Patterico’s Pontifications » Balko: Asking Prospective Jurors If They Would Follow the Law Is a “Perjury Trap”

3/7/2008

Balko: Asking Prospective Jurors If They Would Follow the Law Is a “Perjury Trap”

Filed under: Crime, General — Patterico @ 10:04 pm

Via Instapundit we get a link to Radley Balko on jury nullification:

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.

When I called him on it, he amended his views to clarify that he does not support outright lying, but instead advocates merely misleading judges:

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?

UPDATE: Thanks to Instapundit for the link. He doesn’t agree with me on this issue, but he’s willing to expose his readers to people who have different views, and I respect that.

488 Comments »

I am so sick of people citing the “historical precident” of jury nullification as a defense of the practice. The jury’s job is not to determine what is legal and illegal, that is the legislative (and, occasionally, judicial) branch.

…Or am I wrong

Comment by JFH — 3/7/2008 @ 10:15 pm
If it is just a question of determining “the facts and render a verdict”, why have a jury at all? The judge is in a perfect position to fulfill this task, since he is “schooled” in the law.

It was my impression that the jury system was established to prevent abuse of the law by judges (as happened in England prior to the revolution). Abuse can occur from lawmakers as well as lawbreakers (see: McCain-Feingold).

That said, I agree that “misleading” the court is wrong. Honesty is paramount both for the citizens of a country — as well as its laws.

Comment by navyvet — 3/7/2008 @ 10:31 pm
Well said, Patterico.

Comment by SPQR — 3/7/2008 @ 10:37 pm
If it is just a question of determining “the facts and render a verdict”, why have a jury at all? The judge is in a perfect position to fulfill this task, since he is “schooled” in the law.

You didn’t quite set forth jurors’ duties in their entirety. It is to “determine the facts and render a verdict in accordance with the court’s instructions on the law.” Jurors’ primary task is to find the facts based on the evidence. Usually, once they have found the facts, the application of the law is simple. But finding the facts is a very important task — it’s usually what trials are all about, after all.

Comment by Patterico — 3/7/2008 @ 10:47 pm
Well said, indeed.

Comment by DRJ — 3/7/2008 @ 10:59 pm
I guess Balko is unaware of the literal translation of the Latin phrase “voir dire” — it means “to speak the truth.”

Comment by wls — 3/7/2008 @ 11:12 pm
Did I forget to mention that Balko is an idiot?

Comment by wls — 3/7/2008 @ 11:13 pm
I’d probably find it easier to be outraged at Balko if he weren’t so skilled at finding excesses of prosecutors.

Comment by Jaybird — 3/7/2008 @ 11:19 pm
the jury is the representative and conscience of the community where the case is being tried, and nullification has been enshrined in american law ever since john peter zenger was acquitted of sedition.

of course the california supreme court frowns on nullification, i’m sure the zenger judge wasn’t happy either. that’s their problem. jurors aren’t just computers weighing evidence like scales, they’re complex, moral beings, and they have responsibilities, and attendant rights, beyond what you’re according them in your blog.

i support the jury’s right of nullification. i acknowledge that it isn’t always prudently exercised (o.j.). in many cases, i’d be the kind of juror a prosecutor would like to have, but not in all. the “perjury trap” statement sounds like excessive argument, and i’m not even aboard his “misdirection” fallback. i know how to craft 100 pages of answers to interrogatories without telling the opponent a single useful thing, so i have no doubt i could get on a jury (if i were ever summoned) without committing perjury. bear in mind that perjury only relates to misstatements of existing premises, not promises to execute or forbear from future action.

reasonable doubt is the nullifying juror’s fortress, not resort to american legal history argument. called into chambers on the motion to boot me, i would carefully eschew “nullify” or any of its derivatives. reasonable doubt is a personal, idiosyncratic standard, and if i really didn’t want to convict someone, it would take an open wormhole into the past, through which we could actually view the crime taking place, right there in the courtroom, to satisfy the standard.

Comment by assistant devil's advocate — 3/7/2008 @ 11:33 pm
ADA — a juror takes an oath to truly and fairly render a verdict based upon the evidence presented in court, and nothing else.

Are you saying that you would vote to acquit a person about whom there is no dispute that he/she engaged in the conduct that is defined as a crime if you disagree with the decision of the legislature in its definition?

An example would be where there is an eyewitness who is it contradicted nor whose credibility is called into question, and the defendant never denied having engaged in the conduct.

Over a personal disagreement with the elected legislative branch that defined that crime, you would defy the will of the popular electorate by voting to acquit?

If so, your view undermines the foundation of the criminal justice system — respect for the elected branch’s collective expression of the boundaries of acceptable behavior.

Welcome to a Hobbesian world.

Comment by wls — 3/8/2008 @ 12:58 am
Patterico, WLS:

Are you two prepared to carry your absolute rejection of lying to admittedly extreme but quite realistic scenarios? How about scenarios that have actually happened in fairly recent American history?

* How would you vote — guilty or not guilty — in a trial in 1915 against a newspaper editor accused of sedition for merely speaking out against President Woodrow Wilson’s abuses of his power?

* How about in an internment case in 1942, when a 17 year old American citizen of Japanese descent claims actually to be Chinese-American… but the facts clearly show his grandparents immigrated here from Japan, not China?

* How about a contemporary case where a mob boss controlled much of a city, brutalizing and murdering people more or less at will because he has the cops and the mayor in his back pocket… and then some guy whose son the mob boss killed (for refusing to pay “protection”) kills the mob boss. You are convinced that there was no reasonable way to bring the boss to legal justice; barring the assassination, he would likely stay in power for 20 more years. The evidence is clear beyond a reasonable doubt that the bereft man killed the boss. Guilty? Hope the judge is lenient?

I do believe in jury nullification — but only in cases where the injustice of the law is so overwhelming, so staggering, that it shocks the conscience to allow it to proceed.

That is a very high standard indeed. Certainly it’s not reached by a drug case, even though I oppose drug prohibition. Nor is it reached by a person arrested for carrying a concealed weapon without a CCW permit, even if he has been threatened by gang bangers. I would, in both cases, openly respond during voir dire that I cannot vote guilty in good conscience, and I would be booted off the jury (and probably be shouted at by the judge).

I can think of only one case in my lifetime where I would definitely have lied (flat out lied, none of this namby-pamby misleading bullroar) to get on the jury, just so I could make it a hung jury.

But unlike you two, I will not immolate my immortal soul to satisfy the law, even if the law is so vile that it’s tantamount to lawlessness itself.

Would you? Would you really? Or are you really saying that in the 99.999% of cases where it’s just an annoying law, or even a bad law, but not a conscience-shocking law, you would answer truthfully?

If so, you should recognize the actual boundaries of your seemingly absolutist pronunciamentos.

Dafydd

Comment by Dafydd ab Hugh — 3/8/2008 @ 4:56 am
When was the world ever NOT Hobbesian, pray tell?

And just for all you lawyers: I’ll worry about making my judgments on the evidence presented when ALL the evidence is presented. There are way too many laws designed to exclude evidence no matter its’ probative value.

Laws made by the elected branch? It is to laugh. How many of the myriads of regulations people have to try to exist under never see a legislative vote? I won’t even ask how many of them are slipped in as obscurely as possible, in the dead of night “conference committee”. For that matter, how many unaccountable “civil servants” have we seen apply the “laws” in completely random fashion? They neither stand for election nor, thanks to “civil service”, can they be fired by those who do.

I like Pournelle’s term, Anarcho-Tyranny.

And jury nullification goes back to English common law, which is as much a part of our system as any other law and regulation.

Comment by SDN — 3/8/2008 @ 5:15 am
“I guess Balko is unaware of the literal translation of the Latin phrase “voir dire”— it means “to speak the truth.”

It’s French, not Latin.

It means “See Say”

Zero for two. Maybe Balko is not so bad after all if this guy is against him.

Comment by BlacquesJacquesShellacques — 3/8/2008 @ 5:22 am
[cutting the true warstory short on both ends; the recruit is filling out the blizzard of paperwork upon entering USMC bootcamp.]
…
“Recruit, your great to the seventh grandfather sailed to this country from Stolkholm?”
“Sir, yes, sir!”
“Then you put ‘Swedish’” in the nationality box.”
“Sir, but ..”
“Shut UP, Private! Swedish!”
…

But he was Norwegian, they just sailed from Stolkholm. So the Corps thinks I’m Swedish, not usually a problem. (I had tried to put “American” in the box.)

—

I think that prosecutors should worry more about justice and less about nullification, but I’m not going to hold my breath. It seems to me that they get upset about nullification because it “breaks the rules”, but the world has never obeyed the rules of man. The demand by the court that I promise to follow the law, when I am ignorant of an unbiased presentation of it, is beyond satire. There’s an old saying, “If you want a decision, go to court. If you want justice, go to church.”

Comment by htom — 3/8/2008 @ 5:34 am
No, Black Jack Shellac:

In origin it refers to an oath to tell the truth (Latin verum dicĕre), in other words to give a true verdict. The word voir (or voire), in this context, is an old French word meaning “truth”. It is unconnected with the modern French word voir, which derives from Latin vidēre (”to see”), though the expression is now often interpreted by false etymology to mean “to see [them] say”.

Comment by nk — 3/8/2008 @ 5:36 am
Voir Dire: (v) Voir dire is the opportunity to examine the jurors before their appointment as regards to their integrity and balanced approach. Voir dire means to see the person and talk to him personally with a purpose to evaluate him. Jurors are interviewed by judges and attorneys before assigning the case to them.

http://www.legal-explanations.com/definitions/voir-dire.htm

It’s French. Its “literal translation” has little to do with telling the truth. It means “see say” or perhaps “see speak” and means just that - an opportunity to “see” and “speak” to jurors.

Balko may be wrong and he may be an evil idiot but your arguments won’t prove it.

Comment by BlacquesJacquesShellacques — 3/8/2008 @ 6:15 am
PS My nom de plume is BlacquesJacquesShellacques, not BlackJackShellac, who is perhaps an American who does not speak the French so good.

Comment by BlacquesJacquesShellacques — 3/8/2008 @ 6:17 am
#16 & 17,

I have done quite a lot of voir dires, and possibly more of opposing witnesses than jurors. It is not only an opportunity to examine jurors (which in Cook County is very restricted — the judge doing the questioning) but also to test a witness’s credentials and competence to testify, and foundations for evidence.

You may very well speak better French than I, but voir dire is a term of art in the law with a historical context and it no more means “to see, to speak” than “telescope” means to “talk about a brand of mouthwash”. I am correct in my #15 as was WLS previously.

And BTW, the real French idiom is “nom de guerre” — “nom de plume” is pretentious, fake French created by some English-speaking writer.

Comment by nk — 3/8/2008 @ 6:48 am
I’m with Dafydd on this one. I would never reject the right of jury nullification, but also believe that it should only be used in very rare instances where following the law produces an egregious miscarriage of justice. That means that baring such a perceived miscarriage of justice I will vote to convict even though I may disagree with a given law, provided the evidence supports such a verdict.

Laws are sometimes imperfect, and sometimes they are improperly applied in a given case. In extremely rare instances those things can come together and produce a case where following the law produces a verdict that no one in good conscience would say is proper. So even though I don’t favor jury nullification, there are occasions where it is justified, and it is for those once in a million or several million cases that I reserve the right to exercise it. In a more perfect world the need to exercise it would never come up, but our world is far from perfect. Even with all the imperfections of our world I doubt that you can find one case a year where I would agree that jury nullification was justified, but over a period of years you likely could find such a case.

If those views make me unfit to be a juror, then the courts will have to kick me off the jury panel. So far they have not seen fit to do so, but then none of the cases I’ve been on did the attorneys go into jury nullification as such. The questions were more along the line of would I be willing to render a verdict that was true and within the law based on the facts of the case as I determined them to be. One defense attorney did question me some on within the law during voir dire, but apparently my answers satisfied him and the prosecutor as well even though I made no attempt to lie or mislead them. To be honest, I was surprised over that. While we never actually talked about jury nullification, some of the questions were quite close to it and I expressed views much like I’ve done here.

For what it is worth. I’ve been called for jury duty for four terms and during those terms I’ve been temporarily seated on a jury eight times and served on those juries seven times. So seven out of eight times I was accepted and on the eighth, a civil case, the prosecuting attorney appeared to be objecting to anyone who had a small business. The reason I say that is because a friend of mine served on that jury and he told me the prosecuting attorney made digs that were against small businesses. Jim laughed and said the judge finally told him to stop it. As it turned out he didn’t win any friends on the jury either.

Comment by Fritz — 3/8/2008 @ 7:00 am
You didn’t quite set forth jurors’ duties in their entirety. It is to “determine the facts and render a verdict in accordance with the court’s instructions on the law.”

This still obviates the need for a jury (assuming the judge is capable of instructing himself on the law). The jury is not an automaton; it must determine and weigh all the facts as well as the validity of the law. If jury nullification is not to be permitted, the judge should imprison any jury that doesn’t render a verdict satisfactory to the judge. Since this hasn’t happened as yet (to my knowledge), it appears jury nullification is a feature of the criminal justice system we will have to live with…like it or not.

Comment by navyvet — 3/8/2008 @ 7:04 am
Navyvet,

The jury is vital in assessing the credibility of the witnesses and the weight of the evidence. The court can overrule its verdict when it’s against the manifest weight of the evidence but it is rare, and never done against the defendant in criminal cases.

As for Dafydd’s argument, there may be an occasion when the fire department will dynamite a house to prevent a frire from engulfing an entire neighborhood. Balko suggests that firemen should reach for the dynamite as readily as for their water hoses.

Comment by nk — 3/8/2008 @ 7:15 am
“nom de guerre” means name of the war and is a pseudonym taken in a war, often by a guerilla.

“nom de plume” means name of the pen and is a pseudonym taken by an author, or a commenter.

“voir dire” is indeed a term of art for a well known legal procedure. But it’s still French and not Latin and its “literal translation” is still not “to speak the truth.”

If you want to argue that in the procedure commonly described by the term of art of “voir dire” a witness must speak the truth, go ahead, but the argument based on “literal translations” of the wrong language, with a weird side trip into old French, is a bad argument.

My native language is German and I speak English well and French not so well but studied it for 13 long years. I practiced law (in English) for 30 years, did lots of voir dires too, and learned the difference between a literal translation and a term of art.

Comment by BlacquesJacquesShellacques — 3/8/2008 @ 7:27 am
As far as I’m concerned, on a jury I’d cast my vote against the side that was trying to bullshit me. I am not sure what trials are, but it’s plain they are no longer about determining what happened.

Comment by Dr. Ellen — 3/8/2008 @ 7:28 am
True Justice would be those jurors who felt so strongly that this was a unjust law having their verdict respected, case dismissed, and doing time for perjury.

Jury nullification is a check on power, but it needs its own check as well. If you can not “do the time” how much do you really think that law is unjust? Are you only going to oppose it if it is easy to do so, or are you willing to walk your talk. “But the law is bad…” So? It is what it is.

Too often people, and I include myself in this, oppose things that have little or no risk to us personally. The ultimate NIMBY-ism. If you were willing to take jail time to oppose what you see as an unjust law, THEN i can respect those arguments. Until then, you are posers (or “poseurs” for the pseudo-Gaul) who whimper when reality dares to intrudes into your fantasy.

Comment by MunDane — 3/8/2008 @ 7:41 am
“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.”

Then, why need juries at all? I fthey are not to weight the evidence, the facts adn the law, and then, for them to decide.

Comment by Bill — 3/8/2008 @ 7:46 am
“That is the law.”

Bullshit. It’s the opinion of a court.

Comment by Billy Beck — 3/8/2008 @ 7:50 am
My interpretation of a perjury trap is an instance in which a person at risk of prosecution is asked a question with more than one answer and which requires recollection. For example, Tim Russert was asked if he had discussed the Valerie Plame case and answered he had not when in fact he had on a tape of Meet the Press. Of course, no one was interested in subjecting him to a perjury charge.

Comment by Mike K — 3/8/2008 @ 7:51 am
Bill, did you not read any of the discussion? The jury does not decide the law.

Comment by SPQR — 3/8/2008 @ 7:52 am
True Justice would be those jurors who felt so strongly that this was a unjust law having their verdict respected, case ~~dismissed~~ hung, and doing time for perjury.

FTFY

Comment by rhodeymark — 3/8/2008 @ 7:55 am
Or perhaps the better analogy is to the cop who lies about probable cause, because he knows the perp is guilty

Prosecutors and judges support the lying cops. Law enforcement drew first blood, not Balko.

Comment by John J. Rambalko — 3/8/2008 @ 8:04 am
Patterico, if your point is that modern juries are by law (or rule) not allowed to practice nullification, I’ll concede.

Those laws need changing.

Comment by Walter in Denver — 3/8/2008 @ 8:04 am
Lawyers view juries as irksome limitations on their ability to get their way. Prosecutors view Criminal Defense Lawyers as irksome limitations on their ability to get their way. Criminal Defense lawyers view prosecutors as irksome limitations on the ability to get their way.

Our government is not “of the lawyers, by the lawyers, and for the lawyers”, nor should it be. Lawyers are specially trained servants, not masters. Consider a court with no lawyers. A pro per plantiff against a pro se defendant. The jury would still weigh the evidence against their own concepts of fairness, with little regard to the standards of fairness embodied in the law by other men, at an other time.

A bureaucracy is a mindset that applies rules developed to resolve problem A to problem B. A bureaucrat not only thinks that is a good idea, but also thinks that there is no possible alternative.

A non bureaucrat thinks about the problem at hand, and selects from his past experience, and the other experiences of his team, and tries to come up with the best solution. Imagine if a car manufacturer selected wooden wheels for his car because of some authoritative prescedent? We would still be using horses! And in the legal system, we are!

Comment by Don Meaker — 3/8/2008 @ 8:08 am
So after the Fugitive Slave Law was passed in 1850 you would of had no trouble prosecuting people who violated that law? Of course not, because “it is” the law and you are just doing your job.

And then of course you’ll do you job to get people off the jury who are apposed to slavery.

Now, would I lie to get on a jury, no. Now if the right questions aren’t asked, oh well.

Comment by Gerald A — 3/8/2008 @ 8:11 am
It strikes me that “jury nullification” stands in the same place as “civil disobedience.” The exercise of either should be in the interests of true justice, and with the willingness to accept the punishment for not complying with the law.

It also seems to me that this question is the same one as with torture. There are undoubtedly times where the laws against torture should be disobeyed, but the torturer has got to be willing to accept the punishment.

In law, there is a concept known as “the doctrine of necessity,” under which a person is justified in committing a criminal action in order to prevent a more culpable criminal action.

All of these things seem to me to stand together. They all permit an individual to nullify, based on his conscience in a specific situation, the consequence of the law.

As Bob Dylan observed, “to live outside the law you must be honest.” In all these instances, a person steps outside the law in order to do something that is right despite the law. One can only do that if one is honest enough to accept the punishment, as MunDane observes - in other words, to put your conscience up against the community conscience as embodied in the law, you have to acknowledge what you are doing by being willing to accept the judgment of the community in punishing you, if it comes to that.

“Be sure you are right, then go ahead.” That’s what the Walt Disney Company said was Davy Crockett’s motto, back when I was a kid watching the Davy Crockett show on TV.

I don’t know whether Davy said it, but it certainly captures the American spirit. In certain circumstances, one is *obliged* to stand against the law. But the only proof one has that the stance is honest is the willingness to accept the consequences.

Comment by Harmon — 3/8/2008 @ 8:13 am
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?

In 1940, Germany invaded France.

In 1944, the United States invaded France.

No difference, right?

Comment by Godwin Bueller — 3/8/2008 @ 8:16 am
The reality is that in history, one can find an order of magnitude more instances of jury nullification being used to support injustice, than justice.

If there is a law that should not be enforced, then use the political process to remove it. But if in fact, you have lost a political argument with the majority, you don’t have the right to frustrate their will by jury nullification.

Comment by SPQR — 3/8/2008 @ 8:17 am
So let me get this straight…

Lawyers laugh at those naive rubes who think courts are about justice. “This court ain’t about justice, son, it’s about THE LAW!”

They set up rules on evidence exclusion and court procedures so that most reasonable citizens would think that many worthwhile facts may be omitted from the case. “No, we don’t trust you to hear everything - we want to carefully limit what you can even hear.”

They hire consultants to cherry pick juries, specifically trying to get a jury that will return the result they want, not what will be most true or just.

And then when a jury gets fed up with all this legal BS and returns a verdict they consider right and true, regardless of whether it makes the lawyers happy, they consider it an injustice.

Do I have that about right?

Comment by SickOfLawyers — 3/8/2008 @ 8:17 am
I would have no problem following the law:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

It is trail by jury, not trial by the government.

Comment by Steve — 3/8/2008 @ 8:19 am
Steve, and the Fifth Amendment provision you mention reserves the trial of facts to the jury.

Comment by SPQR — 3/8/2008 @ 8:21 am
It strikes me that “jury nullification” stands in the same place as “civil disobedience.” The exercise of either should be in the interests of true justice, and with the willingness to accept the punishment for not complying with the law.

And that’s the difference between a lying Balko and lying cops and lying prosecutors.

Cops and prosecutors aren’t willing to — and don’t have to– accept any punishment for their crimes.

Well, law enforcement really can’t commit crimes, because anything they do is, by definition, not a crime.

Maybe Balko has damaged his credibility by saying what he did. But cops, prosecutors, and judges lost their credibility a long time ago by not reigning in their power-hungry colleagues.

Comment by Godwin Bueller — 3/8/2008 @ 8:21 am
Voir Dire is obviously two infinitive verbs. How do you get “to speak the truth” out of that when there is no word in there for “truth,” let alone any conjugation?

Comment by MikeT — 3/8/2008 @ 8:25 am
I’ll be as honest and forthright as the prosecutor and the judge.

Comment by Robert — 3/8/2008 @ 8:25 am
Jury nullification is a useful check on both unjust laws, as well as just laws that are being abused by Javertian prosecutors seeking to incarcerate someone on a technicality. But it only works if the desire to nullify is shared by the jurors as a panel, not just by one rogue juror.

Comment by Steve Smith — 3/8/2008 @ 8:26 am
If there is a law that should not be enforced, then use the political process to remove it. But if in fact, you have lost a political argument with the majority, you don’t have the right to frustrate their will by jury nullification.

What a wonderful display of amorality. Taken at face value, you have given the majority license to rape and pillage the lives, liberty and property of the minority.

Comment by MikeT — 3/8/2008 @ 8:27 am
About “voir dire” again. I don’t speak French at all, just a little Italian and Spanish, and right off the bat it’s obvious that it means something along the lines of “to see, to speak.”

Comment by MikeT — 3/8/2008 @ 8:29 am
a juror takes an oath to truly and fairly render a verdict based upon the evidence presented in court, and nothing else.
- wsj

It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.
- John Adams

It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy
- John Jay

Hmm… who to believe, who to believe.

I’ll agree with Dafydd that it’s not enough to simply disagree with a law, but that injustice of the law (or, I’d add, “… or it’s application to a particular case”) is overwhelming. But the power of the people to effectively negate an unjust law (or the unjust application of the law) remains the whole point of trial by jury. A panel of forensic experts would work better if the only function of a jury was to ascertain the facts.

I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.
- Thomas Jefferson.

Comment by steve — 3/8/2008 @ 8:29 am
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 why should I ever trust a single thing this person says?

Typical Patterico. You can never merely disagree with someone, can you? It’s always, “I disagree, and the person I’m disagreeing with is a terrible person who should never be trusted!”

It’s why it’s so hard to ever take you seriously, Patterico. Your whole shtick is about scalp collecting, and attempting to show that anyone who doesn’t see the world exactly as you do is morally flawed, and obviously motivated by nefarious forces. You rarely debate. Your first instinct is always to attack motivations.

I fully expect you to link back to this post the next time you attacks me for something completely unrelated. “Why should we trust Balko’s latest article on X, when he said he’d lie to a court to get on a jury?!?”

The statement is nonsense.

Of course there are times when it’s appropriate to lie in pursuit of a moral or just ends. And yes, that would include times when it’s appropriate to lie to a court. Would you have lied to get on a jury so you could nullify someone clearly guilty of violating the Fugitive Slave Act? How about Jim Crow laws?

If not, your only other options would be to either vote to convict, or let the prosecutor remove you to make way for someone who will.

Wouldn’t lying about your opinion of the law during voir dire be more morally defensible than, say, contributing to returning a freed black man to slavery?

I think most rational people would agree.

So that quickly dispenses with your moral absolute that it’s always wrong to lie to get on a jury. Which means we’re really debating under which specific circumstances it would be appropriate.

That’s a fine debate to have. Let’s have it. I’m perfectly willing to accept that smart, rational, morally upstanding people will define a considerable smaller set of circumstances where nullification is appropriate than I’d advocate.

But spare me the moral absolutes and histrionics.

Comment by Radley Balko — 3/8/2008 @ 8:29 am
MikeT, as Balko says, spare me the moral absolutes and histrionics.

Comment by SPQR — 3/8/2008 @ 8:44 am
There are always a bunch of nuts in these threads, but let me address Daffyd’s non-nutty point of line-drawing: In the United States as I know it, I would never lie to the court, nor would I nullify.

I don’t know enough about Daffyd’s cases to comment on them, (What was the law? What were, exactly, the facts? Were these all really jury trials?)

But the solution - as I occasionally point out to jurors - is to write angry letters, not to nullify. Or picket the courthouse. Or get on TV.

Operate within the rule of law.

Look, I disagree with some laws pretty fiercely - I think creating a duty to retreat from violent assaults is just awful social policy. But if I lived in a state where that was the law, and I was a potential juror on that sort of case, I’d answer the questions truthfully, and I’d vote guilty if that were appropriate.

Then I’d scream to anyone who would listen. And wouldn’t that be more effective, in the long run? A person’s guilt or innocence should never depend on the social policy of the jurors.

If I lived in a different country where the laws were unchangeable through the will of the people, I certainly might feel differently. For those who mistakenly believe law enforcement is de facto exempt from the laws, I can understand why they would be for nullification.

But I know that isn’t the case.

–JRM

Comment by JRM — 3/8/2008 @ 8:44 am
“nom de guerre” means name of the war and is a pseudonym taken in a war, often by a guerilla.

“nom de plume” means name of the pen and is a pseudonym taken by an author, or a commenter.

Yes that’s what they literally mean, but you’re still wrong. Nom de guerre was used amongst the french for various reasons and not just for guerilla fighters. The “war” is considered metaphorical rather than literal, in the sense that revealing your true name would expose you to some risk. Nom de plume originated in britain amongst writers who didn’t understand the metaphorical connotations of nom de guerre.

“voir dire” is indeed a term of art for a well known legal procedure. But it’s still French and not Latin and its “literal translation” is still not “to speak the truth.”

Yes it is french, old french, at which time it meant to speak the truth. The fact that a modern homonym derived from an entirely seperate source exists doesn’t change the meaning of the term. Just because the words look the same, doesn’t mean they are the same.

Comment by Taltos — 3/8/2008 @ 8:44 am
The only question you, the jury, are to consider is this:

Are the defendants guilty — in the legal, not moral sense — of aiding the Franks and Van Pels?

Comment by Godwin Bueller — 3/8/2008 @ 8:53 am
I agree that juries should have the power to nullify, but that it is, as DaffyDD says, an option that should be exercised very rarely in those cases where following the law would produce a result that one views as profoundly immoral. However, officers of the court (judges and attorneys) must pretend that no such option exists, because if it did, the defense attorney would have the duty to raise the possibility of nullification in his argumentation in every case in which it might help his client. In fact, if a defendant were convicted, and his attorney did not remind the jury that they could nullify, there might be grounds to reverse the conviction on competence of counsel grounds.

Comment by MadDoug — 3/8/2008 @ 9:01 am
Just a question that perplexes me as I read through this post and comments.
Some commenters utilize the trenchant and compelling racial arguments from the post civil war era. My question is: Would jury nullification in those cases have impeded civil rights legislation? Jury nullification would have ensured that there would not be a miscarriage of justice. Wouldn’t that in turn have obviated the need for civil rights laws which went beyond the laws that were nullified?
And why must we go back 130 years for examples? Could it be that current examples, ie drug dealers, are less compelling?

Comment by tom scott — 3/8/2008 @ 9:10 am
But finding the facts is a very important task — it’s usually what trials are all about, after all.

If finding the facts is so important, why are jurors paid only $5 a day when everyone else in the courtroom makes so much more?

Comment by Steverino — 3/8/2008 @ 9:18 am
Patterico is correct to lambaste Balko for his suggestion, because it isn’t really about jury notification at all, it’s about lying in order to promote an agenda.

The original point Balko cites, the position of having objection to participation in furtherance of activities one objects to, in this instance the ‘drug war’, is a legitimate, defensible point of view. Nothing in the original piece indicates that carrying through on such objection would include deception or lying - it simply skips over the steps in between being called for jury duty, and finding oneself in the jury room being asked to cast a ballot for guilt or innocence. As such, a huge oversimplification of the process.

Balko keys on this aspect, and offers what sounds like the reaction of someone who just listened to a close friend describing getting a traffic ticket they don’t believe they deserve, and offering the reply of “well, I’d have told that cop to stick it where the sun don’t shine”. Emotionally gratifying, but so far removed from likelyhood or reality as to be essentially meaningless - which is about the only way to assess Balko’s suggestion. Because his suggestion of lying/dissembling/misleading just to gain the position to be able to incite the act of jury notification based upon a pre-conceived agenda is just as reckless, although not quite so obviously dumb, as suggesting that someone should tell a cop to shove a ticket up his posterior during a traffic stop, and presupposes knowledge of how a hypothetical situation would play out, down to a tee.

That being said, I’m all for jury notification, if such a result is believed called for by the 12 people on the jury, after going through the entire process, without preconception, hearing the arguments and facts in evidence, and then determining that, in good conscience, that such a course of action would result in a gross miscarriage of justice. Not simply that ‘the law is an ass’; but that its application, and attendant result, in a specific given situation under consideration, would be clearly asinine.

And that, from a readily admitted layman’s perspective is a fundamental safeguard of our system of justice - which is summed up in the phrase ‘trial by jury’. Not trial by prosecutor. Not trial by judge alone (although that option does exist). Trial by a jury of 12 people, representatives of We the People, serving in their capacity of civic duty to both facilitate government of, for, and by the people; and to act as an essential ‘front line’ check against the miscarriage of state power and authority.

As such, while Patterico’s condemnation of Balko’s ridiculous suggestion is completely warranted, I have to disagree with both his apparent concurrence with, and the portion of the California Supreme court decision he cites, which tut-tut the entire concept of jury nullification, and that, because of this portion of the decision, it is essentially ‘against the law’. A comfortable position for those intimately involved with the exercise of the powers within the system as a profession, to be sure, but a complete misinterpretation, in my humble opinion, of how the system was designed to work in the first place. To give Patterico credit, he does acknowledge that juries have the power of nullification, but I don’t agree with his position that it is illegal, and find his comparison to wiretapping to be misleading, at best, regardless of how much he believes it to be a suitable example of his argument.

While probably unlikely, as it’s hard to imagine a circumstance that would lead to a case making it through the appellate process, and actually being granted cert, it would be interesting to see the matter come before the Supreme Court.

Comment by Wind Rider — 3/8/2008 @ 9:19 am
As a juror I HAVE HAD to interpret the law and not just the facts. The judge listed the charges that we could apply. None of us could confidently understand the legaleze. We asked for more explanation, were brought back into the court and the judge would only re-read the actual text of the incomprehensible law. So, we made up our own interpretation and convicted the person of one of the options. It was clear he had done something wrong so ‘not guilty’ was not an option we wanted to pick. I don’t see any significant difference between that and nullification.

Comment by Glenmore — 3/8/2008 @ 9:25 am
SDN, you beat me to it. I no longer have respect for the law. Pournelle’s anarcho-tyranny is a perfect description of what we have now, and I consider it my civic duty to nullify the more egregious examples whenever and however I can.

While I do not believe most drug cases rise to this level, some do. When the legislative process has been captured by the special interest groups (and I dare you to deny that is the case, from state to federal), then jurys become the last defense of the people the legislators are supposed to be working for.

And due to the wonderful education system we have had perpetrated upon us, most of the people are too damned ignorant to see what is happening.

I fear for our country’s future.

Comment by Tim McDonald — 3/8/2008 @ 9:32 am
Mr. Balko (#47): I read your blog and your other writings often enough so that I’m very amused at your faulting Patterico here for advocating strongly, and without always taking the trouble to advance his opponents’ arguments in their best possible light. You and hyperbole are no strangers to one another.

There is a stunning amount of cognitive dissonance in your writing. You hold yourself out to be, and I accept that you genuinely believe yourself to be, a defender of civil liberties. But it is a very shallow civil libertarian who can fail to recognize the dangers in asserting that there are times when it is appropriate to deliberately perjure oneself.

You choose for your hypothetical examples fact patterns that you think will gather universal agreement with you — as when you write (emphasis yours, and significant) that “of course there are times when it’s appropriate to lie in pursuit of a moral or just ends,” and you invoke fugitive slaves. But for one who passionately believes that the death penalty is always unjust and inappropriate, for example, it is a very, very short distance down that slippery slope to telling a lie to a court in order to conceal that prejudice (and the related intention to refuse to follow the Court’s instructions, and to vote against the death penalty without regard to the actual evidence). Perhaps I’ve missed your blog posts defending particular capital convictions, but tell us, if you would: Do you think it’s permissible to perjure yourself over your willingness to follow the law in capital cases?

How about in cases involving the Iraq War? How about in cases in which an anti-war protester has, while intending only damage to property, killed a policeman?

How about in cases involving a Republican politician, of whose corruption you’re already convinced beyond a reasonable doubt? If charges had been brought against Dick Cheney for his hunting accident in South Texas a few years ago, would it have been okay to perjure oneself to get onto that jury, to help ensure his conviction?

I don’t know how you’ll answer these questions. Perhaps to some of them you’ll say, “No, that wouldn’t justify perjury.”

But once you appoint yourself as being entitled to pick and choose which questions you’ll answer with a lie under oath, then you’ve committed yourself to mocking and subverting the rule of law, writ large. While I might applaud your circulating of petitions and shouting from the street-corners and exercise of your vote to try to accomplish the changes you seek, I cannot change the definitions of the terms “liar,” “perjurer,” or “oath-breaker” to exclude you from them, given your declared intentions.

Comment by Beldar — 3/8/2008 @ 9:34 am
MikeT, as Balko says, spare me the moral absolutes and histrionics.

You certainly spared yourself of any need to respond with substance.

You and Patterico have no problem making a morally absolute case against jury nullification, so I guess that makes you at least, a bit of a hypocrite.

Comment by MikeT — 3/8/2008 @ 9:36 am
This is an interesting thread that confronts a problem I’ve struggled with for years. Maybe I’ve read too many Grisham novels, but it does seem as if much trial questioning is not designed to get at the truth - but to push a point. Attorneys ask closed questions, insisting on a yes or no answer, in order to steer a witness. But the truth may be more complex than that.

I liked Dr. Helen’s comment best, “I am not sure what trials are, but it’s plain they are no longer about determining what happened.”

Maybe it’s helpful to clarify what exactly is being nullified here. If a person has made up his mind before even being appointed to the jury, then the jury itself and the jury process has been nullified. The false juror is not really participating in the effort to find the truth.

On the other hand, it may be the *law* that is nullified, even though the trial proceeded fairly and the entire jury heard and evaluated the evidence, but decided not to apply the law as it was envisioned some months or years before in Washington. Or it may be the *judge* (or the “system”) who is nullified, if the jury perceives that the local law enforcement is corrupt or pursuing an agenda, using the law as a tool to abuse its opponents.

It seems to me that good cases have been made here for nullifying the law or the judge - on occasion. Or at least for the system allowing for that possibility. But nullifying the jury by refusing to even consider the evidence on each side - that would nullify the entire system of law - the law, the judge, the prosecutor, the defence, and the community. It would be like trying to have a reasonable debate with a person who refuses to speak anything but gibberish.

(And here I’m hoping that no one considers this comment an example of such a debate.)

Comment by Don — 3/8/2008 @ 9:40 am
An Essay on the Trial by Jury –Lysander Spooner

Comment by Horatio — 3/8/2008 @ 9:42 am
If jury nullification is so reprehensible, why isn’t prosecutorial discretion equally vile? We regularly read of would-be victims using deadly force against their assailants, with prosecutors declining to drag the unfortunates into court to pay for breaking the law. Doesn’t this thwart the same laws that jury nullification thwarts?

Face it, prosecutors rarely press charges against these people for the same reason a jury would see fit to find them not guilty even in the face of overwhelming evidence: To do so would be a miscarriage of justice. And when prosecutors do try to punish these victims again for their crimes of self-defense, it is entire proper for juries to slap them down.

Comment by Jeffersonian — 3/8/2008 @ 9:45 am
“Typical Patterico. You can never merely disagree with someone, can you? It’s always, “I disagree, and the person I’m disagreeing with is a terrible person who should never be trusted!”

Radley: to be fair, you do much the same thing on your blog. I don’t know how many times you have ridiculed someone for holding a different point of view. Or called them dishonest or power hungry or any number of things other than possibly coming to a different conclusion than you based on their interpretation of the facts.

Having said that, I do mostly agree with Radley on nullification. We have a guy here who is going up on his three strikes and your out conviction. His last crime was walking out of a filling station with a sandwich he didn’t pay for. Yes, he is a life long criminal. Yes, he has probably done things he hasn’t been caught at that he should probably be in jail for. No, if I was on the jury, I couldn’t vote to convict knowing he would be going to jail for 20+ years for shoplifting a sandwich. The law is the law, but the law is also supposed to be fair.

Radley is not always right, and is a bit arrogant with those who disagree with him, but he has done some extremely fine work in exposing the abuse of the law by government and the police as well as absolute travesties of justice such as the Cory Maye conviction. While I disagree with a lot of what he says and am annoyed by his attitude sometimes with those who disagree with him, he does really good work that I don’t see others doing. While he may or may not be wrong on this particular topic, I see nothing to make me doubt him on other topics.

Comment by buzz — 3/8/2008 @ 9:55 am
OK, how about this.

Last year I was on a federal jury trying a monetarily large mail fraud and conspiracy case. The defendants were two minor players, facing 18 counts each.

The judge’s instructions said they were guilty if they’d participated in a scheme to defraud. The problem was, each of the defendants was completely uninvolved in their co-defendant’s deals. There were also counts involving deals that neither defendants were involved in - in fact, deals that they had been deliberately kept from knowing about. There were charges involving deals that occurred before they joined the company and after they left. There were charges involving deals that were clearly not fraud - there was zero evidence or testimony about those deals, just the charge.

By the judge’s instructions, if they had taken any part in any of the fraudulent deals, they were guilty of mail fraud in ALL of the deals.

BUT there was also an instruction that said they were only guilty if they’d done stuff to help the conspiracy along.

Ultimately, I found I could not convict a defendant for a crime I knew they did not commit, did not have knowledge of, and did not benefit from. A few weeks before Saddam Hussein had been hung for doing exactly that. It might be legal in the US for me to participate in collective punishment, but I wouldn’t do it.

Comment by ELR — 3/8/2008 @ 9:56 am
Let’s suppose that the city of Los Angeles passed a law that criminalized the reporting of illegal aliens to the Feds. A California appeals court has ruled the law constitutional.

A police officer who reported an illegal alien drunk driver to Immigration is on trial for violating this law. The city intends to “make an example” of him and is throwing the book.

You utterly oppose the law and feel that the police office was doing his moral duty and should be honored rather than jailed. Further, you feel that if any “example” is to be made, it should be in a very public upbraiding of the city and it’s immoral law.

You are called for jury duty. You are asked if you will uphold this law and render a verdict solely based on the evidence.

Your choices: Lie, and then vote to nullify. Or tell the truth and pass the duty over to someone who supports the law.

The legal choice is clear. The moral choice is not. Note: lawyers may not get this last part.

Comment by Kevin Murphy — 3/8/2008 @ 10:12 am
Jeffersonian (#62): Excellent point. I’m with you (and Daffyd and Radley) on this one.

Actually one of the commentators on Radley’s Reason piece made another good point: that if enough potential jurors openly assert a right to nullification during voir dire, even if they are all rejected as jurors, it might drag out cases long enough that prosecutors start thinking twice about going forward with the more questionable ones.

Comment by Joshua — 3/8/2008 @ 10:12 am
I have been struck from a jury panel because I strongly indicated that I not only would need to make a determination of the facts but would also need to read the statute to determine if the facts supported the alledge guilt or innocence based on my reasonable interpretation of the statute.

The accused may have clearly committed the alledged event which he is accused of said crime, however, I dont think it would be jury nullification if the not guilty consisted of applying the correct facts to the correct interpretation of the statute.

I realize that my position is contrary to the accepted position.

Moving the discussion to the civil courts, (for example personal injury claims) The decision is supposed to be based only on facts presented in the case. However, I would make the decision both on the facts presented plus facts which were omitted but which should have been presented. similar to the rule whereby documents withheld should be construed to be in favor of the other party.

Comment by Joe - Dallas — 3/8/2008 @ 10:23 am
In fairness to Mr. Balko, my last sentence in my comment above (#58) ought to have read: “While I might applaud your circulating of petitions and shouting from the street-corners and exercise of your vote to try to accomplish the changes you seek, I cannot change the definitions of the terms ‘liar,’ ‘perjurer,’ or ‘oath-breaker’ to exclude you from them, on at least a ‘would-be’ basis, given your declared intentions.” I don’t accuse Mr. Balko of having yet committed any of these transgressions; and if he’s ever summoned for jury duty and examined as a prospective juror by any lawyer who’s had access to his writings, he’ll likely be promptly excused for cause based on his avowed willingness to lie, whether he’s actually been called upon to tell one yet or not.

Comment by Beldar — 3/8/2008 @ 10:25 am
The anti-nullification position is based on the naked power and greed of lawyers who want to control every aspect of our lives. The game of criminal law is rigged so lawyers filter out many of the best and smartest jurors. It is necessary and appropriate for a juror to vote for justice, no matter what corner the legal monopoly club wishes to paint him into.

Patterico rails against the intentional misleading of lawyers in a court of law because he and his brotherhood of fascists hate the competition. Lawyers wish to be judge, jury and executioner by any means necessary, including the intimidation of free thinking jurors.

Comment by Horst Graben — 3/8/2008 @ 10:40 am
ELR (#64): Your story provides a good example of what jury nullification, properly defined, is not.

You apparently thought that under one of the Court’s instructions, the defendant should not be found guilty.

By definition, jury nullification occurs only when the jury believes that under the law as given to them by the judge, and under the facts as proved by the prosecution beyond a reasonable doubt on every element of the crime as charged, the defendant is guilty — but they nevertheless refuse to convict.

The system has lots of play in the joints that typically works in favor of the defendant. Prosecutorial discretion, mentioned (and sort of but not quite really explained) above, is one feature of the system that may result in charges that might be brought, and might be proved beyond a reasonable doubt, nevertheless not being brought.

Another huge source of play in the joints are in the constitutional requirement of proof beyond a reasonable doubt and the legal definition of circumstantial evidence. In theory, the necessary quantum of proof for conviction ought not vary from case to case, crime to crime, or statute to statute. Nor, in theory, should jurors be less willing to draw reasonable inferences in some cases than in others. In practice, however, it does: Some real-life jurors frequently require a stronger showing of proof, and are less willing to make circumstantial inferences from the proof that is presented, when the crimes charges are unpopular (or sometimes so-called “victimless”) crimes (e.g., solicitation of prostitution). But if the jury, or even one juror, is voting to acquit because it/he has a reasonable doubt, or because of a refusal to draw a reasonable inference from circumstantial evidence, then that’s not, technically speaking, jury nullification.

Yet another source of “play in the joints” has to do with the specific intent requirement that’s written into the definition of most crimes. Unless there’s been a confession, the defendant’s subjective intent almost always has to be proved circumstantially.

Comment by Beldar — 3/8/2008 @ 10:41 am
Mr. Graben (#69): Dammit, you’ve discovered our conspiracy. But just you wait.

Patterico is looking into your IP address. Soon we’ll compel your ISP to give us your home address. And then he and I will be on your doorstep, Mr. Graben, or maybe in your bedroom, injecting ourselves into your next argument with your wife. (We’ll flip a coin to see which of us gets you, which your wife.) This is indeed because of our naked power and greed to control every aspect of your life.

Govern yourself accordingly.

Comment by Beldar — 3/8/2008 @ 10:50 am
Yes, yes, yes. We are each and everyone of us wiser and kinder than the majority of our fellow citizens. Nullify away.

Comment by nk — 3/8/2008 @ 10:59 am
#71

Damnit, I was informed the first step would be goon-squads! I joined this conspiracy with the understanding I would be doing some goon-squading…

Comment by Scott Jacobs — 3/8/2008 @ 11:03 am
FYI, the conclusion from Glenn Reynold’s 2000 article on Jury Nullification:

“Given that the current criminal justice system is failing both at convicting the guilty and at protecting the innocent, perhaps it is time for a significant change. Reempowering the jury, through both appropriately couched nullification instructions and other structural mechanisms, is likely to improve the situation considerably. Considering the truly miserable record of the criminal justice system in recent years, the burden should be on its defenders to explain why such a change is not in order.”

Comment by DRJ — 3/8/2008 @ 11:12 am
And actually, I got distracted from my argument.

This isn’t _really_ about perjury, which is an extreme course of action at best. It is about the permissibility of the question “Will you blindly adhere to the law as the judge explains it to you, even though you come to believe that it is unconscionable or unconscionable as applied?”

The real argument is whether a defendant’s right to a jury trial includes the right to convince a jury of his peers that the LAW that he is accused of violating deserved to be violated, or at least ought not be enforced in his case.

Because if it does then the question at issue (and/or exclusion of jurors based on their answer) is as unconstitutional as exclusion on the basis of race or religion. Questions about which ARE impermissible.

Balko calls it a “perjury trap” but what it is is just a question that, by his lights, should be impermissible as it is an attempt by the state to marginalize the right to trial by jury, and that he feels that any answer is acceptable to an impermissible question.

Comment by Kevin Murphy — 3/8/2008 @ 11:22 am
What is the purpose to the jury? If it is just facts judges can do that. Those opposed to jury nullification want to protect the sanctity of the law over justice. A man that murdered his daughters rapist I would aquit. I dont think our society will collapse with a jury ignoring the law, anymore that letting the guilt free due to evidence obtained illeagaly

Comment by iowa — 3/8/2008 @ 11:23 am
am so sick of people citing the “historical precident” of jury nullification as a defense of the practice.

That’s certainly understandable in any opponent of jury nullification, since every single solitary case you can point to in history as a justification for the right to trial by jury, the Zengler case, the Penn case, you name it, every one was a case of jury nullification.

Jury nullification is why we have juries, period. If you’re going to ban it, you might as well abandon trial by jury, you’ve abolished it’s purpose.

I suspect the legal fraternity would do exactly that, if they thought they could get away with it. It has not exactly escaped notice that every time in the last century our government has helped another nation craft a constitution, it’s told them to omit this right.

Comment by Brett Bellmore — 3/8/2008 @ 11:36 am
Bellmore, your understanding of the beliefs of the “legal fraternity” is poor.

Comment by SPQR — 3/8/2008 @ 11:40 am
Am I wrong about the advice given Japan after WWII, or Iraq just recently? I don’t think I’m silly to see a deep connection between the fact that we help people to write constitutions which omit the right to trial by jury, and the way the legal system does it’s best to reduce juries to the proverbial mushrooms.

The legal community doesn’t like trial by jury. It’s so irksome having somebody outside their closed community making the final decision in these cases…

Comment by Brett Bellmore — 3/8/2008 @ 11:56 am
“If jury nullification is so reprehensible, why isn’t prosecutorial discretion equally vile?”

The anti-nullers need to deal with this.

Comment by Billy Beck — 3/8/2008 @ 12:04 pm
Dear Mr. Dyer: Your #68 has a perverse result. Saying what you intend to do, being honest, will get you excused from a jury. But having an agenda and keeping it dark, will let you succeed in conducting your experiment. Something wrong here.

Next, I’d like to hear why jury nullifcation is horrible (and it certainly can be as many acquitted Klansmen from the South in the 1920s will show), but unreviewable prosecutorial discretion is the lifeblood of justice.

How about voir dire for the officers of the court, drawing a salary or fees, as well as for the draftees, cannon fodder worht $15 a day? For example:

1. How often are the presiding judge’s instructions on what the law is, or jury charges, overturned when appealed? What sort of experience does a judge have for conducting trials, e.g. is this the first murder trial she’s ever conducted?

2. How many cases of this sort has the prosecution tried? Is the prosecutor a blowhard in the manner of Vincent Bugliosi who preened about winning 105 out of 106 cases, while not mentioning the ones he plea bargained out or dismissed to keep the average up? How often has the prosecutor filed a case, and later dismissed it because it blew up on him? Has the prosecutor ever talked about a jury’s duties, while neglecting to mention her own? How often does the prosecutor use jury consultants? Has a jury consultant been used on this jury?

3. How many of the officers of the court have had ethics complaints against them?

4. All officers to fill out long questionnaires filled with detailed personal information that the jurors could take home and discuss among themselves. If said information gets out to the public, well, that’s the way it goes.

All thse questions to be asked under oath, with a bailiff ready to haul a balky officer of the court off to the jug on the serious charge of contempt of the jury, should the officer start crabbing and squawking.

Why shouldn’t a jury know these things? I mean, besides there being no law that would require these nosy indignities to be inflicted on the officers? After all, as police and prosecutors are fond of telling us again and again, an honest officer has nothing to hide.

I’ll admit that lay folks seldom have a high opinion of said officers. But that’s because they have set themselves above us, and that camera angle is never flattering. You need only consider Prosecutor Reed Walters of Jena 6 fame who faced an unwilling assembly of Jena High School students, took a pen out of his pocket, and said, “I can ruin your life with the stroke of a pen.” Even Mr. Frey had to admit that, as a prosecutor, this was something he would never say. Or Judge Charles Breyer, of the Northern District of California who presided over the trial of Ed Rosenthal for mass growing of marijuana. Rosenthal had an agreement with the City of Oakland to grow this marijuana, but Judge Breyer refused to let this fact come out at trial. The jury is to determine what the facts are, but shucks, how’s a prosecutor supposed to keep his conviction rate up if such “inflammatory” facts are let through? Rosenthal was duly convicted. PS–Did the prosecutors ever go after the city of Oakland for agreeing with Rosenthal about the marijuana? What do you think?

This conflict between prosecutors and defense, and more broadly, between lawyers and the laity will never be completely resolved. At the moment, I think the lawyers have it far too much their own way, thanks to the drug war. This assertion does not do justice to lawyers, who would argue that two wrongs do not make a right. One wrong doesn’t either.

Sincerely yours,
Gregory Koster

Comment by Gregory Koster — 3/8/2008 @ 12:05 pm
I’m not sure I understand why it is ok for a prosecutor, judge, or panel of judges to “nullify” but not jurors. I’m sympathetic to concerns about the rule of law, but I don’t understand why the undue deference to to the opinions of members of the legal profession and contempt for the opinions of “the people”. Or are you going to seriously argue that members of the legal profession strictly contrain themselves to determining whether to prosecute and/or convict based solely on the law and evidence available? Since that is clearly not the case, I’d be interested in hearing an argument explaining why it is appropriate for prosecutors to decide not to prosecute when they have ample evidence of guilt, or why it is appropriate for judges to decide a case contrary to the text the law…but why it is not appropriate for citizens who are not members of the legal profession to do so.

Comment by MikeMangum — 3/8/2008 @ 12:16 pm
I strongly disagree with your interpretation of the law, and with your assessment of those who disagree with you. I don’t care what the California Supremes say, I don’t live in California. If this is how the State is run, I wouldn’t ever want to live in California. Fortunately, the Supreme court has not, to the best of my knowledge, declared jury nullification illegal. Until they speak, you can’t claim jury nullification illegal in the US.

Shakespeare was right.

Comment by John — 3/8/2008 @ 12:19 pm
Mr. Koster,

I’ll defer to Beldar’s superior wisdom and and knowledge of the legal process but I want to make one related point: Most Americans realize the value of vigorous economic competition but we still pine for the relative peace of cooperative ventures and wonder “Why can’t we all just agree?”

There is a similar dichotomy in law. We want people to get along but the legal system is based on the principle of zealous advocacy that often translates into contentious proceedings. It would be nice if we could resolve disputes without contention but time and experience have shown that zealous advocacy is more likely to result in justice.

Comment by DRJ — 3/8/2008 @ 12:24 pm
“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.”

The same sort of thing was said about MLK:

Those who purposefully and publicly disobey a law simply because they think it is unjust, and justify it to themselves by calling it “civil disobediance” - these people aren’t honorable citizens. They’re just lawbreakers - plain and simple.

And the same sort of thing was said of our founding fathers:

Those who rebel against lawful authority simply because they don’t recognise that authority’s legitamacy - these people aren’t honorable citizens. They’re just rebels - plain and simple.

The same sort of thing was also said of the jurors who refused to convict in the Star Chamber, wasn’t it?

Comment by MikeMangum — 3/8/2008 @ 12:40 pm
What a truly interesting thread!

Without remarking upon the merits of jury nullification, or the morality of perjury, I’ll add only this: Police officers, prosecutors and judges claim for themselves wide discretion not only in applying the law to the many cases that come before them, but also in deciding the very legitimacy of the law itself. (See, for example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).) But these same officials insist that jurors, drawn at random from the putative sovereign, are entitled to no discretion at all in the enforcement of our law, even when that discretion is limited to a single outcome.

It is of course possible that our courts and their officers have a compelling and principled case to make for the standards that they themselves have promulgated. It’s also possible that these standards reflect an extraordinary degree of institutional self-interest, and self-aggrandizement. Which is it? Perhaps the history of government generally is an instructive guide.

Comment by Paul S. — 3/8/2008 @ 12:44 pm
Mr. Bellmore (#79): Iraq and Japan were both countries that had no tradition of trial by jury in the way that we interpret that right, given our common-law heritage from Great Britain. Indeed, even in the modern U.K. and such other common-law countries as Canada and Australia, the right to jury trial has been substantially abridged, especially in civil cases.

As for what lawyers prefer: I can’t speak from first-hand knowledge about either prosecutors or criminal defense lawyers, but I can say with a high degree of confidence that in civil cases, your assumption is exactly backwards. Essentially all of the real trial lawyers I know (i.e., lawyers who regularly and actively try cases, as opposed to always settling them) strongly prefer to try their cases to juries. Most of the civil trial judges I know would far rather preside over jury trials, too.

I do recall Patterico writing here, and reading other prosecutors’ similar views elsewhere, to the effect that those of us who participate daily in the criminal and civil justice systems, including their jury trials, are generally not only the most knowledgeable about those systems, but their fiercest defenders and proponents.

Every time a jury is asked a question, for example, about whether a practice or action was “reasonable,” the system is taking a measurement using twelve citizens, good and true, as a proxy for the conscience of their community. After twenty-seven years as a participant in it, I’m still regularly astonished and frequently reminded of how well the system works on the whole. With all its flaws and its occasional misfires, I’d still not trade our American jury trial tradition for that of any other country in the world, past or present.

Mr. Koster (#81): Judges’ and lawyers’ qualifications are indeed tested, and far more thoroughly and intrusively than those of most jurors. We operate subject to more rigorous codes of conduct and professionalism, and while I think the bar and bench and their respective regulatory authorities can and should do better, the worst of us are indeed culled. But it’s not the job of jurors to do that testing or culling, nor are they particularly well qualified to do so by virtue of being jurors. (Bar and judicial conduct committees do indeed typically include “public,” i.e., non-professional, representatives, and I agree that that’s a good thing.) The questions asked of jurors are indeed intrusive and personal and sometimes pernicious, but the ability to demand that sacrifice of some dozens of your fellow citizens is part of the privilege you’d enjoy as an accused defendant entitled to be tried by a jury of your peers; and it’s the rare case indeed that such privacy intrusions cause any real or lasting damage or even inconvenience.

Comment by Beldar — 3/8/2008 @ 12:44 pm
wls (#10): welcome to a hobbesian world.

planet earth is a cage with about six and a half billion rats on two legs running around fouling it and competing for the available resources. quality of life equals available resources divided by the number of rats, uh, people competing for them. there will be winners and losers, boss rats and slave rats. the successful competitor avoids becoming a slave rat and captures enough resources to sustain him and his loved ones.

Comment by assistant devil's advocate — 3/8/2008 @ 12:45 pm
Mr. Mangum: Martin Luther King didn’t advocate perjury. He tried to get his society to change pernicious laws through conventional channels. In the meantime, to highlight their pernicious nature, he advocated open and honest civil disobedience — with the full expectation and acceptance of those laws’ adverse consequences. In fact, he frequently demanded the imposition of those consequences, since suspended sentences and dismissed charges didn’t make his political point nearly so clearly — and that became yet another effective technique for embarrassing the powers-that-were in the Jim Crow South. The founders of the American republic likewise did what they did openly, knowing that if they failed, they’d pay with their own lives and their entire families’ properties and honor.

These aren’t precedents to support lying when being questioned for potential jury service.

Comment by Beldar — 3/8/2008 @ 12:53 pm
Balko calls it a “perjury trap” but what it is is just a question that, by his lights, should be impermissible as it is an attempt by the state to marginalize the right to trial by jury, and that he feels that any answer is acceptable to an impermissible question.

Yeah, I think there’s merit in that comment. Back when Bill Clinton was equivocating about sex with that woman, I did a little thinking about lying.

The conclusion I came up with is that a “lie” is a statement or act, or failure to do either, that misleads a person entitled not to be misled.

So when the Nazis show up at your door, & ask you whether you are hiding any Jews in the basement, it’s not a lie to tell them “no,” even though your basement is full of Jews. Reason being, the Nazis have no right to be told the truth.

Likewise with the courts. If the judge or counsel asks questions which are intended to get you to disclose whether you would nullify, the issue is whether the court or counsel have a right to a truthful answer.

If you believe that nullification is one of the functions of a jury trial, then it’s not wrong to conceal that from the court - because the court & counsel have no right to know that’s how you believe if they are going to use that answer to exclude you from the jury, thus negating one of the functions of the jury.

So this whole issue about whether it is proper to “lie” on voir dire is a red herring. The real issue is whether jury nullification is properly a function of the jury.

I’m not entirely sure of the historical evidence for that function, but I’m pretty sure of the practical utility of the function. The potential for nullification is - as implicitly recognized in some of the comments - related to the question of prosecutorial discretion. That discretion is informed, in part, by whether the jury is likely to convict.

Seen in that light, I believe that prosecutorial discretion & jury nullification are both proper aspects of the prosecutorial power.

In other words, jury nullification ensures that the power of prosecutorial discretion does not rest entirely with the prosecution. That’s not to say that there are not other things that also limit the prosecution. But ultimately, the judgment about whether someone should be prosecuted has to lie with someone, & I would certainly prefer that judgment to be made not only by the prosecutor who brings the case, or the judge who insures that the prosecutor is operating within the bounds of the statute, but also by a jury who can decide whether this is what we had in mind when this law was passed.

Comment by Harmon — 3/8/2008 @ 12:53 pm
John #83,

Sparf v. US.

Comment by nk — 3/8/2008 @ 12:55 pm
If registration wall, try this link.

Comment by nk — 3/8/2008 @ 12:58 pm
it’s a completely off topic side issue but language is always fun. A little googling does reveal that “voir dire” does in fact mean “to tell the truth”. “See [them] say” is a false etymology based on modern french not the Anglo-Norman french the term is derived from.

[Anglo-Norman, to speak the truth : Latin vērus, true; see wērə-o- in Indo-European roots + Latin dīcere, to say; see deik- in Indo-European roots.]
- American Heritage Dictionary

Etymology: Anglo-French, “to speak the truth”
- Merriam-Webster’s Dictionary of Law

[Origin: 1670–80; < AF, equiv. to OF voir true, truly + dire to say]
- Dictionary.com unabridged

Comment by Steve — 3/8/2008 @ 1:02 pm
“when i use a word” said humpty dumpty in rather a scornful tone, “it means whatever i want it to mean.”
“i didn’t think you could make a word mean so many different things” replied alice.
“well, i can” replied humpty dumpty, “and that isn’t the issue. it’s who is to be master, that’s all.” –lewis carroll

you know my uncle, he’s as honest as me
and i’m as honest as a government man can be. –the grateful dead

Comment by assistant devil's advocate — 3/8/2008 @ 1:07 pm
Those who keep saying that the law is against nullification are mistaken. I have taken the time to find four court decitions that hold that it is a right. Three are from state supreme courts and one which is absolutely conclusive is by the US Supreme Court. They along with my full response to this post is here.
http://anglosphereunionnow.blogspot.com/2008/03/lying-and-jury-nullification.html

Comment by Steph Houghton — 3/8/2008 @ 1:08 pm
Steve,

I agree that language origins can be fascinating. It’s one reason I encouraged our kids to take Latin. They probably would have been better off taking French or Spanish but I still hope it will pay off in the long run.

Comment by DRJ — 3/8/2008 @ 1:09 pm
Steve #93,

It is not off-topic at all. Black Jack Shellac attacked WLS over this and by extension Patterico on the issue of honesty.

Comment by nk — 3/8/2008 @ 1:22 pm
nk #91 Sparf does not mean what you think it means.

Comment by Steph Houghton — 3/8/2008 @ 1:25 pm
Steph,

Read it carefully. Three times. Maybe four. Print it out and underline it. It’s an essay on jury nullification. It cites two old precedents (maybe) which imply that it is permissible. A lot more which say that it is not. And the decision is that jury nullification is not part of American law.

Comment by nk — 3/8/2008 @ 1:31 pm
nk, it’s off-topic in that it has nothing to do with the merits of jury nullification. Back-and-forth ad hominem arguments about an honest mistake over the etymology of a legal term (which at least one online legal dictionary also made) are off-topic in the way that all ad hominem arguments are off topic.

But, like a said, language is fun so I jumped right in

Comment by Steve — 3/8/2008 @ 1:36 pm
Gee what’s it been like 90 days since the last time Patt went off on Radley?

Should we align Patts views with those of Nifong’s for his use of broad brush condemning and condescending comments?

I could almost swear it’s like a couple kids in a sand box fight.

Personally I like both of them and think highly of both of them as well. Neither is 100% correct all the time, but neither deserves eternal condemnation for such.

Patt note DRJ’s post #74 above.

As to the subject of this thread, nullification is a CITIZENS tool to send a message to judges, lawyers and legislators, not one to be carried on your belt with your leatherman, but available when needed. A dozen citizens will also make the decision when to open the drawer and use the tool for the case they are responsible for at the time.

Comment by TC — 3/8/2008 @ 1:54 pm
“In 1940, Germany invaded France.

In 1944, the United States invaded France.

No difference, right?” - Godwin Bueller

When the United States invaded it was known as “French-Speaking Germany” (aka Jew-Free France).

Comment by Correction Dept — 3/8/2008 @ 1:55 pm
TC #101,

Perhaps I should have said so in my earlier comment #74 but I think Prof. Reynolds is wrong on this subject. Not to mention his over-the-top rhetoric — I don’t see any basis for his conclusion that the American criminal justice system is “failing” and has a “miserable record.”

Comment by DRJ — 3/8/2008 @ 1:59 pm
Proof positive that I am fossilizing as we speak, (and I’m not as old as Hillary or John and slightly older than Barak):

How in the world is this even remotely up for serious debate? If I go INTO the courtroom and lie, “misdirect”, conceal, obfuscate, parse and shade my answers…in order to effect an outcome upon a case that I have not yet heard ANY evidence, nor been given instructions on the law by the court, nor even heard argument from either counsel…. in what parallel universe am I to be considered a “fair and impartial juror of his/her/their peers”?

Mr. Balko, it seems, would have no theoretical problem with me sitting on a case in which he fights for his life, and I, selected from the venire can impose my political and personal will upon his fate with his blessing.

Whereupon, I intentionally evade detection during voir dire to further advance my political and personal animus toward Mr. Balko.

The facts are irrelevant and the law and instructions by the court, even moreso. My intention in being seated at the outset, is solely to impose my will upon the proceedings. Oh, his shrewd lawyer and the namby-pamby judge have excluded evidence about his blog and writings, but I know that he is an admitted liar and therefore because I disagree with his “outside the courtroom” politics and positions…I vote to hang him and hang him high.

I make the law in CFBleacherWorld and I am bound by no other. I don’t trust the system to work within its confines, so I make it work for me, inside mine.

I sit as the Stealth Judge, making my own rulings on what is admissible, which laws to apply, which instructions to ignore. I sit as a super-legislator making, enacting and enforcing my own laws as I see fit. I’m the New Millenium’s Self-Absorbed Man, and if I want Balko fried, no sissy system with all its pomp and ritual should stop me.

My only hope though, is that the eleven suckers chosen to sit with me don’t feel the same way too, only in a different direction.

Look, I’m no babe in the woods. The whole reason I found it disagreeable for federal judges to conduct voir dire in my stead, was because I could get a sense when someone had an agenda if I chatted with them myself. And yes, parties lie, witnesses lie, people self-enforce laws all the time on the highways…yes, I get it.

But we are a nation of self-governing neighbor citizens and the law is a process of ours, not a thing of ours. If you seek justice and honor from it, you have to contribute justice and honor to it.

.

Comment by cfbleachers — 3/8/2008 @ 2:01 pm
Amen, CFBleachers, and I wish I’d said it.

Comment by DRJ — 3/8/2008 @ 2:03 pm
nk. It’s also worth reading the dissent. Also an essay on jury nullification but coming to the opposite conclusion. As for me I don’t hold the courts in any higher awe than any other branch of government. They are as capable of getting it wrong as congress, or the executive. Which is of course why I believe jury nullification is a legitimate right and part of the whole point of having juries (based on the quotes by Adam, Jay, Jefferson I cited above as well as Hamilton’s bit about the importance of juries in Federalist 83 I think I’m in good company). It is not surprising that judges have ruled that it is an illegitimate exercise of the jury’s power, the courts are one of the powers checked after all. But such checks and balances are the genius of our system, and of course the powers being checked don’t like it when it happens.

Comment by Steve — 3/8/2008 @ 2:22 pm
Did this whole mess start (that is, quizzing potential jurors about their belief in jury nullification) when the (was it the courts or the legislatures?) began forbidding nullification as an argument brought up by the defense? If so, could the solution be to remove that restriction?

Comment by htom — 3/8/2008 @ 2:23 pm
DRJ, I really did not read any of glens’s piece, “Not to mention his over-the-top rhetoric” Which is why I do not read his stuff. I pointed it out only because it appears to have been written a decade ago by somebody else supporting what the writers of a Television program said to Time magazine that Radley choose as a subject in a thread.

Radley, then goes on a short discussion and specifically focuses on the “WAR on Drugs” and gets reamed out for it.

Not intended to sound as if you supported the subject or not, more just that Radley was really not the author of the subject.

Lying, ethics, morality and on and on and on. EVERYBODY lies, (or pick your favorite alternate term)!

Comment by TC — 3/8/2008 @ 2:24 pm
I’ve had two voir dire experiences as a potential juror. The first time, I told the judge I couldn’t abide by the strictures of the law. The prosecution bounced me. But I was deeply conflicted. I knew I could never, in good conscience, abrogate my sacred right to nullify. I recognized and understood that the odds I would resort to nullification were incredibly remote, but I just couldn’t bring myself to giving up the possibility.

The second time, I ended up being the foreman. I had decided in the intervening time that I would take the oath as dictated by the California Supreme Court and trust that I wouldn’t have to exercise nullification.

I’ll do it again. I’ll do it everytime.

The bottom line is that I have every intention of following “settled law,” but if that law ends up offending my deeply-held sense of justice, the law loses. This would be an extreme rarity.

Comment by Ed — 3/8/2008 @ 2:30 pm
TC #108,

I see your points, and I didn’t think you were pointing out that link because it was mine. I figured it was because it was the Instapundit’s.

I like Prof. Reynolds a lot and respect his writings but that one isn’t one of my favorites. I think reasonable people can disagree about the validity of jury nullification but I have a problem with those who advocate the use of deception (like Balko) or who suggest the criminal justice system is miserable (like Reynolds). I hope they are both using heightened rhetoric to make a point, but I still think it’s unfortunate.

Comment by DRJ — 3/8/2008 @ 2:55 pm
nk #99 I have read Sparf carefuly more than once. I am law student writing a paper on this subject. The opinion is saved to my lap top. While I think the majority is wrong, they do not say jury nullification is unlawful, only that they don’t like it and that judges don’t have to instruct jurys about it. In any event they dissent is clearly the better arguement with the older precident. The fact is if anyone had a right to say what trial by jury means in the context of the US Constitution it was the First Chief Justice of the United States and the unanimous Supreme Court. They did in Georgia v. Brailsford, 3 U.S. 1 (1794) They held that you and patterico are wrong.

Comment by Steph Houghton — 3/8/2008 @ 2:56 pm
Steph Houghton,

When the Sparf Court ruled that a trial court judge did not have to instruct a jury about nullification, was that a holding or dictum? I thought it was a holding. If so, doesn’t that make Sparf precedent on that subject?

Comment by DRJ — 3/8/2008 @ 3:00 pm
Blackjackshallec — “Voir Dire” is “Old French” which is a dialect of Latin.

And it means, according to Black’s Law Dictionary: “To speak the truth.”

Comment by WLS — 3/8/2008 @ 3:01 pm
Steph,

My Constitutional Law professor was a regional director of the ACLU. I graduated from law school believing that no law was valid unless necessary to advance an overwhelming state interest and was the least restrictive means. You won’t be a lawyer until you have put your law professors behind you. The rule of thumb is one year away from them for each year you spent with them.

And a majority of the Supreme Court saying they don’t like jury nullification and no judge need instruct it to the jury is law. No matter how much more attractive the dissent is.

Comment by nk — 3/8/2008 @ 3:09 pm
Mr. Houghton (#95 & others): Modern federal criminal law not only refuses to approve jury nullification, it gives the federal trial courts real teeth to root it out. See, e.g.., United States v. Kemp, 500 F.3d 257, 303 (3d Cir. 2007), cert. denied, 2008 WL 219248 (2008)(case citations & footnotes omitted):

While it is undisputed that in certain circumstances, district courts may discharge a juror for cause during deliberations, see Fed.R.Crim.P. 23(b), we have yet to enunciate the appropriate standard. Any standard must accommodate two clashing interests. First, it is clear that “a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the government’s evidence.” Any other rule would eviscerate the right to a unanimous verdict of guilt. On the other hand, courts agree that a district court has the authority to dismiss a juror-even during deliberations-if “that juror refuses to apply the law or to follow the court’s instructions.” That is because “a juror who refuses to deliberate or who commits jury nullification violates the sworn jury oath and prevents the jury from fulfilling its constitutional role.”

As I recall it being taught to me in law school, the law on jury nullification in the state courts varies slightly from state to state, but the opinion that Patterico quoted from the California Supreme Court is certainly recent, and entirely definitive for that state. Its Texas counterpart is Hill v. State, 90 S.W.3d 308, ___ (Tex. Crim. App. 2001)(emphasis in original), which makes the precise distinction between power and legal authority that Patterico made in his original post:

Although a jury of eleven can render a verdict in a criminal trial, this does not mean that a trial judge must require a jury of eleven to render a verdict. There is an enormous difference between having the “power” to do something and being required to do it. For example, a jury has the power to return a verdict that flies in the face of the law and the facts,[FN11] but that does not mean that a trial judge must require jury nullification.

Footnote 11 in turn reads:

See Ramos v. State, 934 S.W.2d 358, 367 (Tex. Crim. App. 1996) (“As for the so-called right to jury nullification, … [t]he jury has the power to nullify, but the appellant does not have the right to a jury who will nullify”); Mouton v. State, 923 S.W.2d 219, 221-22 (Tex. App. — Houston [14th Dist.] 1996, no pet.)(“while jury nullification may exist as a part of our justice system, it is not a legal standard and is not a constitutional right of the defendant. The court’s duty is to instruct the jury on the law”).

The Ramos case, in turn, points out that the United States “Supreme Court has expressly stated that ‘nullifiers’ may constitutionally be excluded from the jury,” 934 S.W.2d at 367, citing Lockhart v. McCree, 476 U.S. 163, 72 (1986).

I would be very surprised if this were not the majority rule, or close to it. I would be very surprised if many, or even any, states permit defendants to obtain jury nullification instructions in modern practice, or if any refuse to permit defense arguments explicitly based upon jury nullification, or if any seat jurors who’ve testified in voir dire that they intend to engage in it.

Comment by Beldar — 3/8/2008 @ 3:12 pm
Dear Cfbleachers: You write:

“How in the world is this even remotely up for serious debate? If I go INTO the courtroom and lie, “misdirect”, conceal, obfuscate, parse and shade my answers…in order to effect an outcome upon a case that I have not yet heard ANY evidence, nor been given instructions on the law by the court, nor even heard argument from either counsel…. in what parallel universe am I to be considered a “fair and impartial juror of his/her/their peers”?

That’s easy: you are in the same universe whereby a prosecutor, “bound to ‘do justice’” never puts his thumb on the scale, and treats all cases equally, a universe where “prosecutorial discretion” does not exist. You do not say so explicitly, but I think you are a working lawyer. What this non-lawyer wants is for the lawyers to follow the same rules they prescribe for everyone else. Why shouldn’t jurors know if either side has hired jury consultants? Why shouldn’t jurors know how often a presiding jduge is reversed on appeal? Why shouldn’t jurors know how often a prosecutor plea bargains case as opposed to trying cases? Why is juror ignorance so desirable?

Further, juror nullification is almost always a refusal of juries to convict. The converse, when juries convict out of prejudice, has the safeguard that the judge can throw out the verdict. Functionally, juror nullification gives the same results as proscutorial discretion. If one is obnoxious, the other is equally so. The only objection I can see to jury nullification is that the jury can’t always get the facts and guidance it needs, having no investigative powers of its own, and always facing a judge’s arbitrary power with no real defense. In the Rosenthal case, the only reason the jury voted to convict was that the judge, at the behest of the prosecution, refused to let the jury know that Rosenthal had been growing marijuana at the city of Oakland’s behest. So they did not know what they needed to nullify an unjust result.

For DRJ: I’m greatly obliged to you for the striking image in your 84. The problem I have with it is that, once again, the jury has no real power or ability to find out what bamboozlement is going on with zealous advocacy. Want proof? When the Nifong imbroglio was heating up, the Durham defense bar issued a statement saying that Nifong played by the rules, and gave everyone a fair shake. This carried weight precisely because it was by Nifong’s adversaries. But it blew up in the defense bar’s face. There’s two possibilities:

1. The Durham defense bar is composed of ninnies.

2. The Durham defense bar knows dam well which side its bread is buttered upon, and at the time they issued the statement, thought Iron Mike was going to continue to be the DA.

If 1) is true, ‘zealous advocacy’ is a rigged game. If 2) is true, ‘zealous advocacy’ is a cynical fraud, fed to suckers to keep them quiet. Neither of these possibilities is heartening, leading to a third conclusion: working attorneys would