The one problem with jury nullification is that judges and prosecutors often set perjury traps that pick would-be nullifiers off during the voir dire process.
As best as I can tell, “perjury trap” is the phrase invoked by people who really feel justified in lying about something — but who have inconveniently been placed under oath by those conniving bastards in positions of power.
Balko is on record as arguing that citizens have the right to deliberately mislead courts about their intent to nullify. Balko has written that he feels justified in lying to judges in support of nullification:
Patterico wants to know if nullification supporters would lie to get on a jury to nullify an unjust charge.
I’ve said before that I most certainly would.
One small concession: As bloggers sometimes do, I was perhaps a bit rash in using the word “lie.” I wouldn’t outright lie in voir dire, though I’m sure Patterico and other opponents of nullification would interpret the misdirection I would use in answering questions to have the same practical effect. I would answer questions in a way that’s not openly false, but that certainly masks what I’d intend to do.
Apparently, Balko believes that deliberately misleading courts by Clintonesque “misdirection” is somehow more honorable than flat-out lying. But deception, whether explicit or by implication, is not only dishonest — it flouts the rule of law, which I happen to care very much about.
What Balko calls “perjury traps,” I call an effort to find jurors willing to apply the law.
In his latest post, Balko claims that the law authorizes jurors to ignore the law:
Worse, judges sometimes even wrongly instruct jurors that their only option is to consider the defendant’s guilt or innocence, explicitly instructing that they aren’t to judge the justness or morality of the law itself.
That’s because they aren’t. I’ve quoted this before, and it appears it’s time to quote it again. This is language from the California Supreme Court:
Jury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. As one commentator has noted: “When jurors enter a verdict in contravention of what the law authorizes and requires, they subvert the rule of law and subject citizens–defendants, witnesses, victims, and everyone affected by criminal justice administration– to power based on the subjective predilections of twelve individuals. They affect the rule of men, not law.” (Brown, Jury Nullification Within the Rule of Law, supra, 81 Minn. L.Rev. at pp. 1150-1151, fn. omitted.) A nullifying jury is essentially a lawless jury.
We reaffirm, therefore, the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law. A juror who is unable or unwilling to do so is “unable to perform his [or her] duty” as a juror (§ 1089) and may be discharged.
People v. Williams (2001) 25 Cal.4th 441, 463.
That is the law.
Yes, jurors have the power to nullify. They just don’t have the legal authority. Just like President Bush might have the power to illegally wiretap Radley Balko’s phone — he just doesn’t have the legal authority to do so.
There is a difference.
Questioning designed to identify such jurors is not a “perjury trap” — it’s the only responsible way to select jurors willing to perform their duties as required by law. Those who, under oath, deliberately seek to mislead the court about their intent to nullify — these people aren’t honorable citizens.
They’re just liars — plain and simple. They’re no different from the penny-ante con artist on the street, who distorts the truth because it suits him to do so. Or perhaps the better analogy is to the cop who lies about probable cause, because he knows the perp is guilty. If you support dishonesty in support of The Greater Good, then surely you support cops who lie to put away the bad guys . . . right? Bueller? Bueller?
Is asking cops about probable cause a “perjury trap”?
The next time I read a piece by someone who openly advocates dishonesty in the pursuit of his views, I’d really have to ask myself: why should I ever trust a single thing this person says? If he would lie to a court — I’m sorry, deliberately misdirect a court — in support of his political views . . . then why wouldn’t he deliberately misdirect me?