law when it was committed AND
    3) the doing of the act must have been a crime.

    The example given of the third thing above was the person who came upon a child drowning in the village pond. He lept in, swam out, pulled the child to shore, and so saved the child’s life. The village cop came along, and cited the rescuer for violating the “No Swimming in the Pond” law.

    The policeman (typically) addresses the first point (who did what), and the judge (typically) the second (what the law says, in this case that swimming was forbidden.)

    The jury (and I consider this to have been a great failure of the system that it GOT to the jury) aquitted. The judge was angry, and demanded to know what the jury was thinking. “We found that he was not swimming, but rescuing” was the reply.

    Whether lying or ignorant or stupid police are worse for “justice” … don’t get me started.

    Nullification is a way — the last non-violent way — to pull someone from undeserved rendering in the jaws of the “system of justice”. That their life may have been already rendered by the accusation itself and the subsequent “processing” … this little thing may be the balm needed for them to eventually recover.

    htom (412a17)

  26. Jurors the the triers of the facts. Their job is to determined what the facts are. Once that’s done, they are to apply the law the judges gives them to the facts as they have found them to be and in that way arrive at their verdict(s).

    Trying the law is therefore, most specifically the job of the juror. When they try the law, not only do they violate their oaths, they substitute their judgment for the collective judgement of the political branches who place the law on the books to begin with. Changing a law you don’t like begins with un-electing those who passed the objectionable statute to.

    In a republic, that’s how it works. Sorry Mitch, you’re simply a no nothing anarcist or bozo revoluntary out of touch with the American system.

    Ms. Judged (5c27b9)

  27. Bradley Fikes:

    How else can you interpret language like this from Dougherty?

    I interpret it to mean that legal wrongs sometimes constitute moral rights. Anything more would fly in the face of this:

    The breadth of the continuing prerogative of the jury, however, perseveres, as appears from the rulings permitting inconsistent verdicts. These reflect, in the words of Justice Holmes, an acknowledgment that “the jury has the power to bring in a verdict in the teeth of both law and facts,” or as Judge Learned Hand said: “We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.”

    to say nothing of this:

    This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy.

    Sorry, I just don’t buy that a court would use a phrase as disparaging as “so-called right” to describe something they really thought was a right, and not merely a wrong they knew the guy could get away with.

    Your second reply doesn’t clear things up for me. On the one hand, nullification is carried out in defiance of the law. On the other hand, court decisions recognize where it can be legitimately applied, such as your Elbonian-American example. You would be acting in compliance with the court-approved intended use of nullification. How can that be considered going outside of our system of laws?

    I would be acting in line with your interpretation of one paragraph of the Dougherty opinion, but clearly out of line with the two parts I quoted here, along with others I quoted in an earlier thread. The only blessing I’d get from Dougherty is a general acknowledgement that in some situations, going outside the law is the moral (not legal) thing to do.

    The closest example I can think of is the right to bear arms. Most people care about it for purposes of self-defense, but originally it was more about preventing standing armies and even ensuring that the people would be in a position to rebel again if needed. You can’t expect any court of law to endorse armed rebellion under any circumstances. The most you can expect is for today’s courts to acknowledge that such circumstances are hypothetically possible. If they ever come, the only benefit of today’s RKBA is that we the people will be armed, not that we’ll have the legal right to be – which at that point, we almost certainly won’t.

    Xrlq (0fda8c)

  28. Oops! I meant to, and should have said “Trying the law is most specifically NOT the job of the juror.” Sorry for the confusion.

    Ms. Judged (5c27b9)

  29. The clear weakness in your argument, Patterico, is the answer to the question of the legality of the instructions given to the jury by the court.

    As far as I know, the way the courts have ruled, is that a judge can deny the defense the ability to inform the jury about its right to nullify, and can dismiss or even charge jurors who during the course of the trial or jury deliberations starts arguing for jury nullification, but that nullification is a valid power of the jury.

    Which is of course silly. You have the right to do this, but you aren’t allowed to argue for it to the other jurors and no one is allowed to tell you about it.

    Arguing that jury nullification is somehow improper is to argue that once the citizenry vote their representatives into office, they somehow relinquinsh all power over the laws save through arguing unconstitutionality. Which strikes me as ridiculous. The government allegedly derives its power to govern through the consent of the people. No, we are not a direct democracy. But I disagree entirely with the premise that the people wholly hand their control over legislation to their representatives and the appellate courts (are ANY appellate court judges elected, or are they all nominated by the Executive Branch and approved by the Legislative? I don’t know).

    I think that most opposition to jury nullification these days is coming from people who recognize (and disagree with) the tide of public opinion – admittedly very slowly – starting to turn against the illegalization of marijuana, compounded by a general rise in dissatisfaction with the government over the past few years. From what I’ve read, nullification in marijuana trials in some areas is growing very rapidly.

    Of course there is the problem of juries, for reasons of race or otherwise, refusing to convict when someone is clearly guilty of a violent or otherwise serious crime, but I don’t think that is enough to throw out the baby with the bathwater.

    Chaos (27ce18)

  30. Please stop talking about this in completely abstract (and, thus, irresponsible) terms: There is nothing abstract about jurors ignoring law. Instead of going on about “exceptional cases,” state a case where the jury is right to ignore the law and state why the jury is right to ignore the law. Further, state the point of having laws that people can simply ignore.

    Federal Dog (9afd6c)

  31. Xrlq

    The only blessing I’d get from Dougherty is a general acknowledgement that in some situations, going outside the law is the moral (not legal) thing to do.

    So why don’t the courts say outright that nullification is illegal, and that jurors who nullify are acting illegally? Why the don’t ask don’t tell?

    Bradley J. Fikes (28f79a)

  32. I think the Dougherty court comes pretty close to saying exactly that. You don’t say “Our reference to the ‘intensity’ factor underlying the pro se right should not be understood as embracing the principle of ‘nullification’ proffered by appellants” or disparage nullification as a “so-called right” they had “no right to exercise” if you really think it is a right. Nor, for that matter, would it make sense to uphold a judge’s right to lie and tell you you don’t have that right, if in fact you do. The only rational explanation of these statements – plus the fact that a jury nullification resulting in anything but a criminal acquittal is appelable de novo – is that the court believes jury nullification is not a right, just a wrong the court is powerless to prevent.

    Xrlq (0fda8c)

  33. Patterico,

    I would not bend the law to my own personal preference. But would I be prepared to disobey the judge’s instructions if I truly believed that he/she was bending it? Yes. Not that a judge would ever play politics in a trial, of course.

    Now I have a q, a different one but related, in return for you: would you, as a witness, shut up when a judge told you to, omitting what you knew to be highly relevant testimony? What if you felt that the part the judge ordered you to omit was essential to your answer to a key q and that omitting it would constitute misrepresentation?

    [Sounds like the plot for a courtroom drama, eh? Or has it been done already?]

    ras (a646fc)

  34. p.s. are you really just trying, with this thread, to see how many people are in favor of “activist judges” when they get to be the judge?

    ras (a646fc)

  35. “would you, as a witness, shut up when a judge told you to, omitting what you knew to be highly relevant testimony? What if you felt that the part the judge ordered you to omit was essential to your answer to a key q and that omitting it would constitute misrepresentation?”

    Any such judicial action is ripe for appellate review, which is a proper remedy, unlike emotional jurors deciding to ignore controlling law. Let the appellate courts hash it out: That’s why appeals exist.

    Federal Dog (9afd6c)

  36. How can jury nullification possibly be compatible with Due Process of Law?

    nk (bfc26a)

  37. Let the appellate courts hash it out: That’s why appeals exist.

    Fat lot of good that does a defendant who gets screwed because the judge fails to do his job correctly. If everyone in the room knows he’s doing it, why put the defendant through the conviction and appellate process? Who pays his costs?

    Pablo (efa871)

  38. No matter how the legal professionals, particularly prosecutors, desire to control juries, it is the jury that has the final say; that is the legitimate foundation of the jury system.

    The law, as well as the facts, are being judged by a jury. This is the basis for any power a judge or prosecutor has. If you, as a prosecutor, are swimming in a sea of corrupt citizens you are stuck with it.

    RJN (e12f22)

  39. Fed Dog,

    But the pt, as with P’s orig q, is not what the appellate courts might do; it’s what would you or I do.

    Would we knowingly violate our oaths, be it as a juror or as a witness? And under what circumstances?

    [And, tho tangentially, why should we expect an appellate court to treat its responsibilities any more seriously than we treat our own?]

    ras (a646fc)

  40. Everyone is talking about this is in the context of the law-applying part, but is it still considered “jury nullification” if the jury simple refuses to find the facts as a reasonable person would? For instance, the jury thinks that some guy is being railroaded on a looting charge, let’s say. The evidence is pretty clear that he’s the guy, but there’s some mitigating factor that makes the jury want to acquit him. They, as the finders of fact, find that there is a reasonable doubt that he was the guy and so don’t need to reach the law-applying part. Is that jury-nullification?

    As for me, even with my terrible personal experience with prosecutors, present host excepted, and cops, I’d take to oath, and I’d try to follow it. Of course, for me, using my common sense and life experience, there are many more doubts now that I believe are “reasonable” than when I was younger.

    jinnmabe (cc24db)

  41. ras–

    Yes, and because there are remedies to address the problem described, it is improper to abrogate law instead of resorting to those remedies. As for your second remark, yes: People are potentially mistaken and corrupt, including appellate judges. That’s equally true of jurors, which is precisely what makes jury nullification unacceptable and profoundly offensive. At least in the case of judicial error, the damaged party can appeal the ruling. People require similar protection from injustice caused by mistaken or corrupt jurors replacing law with personal emotions.

    Federal Dog (9afd6c)

  42. Where is it written that jurors are simply “triers of the facts”? I’m certain that the legal system would like that to be the case, but what is the constitutional basis for this?

    Regarding witnesses, who in many jurisdictions take an oath to tell the truth, the whole truth, etc.: what happens when a judge orders them to ignore their oath and not tell the whole truth? What are the ethical ramifications of that? Or is “truth” just another legally defined concept, like “ethics”, with no connection to common moral reality?

    BTW, are attorneys required to tell the truth, the whole truth, and nothing but the truth, and if not, why not?

    great unknown (a90377)

  43. What’s that old quote about jurors judging jurors?

    htom (412a17)

  44. Briefly read the responses. Looks like some people have a lot of intensity about this issue. I don’t. Here’s my answer.

    If I knew that there was no way I could find a defended guilty I would not take the oath. But there are circumstances where I’d probably vote to nullify. Here is an example:

    A manslaughter charge where it turned out that a home owner shot a burglar. Make the particulars as slanted as you need to for this to be a tough call. I’d have a very hard time sending someone to prison for that.

    What should I do there? Vote to send her to prison? That feels really wrong to me. Tell the judge that I can’t find her guilty and ask to be removed from the jury? Would I get in trouble for that?

    Basically what are my options on a jury if I decide after I see the evidence that I can’t, in good conscience, vote to convict?

    joe (066362)

  45. “If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?”

    Ooh! Ooh! I know! He’s a rogue cop who lied about probable cause in order to convict a guilty criminal, and I’m not! There’s a difference right there!

    Not all oathbreaking is morally equivalent. Compare and contrast:

    * A rogue cop who lies under oath to convict a guilty defendant.
    * A juror who, contrary to his oath to obey the court’s instructions, acquits a defendant guilty of a law he disagrees with.
    * A kidnapping victim who breaks his oath to follow abandon his religion and follow Islam in order to secure his release.

    What makes the third different from the first? Everything.

    Or, to put it into even sharper relief, you point out that in order to serve as a juror you must swear to obey the court’s instructions. Suppose those instructions included, “By the way, the defendant is obviously guilty. You must convict him.” Would the jurors be bound to abide by that? Suppose the law required that jurors swear an oath to well and truly try the case, render a true verdict according only to the evidence presented, and convict all black defendants. Would a prospective juror, appalled by this state of affairs, be honor-bound to refuse the oath, or would he be justified in foreswearing himself?

    Voice of Reason (f2aed0)

  46. @federal dog:
    ok, i’ll give you specific examples.
    in a marijuana possession case, or a woman charged with prostitution, the jury is right to ignore the law.
    laws which proscribe victimless conduct and restrain the natural liberty of a citizen ought to be ignored. at least in the context of a jury, a citizen’s conscience is just a higher law than a statute.
    the point of having laws that we can simply ignore is to validate the moral dudgeon of one powerful constituency or another: marijuana prohibition, originally sold on a racist platorm, has been taken over by legal drug pushers (alcohol, tobacco, pharmaceuticals) afraid of losing market share. prostitution laws are just a futile effort to enshrine patriarchal, judeo-christian morality. i don’t have to subscribe to these agendas. i’ve never even been summoned for jury duty, despite decades of being a property owner/registered voter/licensed driver, but if i had to serve, the crucial factor in determining my vote would be whether i would be comfortable with it ten years later, whether i could explain it to my friends without shame.

    assistant devil's advocate (e539c3)

  47. BTW, you legal historians here, who came up w/that oath about following “the instructions of the court” in the first place? Shouldn’t it instead say “according to the law?”

    The judge could then give advice to the jury as to what the law says in certain situations, but that advice would be tempered by the jurors’ own knowledge of the basic principles with no conflict to their oath.

    It would make it the jurors’ right to be the arbiter of such things as the meaning of “reasonable force,” according to their own interpretation, not the judge’s.

    Juries exist largely for just that purpose, do they not? When they nullify, it is a little Jeffersonian revolution each time, sans bullets. Maybe for the better or maybe not, but is it not an important intended balance to judicial abuse?

    [Or to put it all differently, if a judge indirectly orders a jury to, for ex, convict me of assault because I punched a mugger and in the judge’s view, let’s even say supported by precedent, that constituted excessive force … is it still not the jury’s right to determine for themselves whether it was or not?]

    [Issues like the reasonableness of force used are always jury questions. And judges can’t ever order a jury to convict. Part of the problem here is that you folks underestimate the wide discretion the law already gives juries. — P]

    ras (a646fc)

  48. ada,

    Turn your args around – for ex, a devout KKK’er who could simply never convict a fellow Klansman – and you can see the slippery slope you are on.

    Jury nullification should be, like an emergency fire alarm, used only when truly necessary. It should not be a mere spotlight for anyone’s superior morality. Safe, legal and rare?

    p.s. You might wanna fix the shift key on your computer; be nice if it worked.

    ras (a646fc)

  49. BTW, you legal historians here, who came up w/that oath about following “the instructions of the court” in the first place? Shouldn’t it instead say “according to the law?”

    No, it’s the judge’s job to rule on the law, not theirs. If the court of appeal cannot rely on the assumption that the jury applied the law according to the judge’s instructions, how can it tell whether the law was followed or not? In that case, even the worst conceivable jury instructions should not constitute reversible error; sure the instructions were bad, but maybe the jury didn’t follow them!

    Xrlq (0fda8c)

  50. “the crucial factor in determining my vote would be whether i would be comfortable with it ten years later, whether i could explain it to my friends without shame.”

    Virtually anything could be rationalized on this logic, including bigotry, error, and malice. The proper course of action is to get offending laws repealed through legislative action. The effect of rationalizing disregard for law is to foster disregard for law. People can rationalize even the most self-serving and vicious principles. What justice is possible when such impulse supplants legal principles that society has collectively legislated to govern itself?

    Federal Dog (9afd6c)

  51. The proper course of action is to get offending laws repealed through legislative action.

    And so when a state, say, legalizes medical marijuana or marijuana in general through referendum and the federal government abuses the Commerce Clause to nullify (how ironic) the will of the people of that state, what would your response be? Or, to get off the mary jane horse, any time when the federal government asserts its supremacy through questionably justifiable means?

    Because the impression I’m getting is that you don’t have a problem with it.

    There is nothing abstract about jurors ignoring law. Instead of going on about “exceptional cases,” state a case where the jury is right to ignore the law and state why the jury is right to ignore the law. Further, state the point of having laws that people can simply ignore.

    This is terrible logic. “Laws are there for a reason!” Just like the laws that used to separate blacks and whites in nearly all public places and at all nearly all public functions?

    I can state a very simple case: any marijuana possession case. Any jury would be totally justified in ignoring the law. And why? Because the federal government uses ridiculous arguments to justify the continued illegalization. Scientifically unsound, factually incorrect, condescending, ridiculous arguments. Marijuana laws are a waste of the money the government takes from me, spent on futile anti-marijuana public relations campaigns, the amount of time public officials spend on anti-marijuana efforts, from politicians to the police, their salaries paid by my tax dollars, and on court costs and such stemming from the arrests of 20-year old kids who otherwise are entirely productive members of society.

    If the government could make an argument for continued illegalization that wasn’t based on ignoring scientific research and Reefer Madness-style fear tactics – although these days they’re pushing more the unmotivated slacker tripe, it’s always hilarious to hear one of those commercials on the radio about “missing out” on going to a movie or something because you’re sitting in some dark living room getting high (just what are the people who write those things smoking? I want some) – until then, with the federal government’s repeated abuse of the Commerce Clause, jury nullification all the way. What other recourse is there?

    I hate to sound off on tree so much but it’s the only good example I can think of, for the vast majority of the rest of the time jury nullification is ridiculous.

    Chaos (27ce18)

  52. i acknowledge that jury nullification is not always a good thing, that it has been used in the past to acquit murderous klansmen, and more recently, to acquit a murderous o.j.
    “the effect of rationalizing disregard for law is to foster disregard for law.” did anybody tell this to g.w. bush?
    “what justice is possible when such impulse supplants legal principles that society has collectively legislated to govern itself?” there is no such thing as objective justice in any event, because there is no such thing as objective reality; the photon that bounced off the object, enabling you to see it, changed the object so that it is no longer what you see. society no longer collectively legislates anything, most congresspeople are owned and operated by corporations; just because they sit, heel, come and stay at the corporate beck doesn’t mean i have to. all humans harbor a little bigotry and malice, and are prone to error, don’t you ask me to be the very first to relinquish mine!

    assistant devil's advocate (e539c3)

  53. Xrlq,

    No, it’s the judge’s job to rule on the law, not theirs.

    If this humble Canuck can ask a snarky sounding q w/out actually intending snark: where does the US constitution say this?

    ras (a646fc)

  54. ada

    itisveryhardtofollowyourcommentswhenyou
    donotusepropercapitalizationorparagraphbreaks
    orstufflikethatandyourideasjustrunonandonmaking
    yourviewsappearaspoorlyreasonedasistheirpresentation.

    ras (a646fc)

  55. First off, I consider the “oath” to be illegal. An attempt by the state to nullify the constitution. Secondly, if I get in the Jury room and decide to follow my conscience, what can the Judge do about it? Nothing.

    Bill Millan (0b61a8)

  56. Anyone ever answer “no” to that question? And if so, did the judge start making nasty noises about “contempt”?

    I bet he did. Can you say “coerced”?

    mojo (8096f2)

  57. @ras:
    i am sorry for your discomfort. i do use proper paragraph breaks. i also use proper sentence breaks (two spaces after the period) but patterico’s blogware, among many other applications, does not recognize this and compresses it to one space.
    i have typed in all small letters on the internet ever since al gore invented it. just a habit/quirk/trademark, or if you like, a fetish. i have a number of interesting and unusual fetishes; just two days ago i indulged in my big rock fetish. people ask me why i would spend hundreds of dollars on a giant boulder and more money bringing it here and installing it, well, because i can, and it pleases me to do so. big rocks and small letters, that’s me!

    assistant devil's advocate (e539c3)

  58. Xrlq,

    Your claim:

    The only rational explanation of these statements – plus the fact that a jury nullification resulting in anything but a criminal acquittal is appelable de novo – is that the court believes jury nullification is not a right, just a wrong the court is powerless to prevent.

    is at odds with this from Doughtery:

    The jury system has worked out reasonably [**57] well overall, providing “play in the joints” that imparts flexibility and avoid undue rigidity. An equilibrium has evolved — an often marvelous balance — with the jury acting as a “safety valve” for exceptional cases, without being a wildcat or runaway institution. There is reason to believe that the simultaneous achievement of modest jury equity and avoidance of intolerable caprice depends on formal instructions that do not expressly delineate a jury charter to carve out its own rules of law. . .

    “Safety valve for exceptional cases”, “play in the joints,” “marvelous balance” — these statements simply do not accord with your claim that courts view nullification as always wrong.

    Then the majority muddies the water with this:

    We have taken due and wry note that those whose writings n44 acclaim and invoke Roscoe Pound’s 1910 recognition of the value of the jury as safety valve, omit mention of the fact that in the same article he referred to “the extreme decentralization that allows a local jury or even a local prosecutor to hold up instead of uphold the law of the state” as one of the conditions that “too often result in a legal paralysis of legal administration,” n45 that his writings of that period are expressly concerned with the evils of the “extravagant powers” of juries, n46 and that in 1931 he joined the other distinguished [*1135] members of the Wickersham Commission in this comment: n47

    So it’s not suprising that you end up with mushy statements such as this:

    What makes for health as an occasional medicine would be disastrous as a daily diet.

    followed by:

    On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, n53 and [*1137] must independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law. An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure requisite for true freedom, for an ordered liberty that protects against anarchy as well as tyranny.

    So jury nullification would be “disastrous” if it happened commonly, but if used sparingly for exceptional cases, nullification “may even enhance, the over-all normative effect of the rule of law.”

    So is nullification a wrong or a right? According to Dougherty, it can be either, depending upon the context.

    Bradley J. Fikes (ab19c5)

  59. Thost last two grafs were my own interpretation, not from Dougherty itself. Just want to be clear on that point.

    Bradley J. Fikes (ab19c5)

  60. I’d have no problem with taking the oath… and then evaluating the court’s instructions/behavior for validity. If given improper instructions by a judge, I’d first attempt to bring the matter to the judge’s attention. If that failed to remedy the situation, and an injustice seemed to be in the offing, I’d do everything in my power to avert it.

    Jury nullification is one of the few remaining means common folk have to combat the growth of anarcho-tyranny (or just google it) in our society. I doubt that there is anyone living in these United States who has not violated, wittingly or not, some law. All that remains is for some government functionary to get a bee in their bonnet and YOU could be on the chopping block for acts that any person with common sense would recognize as not truly criminal, just “criminal” in some government bureaucrat’s plan (for turf-building, micromanagement of serfs citizens, etc. Pournelle’s Iron Law of Bureaucracy often comes into play in anarcho-tyranny).

    Jury nullification? Had I been on the Martha Stewart jury, you can BET I’d have been fighting for nullification. An oath pledged to an arm of government MUST imply a bilateral covenant, requiring that the government uphold its responsibilities. The whole Stewart trial was an abortion of justice. In such a case, my oath as a juror would have been nullified by the judge and ptrosecutors.

    Unfortunately, steve sturm’s observation, “And, as far as the prosecutors playing games with the system (whatever that is supposed to mean), just how is the average juror supposed to be aware of that in the first place?” is all too pointed. More and more, Americans are becoming seriously subliterate. And not just in terms of understanding the printed word, but culturally, historically. How indeed can one even expect ordinary persons to even have common sense, when even that commodity is so uncommon?

    Imagine this scenario: a person, in good conscience, refuses to take an oath which violates his responsibility to make judgements based on the evidence and his own best understanding of the law (follow the court’s instructions? Like was done in the Stewart case?). Now what’s the judge going to do? He has a range of options, but you can probably bet on some form of censure.

    Anarcho-tyranny at work.

    Again, I’d take the oath, assuming the court would be conducted in the interests of justice, but were I to see the court behaving as it did in the Stewart case, I’d give it the biggest slap upside the head that I could.

    (Yes, I know the jury affrimed that Martha “lied” to federal investigators… but that verdict relied in large part on testimony of a prosecution witness who was promptly indicted for perjury as soon as gthe trial was over… and on giving weight to government investigators’ testimony as to what she said. Investigators who definitely had a lot to lose when they could not find any credible evidence of the crime they were supposedly investigating to charge her with).

    David (d4d510)

  61. Thats all the idea of the ICC its to have a person tired without a jury by left-wing antiamerican judges from various leftists nations its time to boot the UN out and to declare the ICC unconstitutional

    krazy kagu (c6ad08)

  62. Jury nullification is like euthanasia, or bidding a short club at Contract Bridge. It should be “illegal,” it is not something a lady or gentleman should admit to, and it should never be done except in rare cases where it is absolutely the least bad option.

    Mahon (15e701)

  63. david: how were the stewart jurors supposed to know the prosecution witness had lied? to take another example of jurors not knowing enough to justify nullification (a pet peeve of mine): how would jurors know the prosecution had crippled the defense by threatening to bring charges against potential defense witnesses, thus keeping them off the stand? and to disagree with you, the stewart trial was not an abortion: the lady got caught lying to investigators and trying to cover her tracks. that she was covering up something that wasn’t illegal is besides the point (a point libby’s defenders also seem to be missing and clinton’s defenders missed). and xrlq: what’s with all the commenting, don’t you have a new kid to be paying attention to?

    small caps a tribute to ada…

    steve sturm (b5aa23)

  64. “Any jury would be totally justified in ignoring the law.”

    Beyond making a mere assertion lacking in any reasoning or foundation here, you completely missed the point I made. Please reread my post, and carefully this time. Then try to respond, and offer some reason for your assertions when you do.

    Federal Dog (9afd6c)

  65. Part of the problem here is that you folks underestimate the wide discretion the law already gives juries.

    You hit the nail, just not on the head.

    As others have mentioned it is ‘trial by jury,’ not ‘trial by jury but only as the judge allows.’ You say the law gives the jury discretion, I say the jury decides the law, silly oaths meant to obsfucate not withstanding.

    ThomasD (21cdd1)

  66. ““Laws are there for a reason!”

    Chaos–

    You are doing a hatchet job on yourself. Reread my posts. That is in no way what I said.

    Sheesh. Take a beat and think before emoting. This is exactly why juror emotion cannot acceptably abrogate legal principle: Emotional people ignore basic facts and information relayed to them in favor of indulging their emotions.

    Federal Dog (9afd6c)

  67. Emotional people ignore basic facts and information relayed to them in favor of indulging their emotions …

    But that’s what trials are about! Best story wins!

    htom (412a17)

  68. Patterico:
    I’m sure you addressed this analogy but I can’t find it.

    The argument for jury nullification, in part, is that citizens, just like law enforcement officers or prosecutors, have the discretion not to charge or prosecute someone for a crime.

    We can all come up with examples, small and large, from the traffic officer who allows a motorist to drive away with a warning even though they were clearly speeding to a prosecutor willing to drop some charges in exchange for cooperation from the defendant in prosecuting other “bigger” individuals.

    When a police office doesn’t arrest someone or a prosecutor drops charges (not enough time, other more important cases to go after, et cetera), are they violating their oaths to uphold the law?

    SMG

    SteveMG (b96bba)

  69. Federal Dog: “Further, state the point of having laws that people can simply ignore.”

    Not the issue. There are many such laws, which Prosecutors ignore. For example, cohabitation was illegal in Massachusetts until about a decade ago (when 2 police wanted to cohabitate, and as police were motivated to make it legal) and oral sex was illegal in Connecticut. These laws were, of course, rarely if ever enforced after the 1960s.

    DWPittelli (a38ee9)

  70. Wow. Where does it say in the Constitution that juries are triers of fact? What kind of question is that? The constitution places in the hands of the legislature the power to pass bills (that laws to you that should know better, but apparently don’t). The executive signs them into law. When so enacted they constitute the official position of the governed on the subject they deal with so long as they continue to exist.

    Individual jurors do NOT have the option of deciding which law they will obey and which they will not anymore than John Q. or Mary Jane Citizen as they make their way through the daily grind.

    While we’re on the topic, let us all agree that juries are not empanled to make law. Neither are judges. The legislature does that, as pointed out above. When they and the lawyers arrive in the courtroom to try a case, the law is already there for them.

    In order to determine what law applies in a particular case, the facts must be determined. The job of the jury is to do that. Once that is clear, the law that applies to those facts controls.

    From time to time a judge does provide inaccurate, incomplete or erroneous instructions. It does not happen often. When it does, the thorny issue of deciding just where the mistake was made and how it may have affected the case is placed in the hands of the appellate courts.

    Jurors should not, and in most cases are not capable of making that determination. Most of them lack the legal training and experience to do it properly. And even if some of them did, most will not. Then what? A mess you say. Give yourself a gold star.

    What happens most often is that one or two who think they know better than everybody else in the state simply refuse to follow the law. Then what? A mistrial is declared and the entire process starts all over again . The overwhelming number of retrials end with conviction. Who picks up the tab caused by a couple of arrogant know it alls? If your answer is “The taxpayer”, give yourself another gold star. This time with an oak leaf cluster.

    Jury nullification has no place in the American justice system. It is illegal and should be. We are a nation of laws, not men (or women).

    Civic 101 class now closed. Next?

    Ms. Judged (5c27b9)

  71. ras: “Turn your args around – for ex, a devout KKK’er who could simply never convict a fellow Klansman – and you can see the slippery slope you are on.”

    1) At worst, we’d get a hung jury, unless the Klan was really popular in that county.

    2) A Klan member would do this regardless of whether nullification were broadly accepted or not.

    3) The Klan member could be smoked out with a question about such membership (which one would hope would be asked in a racially inflammatory trial). And unlike the nullification thought crime, his Klan membership would be relatively clear-cut evidence for his own perjury conviction.

    DWPittelli (a38ee9)

  72. “i acknowledge that jury nullification is not always a good thing, that it has been used in the past to acquit murderous klansmen, and more recently, to acquit a murderous o.j.”

    I doubt very much that the OJ jury explicitly or even consciously engaged in nullification. They talked about the racist cops who could not be assumed (beyond a reasonable doubt) to have not planted evidence.

    I was once on a jury that aquitted on a DUI. The driver failed a field sobriety test and a breathalyzer. No doubt the prosecutor thought it was a nullification, and maybe it was for some jurors, but we only discussed reasons for actual doubt on the facts, and I personally aquitted on the merits. (I do not have a soft spot for people who drive with illegal blood alcohol levels.)

    DWPittelli (a38ee9)

  73. “Not the issue. There are many such laws”

    Not my question. BTW, as already stated, such laws are properly repealed by legislative action.

    Federal Dog (9afd6c)

  74. Ms. Judged — Looking at the words of the law, passed and signed, it would seem that a prosecutor who threatens an accused with a felony charge to get a guilty plea to a misdeameanor charge is guilty of assault, extortion, or both. As well as some kind of ethical violation, at least, for not charging the felony, if he thought that was a convictable charge. If he didn’t, then the act of threatening that charge would be a violation.

    htom (412a17)

  75. DWPitelli,

    My KKK analogy was but one example, mostly to illustrate that overpoliticizing a juror’s role can also be a slippery slope leading in any direction at all. Your points are well taken.

    Ms. Judged,

    Is it only jury nullification of legislative prerogative, then, if the jury strikes down a judge-made law or definition?

    For ex, if per my mugger example above, judge-made precedent exists saying that my punching a mugger was excessive (the hypothetical statute not explicitly mentioning fisticuffs per se, merely “excessive” force) …. then what is left for the jury to even decide?

    Definitionally, do you only consider it jury nullification when they strike down unambiguous legislation a.o.t. judge-made or jury-made precedent?

    ras (a646fc)

  76. Patterico, here is my answer to you.

    If I was actually forced to sit on a jury, I’d take the oath and do my best to make sure the rest of the jury honored it.

    However, I want absolutely nothing to do with the US justice system due to its complete failure to put forth professional, competent juries. Too many “average” citizens have no business being on a jury, but will end up on a jury because of the way juries are selected in the US. Part of the reason so many lawyers grandstand and push frivilous cases is that they are playing to juries they know can’t honor that oath due to lack of education, lack of experience, and lack of interest. Until you have full time paid juries who’s sole purpose is to sit in court and try cases, you will have problems.

    Mark (8c2339)

  77. Question: if our host’s apparent position, that jurors must take and abide by an oath to follow only the law as given and the instructions of the judge, would that not provide a pretext for trying jurors who acquitted a defendant, if the State believes the defendant must have been found guilty under the law and the judge’s instructions?

    If the oath is enforceable, then juries are under the pressure of the State to convict, rather than to be impartial, because there would be no penalty for a guilty verdict, where one might occur following an acquittal.

    Of course, if the oath is not legally enforceable, why have it at all?

    [Dana, you don’t seem to understand the oath at all. It’s not an oath to convict, for God’s sake. It’s an oath to obey the judge’s instructions. And no: no juror will ever be prosecuted for acquitting. Even if they explicitly said afterwards that they’d nullified, it’s impossible for me to imagine a prosecution. That doesn’t mean it’s not important to follow the judge’s instructions. It is. — P]

    Dana (3e4784)

  78. Sorry Mitch, you’re simply a no nothing anarcist or bozo revoluntary out of touch with the American system.

    Which is why jury nullification – for whatever reason – is essential. You have no faith in the general public – they are too stupid to determine if a conviction should occur, and thus must be forced under penalty of jail, to follow the judges instructions. Screw that.

    Individual jurors do NOT have the option of deciding which law they will obey and which they will not anymore than John Q. or Mary Jane Citizen as they make their way through the daily grind.

    Oh really? What is the penalty for jury nullification? None. Thus they have the option to decide the facts and the law, and the hell with the judges and prosecutors.

    mitch (55069c)

  79. wtom:

    What laws are you talking about? Be specific for I cannot provide an answer if you are not.

    ras:

    I’m not sure I understand your question either. Jury nullification is what JURIES do when it occurs. The legislature passes laws and the president or the governor signs them into law. Jury nullification occurs when the jurors or some of them refuse to follow the law.

    To be sure there are some “judge made law”. There shouldn’t be, except in very limited circumstances having to do with legal procedure or the interpretation of a law that is not clear on its face or in the manner it is applied.

    Most of the conversation on this topic has to do with criminal law. The “mugger” example you talked about most probably arose out of a civil suit. That is, where the mugger sued the victim who punched him in self defense. The law generally allows a person who is threatened to use “reasonable force” in defense of himself, his family and his personal or real property. What is the proper amount of force is almost always a jury question based upon the law of self defense. To be sure, if an appellate court felt that the jury had applied the wrong standard, for instance by using more force than was reasonably necessary under the circumstances, the jury’s verdict could be reversed and the case sent back to the trial court. But that’s not jury nullification in the same sense we’ve been talking about it.

    Hope that helps.

    Ms. Judged (5c27b9)

  80. Mitch:

    By your most recent comment, you prove my earlier assessment. You really ARE a know nothing anarchist AND a bozo revalutionary. I do have faith in the public. They elect legislators who pass the laws they think best serve the public interests. A non-elected gaggle of jurors are elected to nothing. We know next to nothing about them. The have not participated in public debate so that their thoughts can be known an debated. They are a small number of almost anonymous citizens sworn to do one very specific task. That is, try ONE case.

    The penalty for jury nullification is twofold. First it is a deliberate lie made under penalty of perjury. Check out Penal Code Section 118 for starters. Second, it is contempt of court. Last it undermines respect for the system. If every mitch can come into court determined to level his own perverted version of the law at the case, answerable only to himself, no fairness is possible for the simple reason that “fairness” would be impossible to define. Anarchy, you see? You are one. Live with it.

    Ms. Judged (5c27b9)

  81. Ms. Judged:

    You are ignorant of the most fundamental concept of our law. We the people grant power to legislators, and courts, but we we don’t trust them implicitly. They need watching. Juries help in this watching; in fact the first thing we the people required of our hired guns, back in the day and now, is trial by jury.

    It is clear that you think that the public at large is a gaggle of nobodies elected to nothing.

    [RJN, juries are there to make sure the government is properly *applying* the law that citizens, through their representatives, have decided to govern themselves by. They do not exist as a freestanding Legislature of 12. The law, as created by duly elected representatives or you and your fellow citizens, is quite clear on this point. — ]

    RJN (e12f22)

  82. Some thoughts…

    The construction of the jury nullification vs. not is always tough, at least for me. I tend to see it as an abstraction. In the world we currently live in today, there is no place for jury nullification. There just isn’t. But could I conceptually envision a world where this is the case?

    Suppose we are seated to a federal jury trying Xrlq (although we do not know him from Adam for this example) for violating certain aspects of the McCain Feingold Campaign Finance Reform, specifically, let’s say that 45 days from the date of election Xrlq, starts going on some major issue advocacy that helps George Allen against Webb. The instructions come back and for certain under the facts as asserted and the law as instructed, we’d have to convict X.

    I honestly concede I’d have a darn hard time doing that. Certainly, when I took the oath I anticipated that I would do all that I swore, but when I saw the case as assembled, knowing that which I do about the first amendment I cannot see that the law is constitutional. Sure, I’m not a Justice of the Supreme Court, but I can read. Let’s make it more extreme say the law is trying X’s wife for voting in an election where the state authorities have forbidden women from voting. What does one do? Does one, say…well I swore such an oath I must uphold it? Or does one say, the constitution is greater than the law, and the 19th is pretty clear on this point. What’s the answer in that case? Since both are hypotheticals is this one unfair?

    Do we convict irregardless because of our oath and etc? Do we say wait, there is an error in the law? Or what? Do we deceive ourselves and say just not convinced beyond a reasonable doubt? Is there a category error I am making and need to have pointed out to me?

    As to Patterico’s question what makes this different from the corrupt cop. A couple things, the position of authority in the cop, makes the situation worse, the cop is motivating towards a conviction against someone who has done no crime. The jury is seated once, may never be called again together and has no authority beyond the single case. Lastly perhaps James established the biggest distinction
    “mercy triumphs over judgment. ”

    I don’t know if that get’s anywhere, and I’m trying to be weaselly on purpose because I’m just kind of weaselly in my own mind on it.

    A Common Commenter (a256da)

  83. The oath is useless if not enforced. If enforced the jury pool will shrink and no conviction will be possible. Jury nullification is a fact of life regardless of what the law says. If we can’t write laws to reflect practical reality, why have laws?

    LorenU (851ec1)

  84. RJN, juries are there to make sure the government is properly *applying* the law that citizens, through their representatives, have decided to govern themselves by. They do not exist as a freestanding Legislature of 12. The law, as created by duly elected representatives or you and your fellow citizens, is quite clear on this point.

    Perhaps that sums up well my opinion on the matter. But that “proper application” can be a tough nut to crack.

    [So it’s sometimes hard to decide whether the defendant is guilty or not guilty. Nobody said it’s always easy. What should be easy is this: if the defendant clearly broke the law, as instructed by the judge, beyond a reasonable doubt — and you took an oath to apply the judge’s instructions — you convict. If you don’t like the law, work to change it, don’t flaunt it. — P]

    A Common Commenter (a256da)

  85. People v. Patterico:

    Charge: Deliberate Inflammation of Idiots via Jury Nullification Throwdown.

    The Court’s Jury Instruction: He’s guilty, ladies and gentlemen. You are instructed to go find him guilty. Hurry up. Golf in 15 minutes.

    My verdict: I swore to uphold the instructions. I’m finding him guilty. I explained to the other jurors (who didn’t want Patterico convicted as badly as I did) that if the judge instructed incorrectly, that’s a matter for the courts, including the appellate courts, to decide, not for the jurors.

    Post-verdict: I admit I was surprised when we were all given stones to throw at the newly convicted miscreant. I had one complaint. “I want a bigger stone!”

    –JRM

    JRM (de6363)

  86. I agree that to apply ‘Jury nullification’ to a case I am hearing as a juror involves breaking the oath mentioned, thereby retroactively committing perjury. I would not ordinarily do so simply because I don’t like a law – say a drug law.

    However,

    IF the case was a really stinking injustice that the Law did not deal with equitably, and I could not dredge up some grounds for ‘reasonable doubt’, then I would vote against the Law in the full realization that I was breaking the Law. The Law is written by humans. It is necessarily imperfect. If I really believe that the Law and Justice are at odds, I vote for Justice.

    But the injustice would have to be a doozy. I’m not interested in letting off some mook who grows a bumper crop of Mary-Jane just because I don’t think Marijuana should be illegal. He knew the rules when he signed on to play that game.

    On the other hand I might vote to acquit, say, Martha Stewart. If the government isn’t willing to pursue a charge in court I can’t see how it can be illegal to deny that you are guilty – even if you did it before the charges were dropped. If the law defies common sense to that degree, screw the Law.

    On the other hand, I’m still not sure I understand what happened with the Stewart case.

    C. S. P. Schofield (c1cf21)

  87. Well, sure it’s sometimes hard to determine is the defendant is guilty or not (although I’m also sure that most time it is not too difficult to determine), but the issue is “juries are there to make sure the government is properly *applying* the law that citizens, through their representatives.”
    Does that application include or not include (and just for the sake of argument) blatantly unconstitutional laws? Merely because the representative at one point chose to willfully disregard the plain text of the constitution.

    I guess that’s my real question to you? Is there no time (EVER?) when jury nullification is appropriate? What if, the state of New Hampshire adopts Sharia are we to impose “the law” even though it is plainly unconstitutional?

    A Common Commenter (a256da)

  88. George Fenneman – “Groucho – the secret word is NAZI”
    I would take the oath and vote on the evidence, guided by experience and judgement. The same I would expect of my fellow citizens if I were on trial. Being that you are in California, I hope the jury is comprised of citizens, with a working knowledge of the language.

    If I may go off topic, when will the legal establishment impose sanctions on prosecuters like Fitzgerald in the Plame travisty. I think prosecutors who go forward under such circumstances should be held personally responsible for all the costs incured, and be liable in civil court for malicious prosecution.

    Gbear (c22f1c)

  89. Will someone please fix the font problem that starts with post 59? It makes reading very hard (and not worth the trouble) to me and others.

    seePea (83787f)

  90. Dear Sirs,

    Can one, in good conscience, pledge to comply with something of which he has no knowledge? The juror, when asked to affirm an oath to follow the judge’s instructions, has absolutley no idea what they will be.

    We are told that ignorance of the law is not an admissible defense. The jury is told that it is ingnorant and must follow the judge’s instruction.

    Folks, there are sausages being made here. This is not a subject amenable to rational discussion.

    Regards,
    Roy

    Roy Lofquist (e404b9)

  91. I am sticking with A Common Commenter’s hypo. If after hearing a case, I am certain a law is being applied in an unconstitutional way the oath doesn’t matter, my reponsiblity as a citizen does. Dafydd makes another excellent point along the same lines in his blogpost. Part way through he makes an arguement (search for:) that screams for JN. Otherwise I am against JN. If it isn’t a Constitutional problem and just a ‘God that is unfair’ type problem, then the oath should be followed.

    Dawnsblood (30da23)

  92. Umm the search should be for ‘Situation: the unjust law’… no ‘s

    Dawnsblood (30da23)

  93. I haven’t heard much about Hitler, who doesn’t seem all that relevant. So why not slavery?

    Slavery was legal in Slave states, and clearly and explicitly federally constitutional. You the juror are asked to convict a Quaker family in Pennsylvania of running an Underground Railroad stop (i.e., helping slaves escape to Canada). You know the slave states aren’t going to change their whole social structure and economies because of any Northern protests. You know there can be no change to the federal constitution without support from slave states. You know the Dred Scott Supreme Court is actively in favor of the return of slaves, and further that any honest SCOTUS would have to admit that the Constitution explicitly condones slavery.

    So Patterico, Ms. Judged, what would you do on this jury? Is this the exception which proves (tests) the rule? Is it irrelevant because we’re a better country now? Are there now, or could there ever again, be such circumstances where justice requires full jury nullification? How is the juror today to decide where the line falls?

    DWPittelli (a38ee9)

  94. Ah Patterico, I am loving you. Thank you so much for sponsoring this most interesting debate. Over 90 responses. Outstanding.
    Ok you posit as follow:

    But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

    Do you, and each of you, understand and agree that you will well and truly try the case 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?

    A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

    And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

    Yes I would take the oath. I would mean it when I say it and I would hold to it. I can still nullify under it. Remember there is an instruction (I believe Johnny Cochran spoke about it during his brilliant summation in Simpson. It is known by its Latin name: Falsus in Unum, Falsus in Omnibus. In NY that reads:

    If you find that any witness has wilfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.

    A verdict that rejects testimony in full because it is false in part is fine with me. Even when other evidence may lead to a diferent verdict. The problem with evidence that is false is that it often in real life casts doubt as to other evidence that might be truthful. Let’s assume that the police officer says that he gave Miranda warnings at 10 am. Lets further assume that there is proof that that a truthful statement was given by the defendant at 10:49am. Further lets assume that it is proven that the Miranda warnings were not given until 11am. Finally assume that the police officer testified to seeing blood in the back seat that matched that of the dead person and said that he thereafter found the murder weapon two days later looking into a hollow tree in the park next to the defendant’s home.

    The statement goes out, but the jury would be well within the law and instructions to reject the evidence about the blood and the weapon find, and I would say that if they really find some of the government’s case to be built on lies, the jury would be well within it’s rights to reject the side that argues the testimony that is a lie.

    Once again thanks for this very interesting discussion. I wish I could get this type of stuff going on my own blog. It is an important discussion that criminalists have been thinking about a lot since Simpson.

    That Lawyer Dude (3f1bc8)

  95. I am looking at the California jury instructions and I cannot find where it instructs the jurors, who have taken the oath, that they MUST convict if there is proof beyond a reasonable doubt. While CALCRIM 103 (http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/calcrim_juryins.pdf) certainly does say that the failure of proof BRD entitles a defendant to a not guilty verdict, the inverse is not instructed. As a result, it appears that a juror can take the oath, demand proof BRD, but still vote not guilty since there is no command to vote guilty when there is proof BRD.

    The problem I have with nullification advocates is that they present so many fantastical fact patterns of unjust laws or prosecutions that do not come up in real life. It appears that many jury nullification advocates (such as Prof. Gerald Uelman) believe in keeping out a defendant’s criminal history or other bad character evidence but insist that instructing juries on their “right” to nullify in the instant case is required – all the while depriving jury of relevant facts in the nullification determination (such as, he/she has done it before, this is just an isolated misunderstanding, etc.). Absurd? Yes. Perhaps the system we have now is sufficient in that it gives jurors wide discretion without telling them about it (which would necessarily lead to abuses and inequities depending on jurisdiction) and avoids injecting into jury trials otherwise not particularly relevant character evidence regarding the defendant that may spill over into the guilt determination.

    David (ffad25)

  96. RAS:

    “No, it’s the judge’s job to rule on the law, not theirs.”

    If this humble Canuck can ask a snarky sounding q w/out actually intending snark: where does the US constitution say this?

    The same place where it says juries are supposed to judge the law as well as the facts, i.e., nowhere. It’s a legal tradition, not a constitutional doctrine. Any state that wants to enact a FIJA statute is free to do so.

    Xrlq (036a24)

  97. Sorry for posting twice, but this one is from Patterico, who asked me to post it for him:

    A Common Commenter says:

    the cop is motivating towards a conviction against someone who has done no crime . . .

    This gravely misunderstands my hypothetical, which posits that the defendant did indeed most certainly commit a crime.

    Xrlq (036a24)

  98. Excellent question. Well-worded, and tough. I can see why Patrick’s a prosecutor.

    Like others, above, I’m troubled by the consequences of refusing to swear.

    Looking closely, yes, I could swear it, and I would abide by it, as I saw it, but I would always be governed by my conscience and my knowledge that jury nullification is a great and important common-law tradition (and hence part of the governing law). (I’ve lived in a number of Commonwealth countries as well as the US; that colors my views).

    If a law was manifestly unjust, or if it had a manifestly unjust [to me] mandatory penalty, then, yes, I might well vote to nullify.

    If I saw that the defendant had manifestly incompetent representation (e.g. his lawyer repeatedly falling asleep during the trial), then I would scrutinize the evidence with extreme care, and bend over backwards to acquit, but I would not nullify.

    I would never vote to nullify merely out of sympathy for a defendant, however.

    Our kind host would of course point out, as he and others have, that that’s not for me to decide; it’s for our elected representatives to decided, and me to vote accordingly at election time.

    Partly true.

    But there’s no need to bring up Hitler (or even slavery). There are many laws on the books that even elected representatives are unaware of that are almost never enforced. Yet they are, and remain, the law. And they come up, now and then.

    Jury nullification weakens the power of the state, especially its power to be capricious. Of course, good people aren’t capricious — and I suspect our host is very good indeed. That said, there are certainly some doubtful judges, prosecutors and cops out there. (And a great many more doubtful defense attorneys, in fairness).

    I frankly don’t see a tool which slightly weakens the state as being a bad thing, even in the post-9/11 era we find ourselves in.

    Politically and emotionally motivated prosecutions happen, albeit rarely.

    Not to have nullification as a tool, not to abide by one’s conscience… that would be wrong. Regardless of oath.

    Not a lawyer, just a layperson.
    -Holmwood

    Holmwood (76cebf)

  99. X/P-

    That clarification of the hypothetical makes the officer look a little better I spose, but I don’t know how much it really changes.

    In fairness to myself, I think we all agree that police should not lie under oath, even as to matters of probable cause, even when the defendant is clearly guilty states “even when” suggesting that the hypothetical entertained contains both possibilities, defendant clearly and defendant not clearly guilty. At least that’s the way I read it.

    All that being said, I personally think the current status of jury nullification is the correct one. It is treated as illegal and wrong, and wholly inappropriate, and the jury is not informed that such a thing exists. At the same time, jury nullification probably gets talked about one day in High School Civics, for those who really care, they can kind of understand the principle behind it, learn more and can better understand it. As a result, 99.999999% of the time jury nullification is correctly not thought of as proper.

    At the same time, I very much appreciate the fact that it exists, and even though Xrlq, Patterico may say that if he were a juror, and the state of California passed a law prohibiting any individual from worshipping the Christian God under penalty of 5 years in a state prison, that I readily confess to such a crime, and admit to the fact, there is no doubt to the fact of the crime, that some part of X or Patterico would find it in themselves to vote to acquit me. Maybe not, maybe they would stand on principle. I understand they can’t really say it…after all that’s probably the best overall position, (it exists but goes treated as unacceptable), but if they were sitting there, they would vote not guilty.

    For the record, I oppose, I strongly oppose FIJAs, I don’t know where that puts me on the “support” or “oppose” jury nullification, but that’s more or less the way I feel about FIJAs.

    The problem I have with nullification advocates is that they present so many fantastical fact patterns of unjust laws or prosecutions that do not come up in real life.

    I can understand and appreciate this point, that’s why for myself. I’m not saying any of these situation are even happening, that’s why I opened my first statement saying that JN was inappropriate and wrong in today’s legal environment. That it’s not appropriate today, however, allows that it may be appropriate sometime. (Which I recognize really can’t be admitted because then you kind of breach the dam, and its best to keep the apparent high wall intact.)

    A Common Commenter (9dd7cf)

  100. If the fantastical facts, laws, and prosecutions do not occur in real life … then there is no need to worry, or to have rules forbidding jury nullification in real life. Now, of course, if those cases do occur, then prosecutors may well have reason to worry that they will not gain a conviction in those strange cases … but they would seem to have less to worry about than those accused in those strange cases. The jury should not be a rubber stamp for either side to wield.

    The person aquitted through nullification will probably be thousands, if not tens or hundreds of thousands of dollars, poorer, perhaps lost their job, home, and spouse, and then have the prosecutor announcing at a press conference that “Justice has failed today!”

    No, it didn’t. The prosecution failed. That’s not the same as justice failing. That prosecutors frequently seem to not see that difference is one of the great problems in our legal system.

    htom (412a17)

  101. The juror is only committing perjury if he knowingly lies during his oath. Not acting as one promises is not perjury, because one can change one’s mind. So this “thought crime” can only be prosecuted if the juror confesses to an improper state of mind.

    Comment by DWPittelli — 8/28/2006 @ 7:58 am

    Wrong answer but thanks for playing. By this reasoning, any witness could “change their mind” after taking the oath to testify and it wouldn’t be perjury because they, “meant the oath when they took it”.

    If I couldn’t take the oath without reserving (in silence) the right to ignore it I wouldn’t take the oath.

    Comment by wamwam2 — 8/28/2006 @ 8:48 am

    Don’t ever take an oath. Ever. Period. It does not mean what you think it means.

    Stashiu3 (0da7ed)

  102. Quite simply, judges lie to juries by telling them that they are not allowed to “practice” jury nullification, much like police are allowed to be dishonest to catch a criminal. As a juror, I wouldn’t lie about jury nullification, but if I were a prosecutor, I sure wouldn’t prosecute a juror for lying when the judge lied about what the juror is “legally” allowed to do.

    The only jury nullification not permitted is convicting a defendant which they do not believe is guilty beyond a reasonable doubt.

    Daniel Quackenbush (71eab9)

  103. Wrong. As I pointed out earlier in the thread, the only jury nullification that is permitted is acquitting a defendant who they do believe is guilty beyond a reasonable doubt.

    Xrlq (15d6e8)

  104. Wasn’t the concept of “trial by peers” set forth in the Magna Carta expressly for the purpose of allowing a jury to overrule what they felt were improper royal decrees (i.e., the laws of the land)?

    great unknown (71415b)

  105. Our esteemed host responded to my comment:

    [Dana, you don’t seem to understand the oath at all. It’s not an oath to convict, for God’s sake. It’s an oath to obey the judge’s instructions. And no: no juror will ever be prosecuted for acquitting. Even if they explicitly said afterwards that they’d nullified, it’s impossible for me to imagine a prosecution. That doesn’t mean it’s not important to follow the judge’s instructions. It is. — P]

    And Loren wrote:

    The oath is useless if not enforced. If enforced the jury pool will shrink and no conviction will be possible. Jury nullification is a fact of life regardless of what the law says. If we can’t write laws to reflect practical reality, why have laws?

    I see this as completely opposite. If the oath is ever to be enforced, it could only come after an acquittal; the state would never have an interest in prosecuting a juror for a guilty verdict!

    Further, jury nullification is commonly understood to mean a refusal to convict in the presence of clear evidence of guilt; I have never heard of an instance where the jury “nullified” anything by convicting with obvious evidence of innocence (something that would normally cause the prosecution to drop the case in the first place).

    If the only conceivable instance in which failing to obey the oath would occur after an acquittal, how could the promise to enforce the oath be anything but state pressure on juries to convict?

    Our host said that he could not imagine anyone ever being tried for failure to convict, even if the jurors said, explicitly, that they knew the defendant was guilty under the law but chose to acquit anyway. I agree that such is the case now — which also means that there is no enforcement of the oath. If the oath were to be enforced, our host would have to consider such a possibility.

    Dana (3e4784)

  106. #101 – wamwam2: “By [DWP’s] reasoning, any witness could “change their mind” after taking the oath to testify and it wouldn’t be perjury because they, “meant the oath when they took it”.

    Not really. In nullification the juror’s “perjury” is purely retrospective: a juror can’t be said to have lied when taking his oath, unless one can prove that he knew when he took the oath that he was doing so. (Which he might very well have been doing, if the case was widely reported, or if the juror is opposed to all prosecutions of a given type.)

    In contrast, a lying witness knows he is lying, and has guilty intent when he is lying, not merely when he is taking the oath.

    Wamwam2 is right if disobedience is as clearly wrong as lying, a point he may argue. I would argue that lying is worse because it corrupts the knowledge of truth, misleading all 12 jurors and history, whereas the disobedience of nullification does neither. Indeed, in the rare case when nullification can be seen as such and potentially punished, it is clear to all what the jurors were up to.

    Perhaps for this reason, the rule against lying or “false witness” is historically ancient and widespread (e.g., the Codex Hammurabi, and later, Israel’s 10 Commandments) and harshly punished in a way that rules against such disobedience (refusing to convict, whether by a jury or a judge) are not. (Although I do understand that early Anglo-Saxon juries were occasionally punished.)

    The effect of a jury’s refusing to convict a guilty man — the only sort of nullification that, I think, any of us would ever support — is no worse, and not much different than the effect of the prosecutor refusing to prosecute. Except that a jury’s disobedience is more likely to lead to a repeal of a law or an end to prosecutions than would anything they could do as citizens petitioning the legislature for repeal.

    DWPittelli (a38ee9)

  107. #105 Dana: “I have never heard of an instance where the jury “nullified” anything by convicting with obvious evidence of innocence (something that would normally cause the prosecution to drop the case in the first place).”

    You don’t have to go too far back in history to see cases of innocent black men convicted for raping white women. (For that matter, my understanding of the Duke rape case, and the local black community’s feelings about it, is that we could or would see such a conviction soon if the jury is mostly or all black.)

    DWPittelli (a38ee9)

  108. The only way nullification could be legally comparable to a police officer committing perjury would be if a comparable decision stated that such perjury would not be harmful, and indeed could be helpful to the legal system in “exceptional” cases, but not habitually. Anyone aware of such a case?

    Bradley J. Fikes (f912b4)

  109. DWP wrote:

    You don’t have to go too far back in history to see cases of innocent black men convicted for raping white women. (For that matter, my understanding of the Duke rape case, and the local black community’s feelings about it, is that we could or would see such a conviction soon if the jury is mostly or all black.)

    I am from the South, and we didn’t bother with the trial in convicting black men for raping white women: we moved straight from accusation to execution!

    (That remark is meant to be somewhat flip, but it is the truth in a lot of cases.)

    BUt, let’s face it: that’s history, not current events.

    As for the Duke lacrosse team rape case, that has been so badly spread around that I don’t know how any of us could have any idea what the truth is: people, most of whom had an agenda to push, have presented all sorts of contradictory “facts,” and a jury, receiving actual evidence in a court of law, is the only way we’ll have any idea who’s right and who’s wrong.

    Dana (3e4784)

  110. The only way nullification could be legally comparable to a police officer committing perjury would be if a comparable decision stated that such perjury would not be harmful, and indeed could be helpful to the legal system in “exceptional” cases, but not habitually. Anyone aware of such a case?

    In which there’s such a decision? No. In which such perjury is in fact overlooked? That’s not all uncommon.

    Anyone know of a case in which a police officer has been charged with perjury for false testimony against a defendant?

    Pablo (efa871)

  111. I have your Pledge posted on my website,
    If I should be on a jury trying someone under that regulation.

    What would you expect me to do.

    PS any reason why my regular blog URL results in this?

    Sorry, but your comment has been flagged by the spam filter running on this blog: this might be an error, in which case all apologies. Your comment will be presented to the blog admin who will be able to restore it immediately.
    You may want to contact the blog admin via e-mail to notify him.

    I have posted here before

    Dan Kauffman (b494d1)

  112. #106

    In contrast, a lying witness knows he is lying, and has guilty intent when he is lying, not merely when he is taking the oath.

    Comment by DWPittelli — 8/29/2006 @ 5:28 am

    So, if a witness takes the oath in good faith, not intending to lie, and is then asked an unexpected question that calls for a lie (in the opinion of the witness), it is not perjury because they meant the oath when they took it? They had no guilty intent before taking the oath. I don’t think so.

    I submit that once you take the oath, you are legally and morally bound to it until you are released from it, or you formally renounce it. When I took the oath of enlistment, it didn’t mean that I could change my mind and thereafter act accordingly without regard to that oath. There would have been consequences, I assure you.

    Stashiu3 (404f9e)

  113. If I’m understanding nullification, I would have to be against it. Once I took the oath to follow the instructions of the court, I am bound to follow that oath, or refuse to give a verdict and state why, accepting any consequences. Something along the lines of, “I am no longer able to follow the instructions of the court because I believe it would result in a miscarriage of justice.”

    I expect I would be removed, there would be a mistrial, or the reality so self-evident that charges would be dismissed (possibly all three with me being the only one sent to jail). Why is disregarding an oath even considered a valid option for someone of conscience? I truly don’t get it. You are either someone who keeps their oaths, or you are a liar and a coward… period.

    Stashiu3 (404f9e)

  114. When a stripper passed out in Durham.

    I guess it happened years ago. I started having sex at a very early age. I’m not sure why, I just wanted to. When I was still in high school, I was in competition with myself to see how many boys I could have sex with in a week. I became quite self educated in the subtle differences there are in each boys genitalia.

    Guys who looked like they were packing huge equipment sometimes where packing “happy meal” toys, while guys you would least expect would be packing man-size equipment that would make any girl’s mouth water and pusy sweat.

    One day I had sex with three boys in the bathroom of my boyfriend’s house, and I immediately got a reputation f being easy. That reputation was a double edged sword. On the positive side, I got more guys than ever, but on the negative side everyone knew. Even in this age of “equal rights” girls still suppose to not like having sex. Strangely, feminist are the ones perpetuating this myth. A feminist friend of mine told me if I claimed I was raped, I could redeem myself and reputation. I could blame my avid hunger for sex on “being abused at an early age”. She even suggested that I claim I was raped by my father. My reputation would be instantly vindicated as I enjoyed all the powers and benefits of being a “victim”.

    Years later when I was being dishonorable discharged from the Navy for having sex with over half the men and few of the women in my squad, I claimed I was raped, but since many of my sexcapades were video taped, I didn’t want to risk being caught in a lie because I couldn’t remember which guys and gals video taped me and which ones didn’t, so I made a claim in 1996 that I was raped by three boys when I was in high school.

    It was tough living the lie, and I wasn’t interested in being in the Navy anymore. A friend told me I could make tons of money by marrying a man, having his child, then leaving him forcing him to pay child support which can take up to 60% of his net pay. If I had children from three different guys, I could collect over one thousand dollars of tax free child support each month for 18 years, but that plan fell through because I married a loser who found out I gave birth to another man’s child while married to him. My ex-husband tried to gain custody of my child, but I didn’t want to pay child support to him, so in 1998 I claimed that he kidnapped me and tried to kill me.

    I’ve been a stripper/prostitute/escort for awhile now, and I’ve been taking a few classes at UCNC in hopes to recruit a few girls of my own to pimp out. One night in 2002 I was having a particular good night, so I partied a little too hard, gave a public lap dance to a cab driver, when he wouldn’t have sex with me in exchange for cab fare, I stole his cab, and when the cops tried to stop me, I tried to kill them. I’m still on probation for that little incident.

    Earlier this year in 2006, I was working my ass off – literally! I had sex with a “client”, then with my boyfriend, then with a battery vaginal sex toy, then with two guys in exchange for a ride to the lacrosse party. The boys were pissed because I arrived so wasted. I had my routine party drugs that evening and I was feeling grrrrrreate! I stumbled all over the place, and after five minutes I wanted to leave. After why not? I already was paid. My stripper friend, “K”, was arguing with the boys over us taking the money without providing a show. She called them racial slurs and they responded in kind, but to get them back, she called 911 and lied claiming that we were only driving by and racial slurs were being yelled at us. We laughed and laughed that the 911 –people could be so stupid.

    I was so wasted that I forgot my money and phone at the boys’ house, but the $400.00 “K” didn’t want to slpit her take with me, so she called the cops to have me arrested. I drank the last of my booze and took the last of my party drugs so the cops wouldn’t atke it. By the time the cops arrived I was feeling “fffffffine!” And that’s when it hit me! I was being arrested for … oh I forgot, but to get out of it I claimed rape. That always works. I was surprised they believed me. My story was wild and a fantastic fantasy, but I had no evidence to back it up. I only had a little scratch on my knee from when I fell when I was totally wasted, and a little scrape on my ankle. The doctor and the nurse checked my pusy. I really enjoyed that. I’m thinking of having pap smears every week. I love laying there naked with my legs up and cold metal probes are inserted into my vagina. I must have had four orgasms just waiting there.

    The local DA, he’s such a loser, wanted so badly to get elected that he cherry picked every piece of evidence to make a case. All he cared about was making national news. He said it was better than sex, and I would agree. In college, the DA should have spent less time with his head in books, and more time learning how to please a woman. You’d figure a white man with such a small penis would make up the difference with some kind of technique.

    It’s amazing how feminist groups and racist groups are fast to jump on cases like this. I figure I can make bucks on the movie right alone. I thin it’s a laugh how news anchors like Nancy and Wendy twist and stretch any evidence or story to make sure people believe a rape actually occurred, but when someone points out that the evidence proves the rape didn’t really exist, both Nancy and Wendy claim that others are twisting and stretching the evidence. Talk about the kettle calling the pot black. Nancy and Wendy are my heroes. They have no integrity and that’s probably how they got where they are. Girls like Nancy, Wendy, and me should stick together. Using victimhood as a weapon and tool for personal gains will get us rich! I kinda feel sorry for those boys though, but you can’t make an omelet without breaking a few eggs.

    This is only my personal fictional story.

    Krystal (0e114f)

  115. Cannot take this oath:

    Do you, and each of you, understand and agree that you will well and truly try the case 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?

    Can take this oath:

    Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the law of the land?

    If the judge instructs me contrary to the law of the land, I must ignore him. For example, a judge could instruct that, in some particular narrow case, quoting various laws or court decisions, that the defendant should be considered guilty unless proven innocent. I would not follow such an instruction. My conscience would not allow it. We are all responsible for the rule of law, not just the appellate judges.

    Too bad, because I like serving on a jury, and think I would do a good job.

    Yours,
    Wince

    Wince and Nod (e49fe7)

  116. The issue is really about political power, as some have alluded to above. I’ve served on two juries and was dismayed at the “system’s” attempt to minimize the citizens’ power.

    Citizens are ultimately responsible for their democracy. We hire people to codify our intentions for a just and workable society. We call them legislators, judges, governors, DAs, etc. When a specific instance calling for an application of those codes needs deciding, the work (and power) returns to a panel of citizens. We have ways of fairly selecting that panel that seem to work well.

    The trial is of the defendant, the law, and the system. Is it to deliver justice? As a jury member, I assert that this is the question before my peers and I on the panel.

    A judge’s instructions are his attempts to help deliver justice as recognized by a legitmate majority of citizens. If they are not, I will assert my political power as a representative of the citizenry to correct the matter. Making the oath to obey the judge’s instructions does not relieve me of my duties as a citizen representing all citizens.

    That said, I will respect our laws but retain the duty to see that they are applied in this instant case correctly and in the spirit of society.

    Specific applications? As a Californian, I would not convict for minor possession of marijuana in a state court. The voters have unambiguously decided the issue and no judge is gonna tell me otherwise. (Scalia was a HUGE disappointment on that one!)

    If I’m on a FEDERAL marijuana case for possession but NOT in California, I could easily convict. It is a law legitimately arrived at via legitimate authority.

    As to Stewart and Libby, they did not lie about a crime and are free to assert their defense. Heck, I lie all the time!

    The bottom line is that I trust my fellow citizens who serve on juries more than I trust judges and prosecutors. No law and no process for applying law is perfect. Citizens can get it wrong too but I’m one of them.

    Lawyers, legislators, and judges seem to get a bit too big for their britches at times. Jury nullification is one way to show them who’s boss. To say citizens can’t be trusted with that power is to argue for authoritarianism.

    Whitehall (efb88d)

  117. Jury Nullification Or Nullifying the Jury?…

    Patterico has an interesting challenge on his site, which he calls a “Question for Those Who Support Jury Nullification.” He notes that jurors are required to raise their hands and swear to the following oath, under penalty of perjury, before……

    Big Lizards (5ca406)

  118. Patterico Agrees With the Lizard!…

    In my response to Patterico’s post on jury nullification, Jury Nullification Or Nullifying the Jury?, I stuck up for the right of juries to, in effect, thwart the clear path of the law on those rare occasions where the law……

    Big Lizards (5ca406)

  119. No one can fear God and not support nullification in cases where both their mind and heart tell them injustice is being done. That is my rationalization. To paraphrase the Bible, don’t fear the prosecutor who can get you on purjury, fear the almighty who will preside over your judgement and who will see the suffering that you enabled.

    MikeT (a7ec92)

  120. Patterico has asked me to post the following comment on his behalf:

    Whitehall says:

    “Specific applications? As a Californian, I would not convict for minor possession of marijuana in a state court. The voters have unambiguously decided the issue and no judge is gonna tell me otherwise . . .”

    See? Whitehall KNOWS THE LAW, and according to him, the state law in California is: possession of a small amount of marijuana is legal! Of course, Whitehall has completely screwed up the law, which is one of the major problems with nullification — but NO MATTER! He knows better than any judge or prosecutor! Sure, I might say that only MEDICAL marijuana is legal, whereas possession of less than an ounce is punishable only by a fine. But why listen to me? I’m one of those UNTRUSTWORTHY PROSECUTORS! I could be lying to Whitehall, and as a CITIZEN, he is entitled to his screwed-up view of the law, no matter how wrong it is. And nobody is gonna tell him otherwise!! Because THIS IS AMERICA!!!

    Xrlq (5c48a3)

  121. As to Xrlq, I would certainly listen to the arguments and instructions presented by the professionals during the course of the trial. That’s why we taxpayers support them. My admittedly vague example was to make a point about scope of political authority and legitimacy.

    I will not grant a point of allowing prosecutors and judges to be above political judgment by citizens. Nor will I yield ultimate authority on the dispensing of justice.

    Based on your comments I would certainly vote to remove you from any office you may hold, given the chance. Such attitudes that you display here are just the sort of arrogance that that has to be repeatedly and firmly suppressed by a free citizenry.

    Remember who you work for, Mr. Prosecutor.

    Whitehall (efb88d)

  122. Hey Whitehead, it’s bad enough that you can’t get the law right, and that you think you’re the only taxpayer in the world and every government worker should report to you, but on top of that, you appear to have confused me with Patterico. Or perhaps you think I am a prosecutor, and that I was merely trying to deflect criticism by falsely claiming Patterico had authorized me to post a comment that was really my own? Or has your self-importance reached the level where you think even private sector employees all work for you, as well?

    Oh, wait.  I get it.  You’re the “Rasta Boy” with the pingback on Comment 122, too, right?  Lemme guess, you weren’t really trying to respond either to me or Patterico on the merits, but to intentionally write an comically stupid comment to make a snarky point about the effects of marijuana on the brain.  Well done!

    Xrlq (5c48a3)

  123. A trial by jury is judged by a jury of your peers. This is done to prevent a collusion of prosecutor and court conspiring to use the law against one of the people. The courts/government were wrong to rule against jury nullification and to require jurists to swear an oath to judge the case on the evidence and law alone.

    The power of this country resides in the hands of the people, according to the beliefs of the founders and the constitution, not the hands of the government and it is the peoples duty to ensure that no citizen is victimized by that system of law. That is why jury nullification exists and why it should always exist.

    Would I lie? No, But I would consider any court instruction invalid/not binding if it forced me to abandon my duty to consider nullification

    dksuddeth (ac44fb)

  124. “The courts/government were wrong [. . .] to require jurists to swear an oath to judge the case on the evidence and law alone.”

    WOW. On what basis WOULD you have them make findings in court?

    Federal Dog (9afd6c)

  125. WOW. On what basis WOULD you have them make findings in court?

    The evidence, the law, and to take in to account ALL extenuating and mitigating circumstances as well as the justness of said law.

    There are a multitude of laws that are outright ludicrous. There are a multitude of laws that the federal government has no business in enforcing when it infringes on state powers. There are a multitude of laws that plainly violate the constitution but are enforced because of the political atmosphere. It is this whole area that REQUIRES jurists to look at more than just the evidence and the law, as it is written.

    dksuddeth (ac44fb)

  126. “The evidence, the law, and to take in to account ALL extenuating and mitigating circumstances”

    All of this is always, already permissible under current law.

    “as well as the justness of said law.”

    That call is made collectively, by elected legislators. If not, anarchy and injustice immediately ensue. What, for example, about that child molester (to take a past example) who, once a juror, declares laws criminalizing child rape unjust? Is he really entitled to give license to sexual assault because in his mind, child rape is acceptable? On your account, there is nothing whatsoever to prevent this result.

    “There are a multitude of laws that are outright ludicrous.”

    Act to get them repealed then. That is a legislative matter, not a judicial matter. If the child molester, for example, cannot convince people of his view of sexual assault and get those laws repealed, that does not mean he may properly acquit serial rapists because he personally hates the law. It means he must understand that he is not emperor, that he does not unilaterally make law, and that his vision of child rape does not reflect the will of society.

    Federal Dog (9afd6c)

  127. That call is made collectively, by elected legislators. If not, anarchy and injustice immediately ensue. What, for example, about that child molester (to take a past example) who, once a juror, declares laws criminalizing child rape unjust? Is he really entitled to give license to sexual assault because in his mind, child rape is acceptable? On your account, there is nothing whatsoever to prevent this result.

    This conviction would make him a felon, therefore, ineligible to serve on jury duty and would not be given a chance to nullify. As far as the ‘collective call’ by legislators, they are the very reason nullification exists. 536 individuals, elected or not, are not ‘supreme beings’. They are capable of mistakes and many laws have unintended consequences. Nullification exists to deal with those unjustly caught up by those unintended consequences.

    Act to get them repealed then. That is a legislative matter, not a judicial matter.

    yeah, how freely do those legislators give up power? not bloody likely.

    dksuddeth (ac44fb)

  128. “This conviction would make him a felon, therefore, ineligible to serve on jury duty and would not be given a chance to nullify.”

    You’ve got the situation wrong: The juror, though a child molestor, has never been discovered and convicted. He is therefore on the jury. What then? Does he properly acquit because he thinks child rape laws are unjust? What if his conviction is very intense: Does that make a difference?

    Federal Dog (9afd6c)

  129. You’ve got the situation wrong: The juror, though a child molestor, has never been discovered and convicted. He is therefore on the jury. What then? Does he properly acquit because he thinks child rape laws are unjust? What if his conviction is very intense: Does that make a difference?

    ok, my misunderstanding. In THIS instance, it would make a difference, but ONLY in so far as such an OBVIOUS bias against an OBVIOUS criminal case. The proper course of action would be to have the jury foreman request that the ‘holdout’ be replaced by an alternate.

    More appropriate cases would fall in line with clearly stated constitutional rights, like gun rights or property rights.

    dksuddeth (ac44fb)

  130. I should probably be even more exact in what I consider appropriate cases.

    Victimless crimes

    i.e. felon in posession of a firearm. This is a charge that should be nullified. If a person can’t be trusted with a constitutional right, then he shouldn’t be out of prison. If he’s served his time, then he should be accorded all of his natural rights again.

    dksuddeth (ac44fb)

  131. Remember who you work for, Mr. Prosecutor.

    The People of the State of California. That doesn’t mean that I have to bow to the interpretation of the law by one of those People, if I know that interpretation is flatly wrong — as yours was.

    Patterico (91fd36)

  132. For the record, I wouldn’t, but I can’t say that I don’t understand the father’s feelings.

    Chris from Victoria, BC (9824e6)

  133. Nullification…

    Radley Balko is engaged in a small blogospheric set-to with Patterico about jury nullification. Jury nullification is the idea that a jury should acquit people charged under unjust laws. Balko offers some examples most people would agree with, such as….

    Andrew Olmsted dot com (8175d1)

  134. […] Radley Balko answers my question from the other day and says he would lie, under oath, to get in a position to be on a jury and nullify: Patterico wants to know if nullification supporters would lie to get on a jury to nullify an unjust charge. […]

    Patterico’s Pontifications » Balko Says He Will Lie Under Oath to Get on a Jury and Nullify for the Libertarian Cause (421107)

  135. I would take the oath and then vote my conscience.

    Unless I felt like getting out of jury duty. In which case I’d say, loudly, “A jury has the age-old right and duty to judge the alleged law as well as the alleged law-breaker. I consider asking me to take such an oath to be treason. How about it, fellow jurors, shall we arrest this tyrant judge for treason, right now, hold a trial, right now, and hang the filthy bastard?”

    Well, I’d probably chicken out about the last sentence, but it would be the proper thing to do. That judge should not be allowed to awake on another day.

    Bill St. Clair (b831a5)

  136. Last time I was called for jury duty I asked if the oath was optional. The judge told me it was not and I could be fined for contempt if I refused to take it. An oath must be freely given to be meaningful and any oath made under threat of punishment (the fancy word is “duress”) is not binding on the speaker.

    Stephen Carville (5c4dc8)

  137. “That judge should not be allowed to awake on another day.”

    So people here are now not only throwing out laws they feel they are above, but killing people too? What other felonies do Patterico posters propose committing? Are there ANY laws you all feel you might be bound by?

    Federal Dog (9afd6c)

  138. I wasn’t proposing murdering the judge. I was proposing giving him a speedy trial and an immediate sentence for treason.

    Trial by jury is the last defense we the people hae against a rogue government. It exists to allow us to veto bad laws. Nullification is the only reason juries exist. If any one of twelve randomly selected jurors thinks that the alleged criminal should not be punished for whatever it is the government claims he did, then he walks. Messing with that, even a little bit, is a grave threat to the Republic, treason. Franklin warned us it would be difficult to keep it. He was right.

    Bill St. Clair (287271)

  139. “I wasn’t proposing murdering the judge. I was proposing giving him a speedy trial and an immediate sentence for treason.”

    Yes, you were, obviously. Short of executing him, the judge would still “awake on another day.” Your words were crystal clear.

    Federal Dog (9afd6c)

  140. […] In our recent discussions about jury nullification, some of you were pretty cavalier about perjury, and the concept of respect for the rule of law. I explained that jurors must take an oath to apply the law as set forth in the judge’s instructions — and jurors are always asked beforehand whether they would agree to do so. That means that, unless you are blindsided by the content of the judge’s instructions, you generally can’t nullify without first perjuring yourself. (And it’s rare that jurors will be blindsided, because in any case where nullification is a possibility, there will be extensive and detailed questioning in jury selection about jurors’ disagreements with, and ability to apply, the applicable law.) […]

    Patterico’s Pontifications » A Question for Those Who Support Perjury and Disrespecting the Rule of Law in Support of Jury Nullification (421107)

  141. A Juror is compelled by the court to serve and therefore compelled to this oath. The oath is given under duress.

    [No more than witnesses who are compelled to testify. In fact, less so, since a juror could simply say that he can’t follow the oath in good conscience. — P]

    theGOOCH (f5c71a)


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