August 28, 2006

Jury Nullification Or Nullifying the Jury?

Hatched by Dafydd

Patterico has an interesting challenge on his site, which he calls a "Question for Those Who Support Jury Nullification." He notes that jurors are required to raise their hands and swear to the following oath, under penalty of perjury, before they can begin hearing a case (here in California, at least; I'm not sure that the wording is exactly the same in other states or venues):

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court? [Emphasis in Patterico's original]

Patterico is a deputy district attorney in California, and he is, not surprisingly, very much against the concept of "jury nullification," by which jurors -- even though they believe that good evidence was presented that the defendant did indeed commit the actions that are illegal -- nevertheless vote to acquit... on the basis that the law itself is wrong or is wrongly applied.

(That is what ordinary, intelligent, well-read people understand by the term "jury nullification;" and that is the definition I use throughout.)

An example would be a person who passionately believes that medical marijuana use should not be illegal; so even though he believes that the defendant did actually purchase the weed, he votes not guilty -- because he believes the defendant did so to relieve his nausea while undergoing chemotherapy. (We're assuming this is in a state where such use of marijuana is against the law; I don't want to get into the situation in California, where state and federal law often collide.)

Patterico enunciates this ringing challenge:

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

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

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

To answer directly, I would take the oath, and I would have every intention of faithfully applying it; but if a situation arose where, in my best judgment, obeying the instructions of the court would directly subvert the dictates of justice and truth, then I would resolve that conflict in favor of the latter... and I would violate my oath on grounds that, when one party has breached an essential element of a contract -- in this case, the social contract -- the other is not obliged to remain faithful to his own side of the agreement. (If Hezbollah refuses to disarm, as they agreed to do, then Israeli is not obliged to withdraw, though they agree to do so.)

I myself do support jury nullification -- in concept; I certainly don't support every case where somebody invokes it. So I think it fair to say that this post is directed to me, among others... and that I should respond and defend my beliefs. So here goes.

The law is a ass, a idiot

We are talking, recall, about a fascinating discussion sparked by Patterico on his site, which you can find here.

There is a bad tendency among nearly all lawyers I know to mistake the law for the more abstract justice or even truth. Good attorneys like Patterico try hard not to let themselves fall into this trap; still, it permeates legal thinking, and I conclude it's almost impossible to fully overcome. I'm sure it's subtextually taught in law school -- I doubt any law school suggests lawyers should evaluate the law and decide whether it serves valid ends before embracing it.

But clearly non-lawyers understand, and nearly all lawyers would agree, if you put it to them so bluntly, that the law is not an end to itself; rather, its purpose, from the preamble to the U.S. Constitution, is to "establish justice" and "ensure domestic tranquility."

Most of us also realize that Jefferson was not wrong when he wrote, in another of our "organic documents," the Declaration of Independence, that "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

(And taking into consideration the purpose and provenance of that document, no serious person would argue that Jefferson only meant legal means of abolishing a form of government!)

The Devil, of course, is in the details. (And wears Armani, not Prada; but that's a different argument.) Jefferson seems to have been a perpetual revolutionary, and of course you cannot construct a society based upon a violent revolution every twenty years; neither, however, can you make a society on the basis of stasis, where you support it no matter what it does or how far it drifts from its philosophical underpinnings. Each man and woman makes this decision every day, when he chooses to obey or ignore specific laws of the land. The speed limits, for example.

There is a legal adage that "hard cases make bad law." But hard cases must still be dealt with; they cannot be wished away. So let's dive into an example or two and ask, in each instance, what you -- and Patterico -- would do.

Situation: the court's instructions are flagrantly against the law.

Suppose you were a juror in a trial of a man accused of robbing a liquor store at gunpoint. You have listened to the evidence, and you believe he was probably the culprit, but you have doubts that you consider reasonable... maybe it was somebody else.

But then, when the judge gives you instructions, he tells you that you must convict if you believe the defendant guilty by a preponderence of the evidence; that if you think it more likely than not that he did it, you must convict.

Now, you know -- and certainly Patterico would know -- that this is completely wrong! You cannot vote to convict if you have a reasonable doubt, merely because you think the defendant is "probably guilty." So what do you do?

You already took the oath, having no idea that this would come up; so "would you faithfully apply it, or not?" Would Patterico?

You have two options: you can faithfully apply your oath, find the man guilty, and hope to heck that his lawyer is able to get the verdict overturned in the appellate courts. But what if the instruction itself resulted from some collusion between the prosecutor, the judge, and the defense lawyer? What if the defendant is obviously ignorant of his rights? What if nobody bothers appealing, for whatever reason, and the verdict stands, sending the poor schnook to prison for eight years -- or longer, if this is a third strike?

Can you, in good conscience, vote against justice, hoping that somebody else will come along and clean up the mess?

I, myself, would vote not guilty; if asked why I voted not guilty, I would refuse to answer... it may be courageous to stand up to such injustice, but it's grandstanding (and senseless immolation) to spit defiance into the face of the judge.

Situation: the unjust law

In a horrible twist of fate, the Democrats seize back both houses of Congress, and in 2008, Hillary becomes president. There is another terrorist attack in September, 2009; and the Democrats, following the precedent set by their Dear Leader in 1942, enact a series of laws restricting all persons of Arab descent or who are Moslems from assembling in public places or failing to register their whereabouts with the federal government. This law is applied even to American citizens.

Challenges are working their way through the courts; but for some reason, several have already been decided in favor of the Democratic position. You're called to jury duty, and during voir dire, you realize the nature of the case will involve enforcing those laws: "would you take the oath, or not?" Would Patterico?

If you do not, you will be replaced by someone who will, of course. This relieves you of direct personal responsibility in this instance... but it certainly doesn't relieve you of what you see (I would hope!) as the moral duty to fight such outrageous injustice.

Scamping jury duty by refusing the oath -- assuming it doesn't become such a mass protest that it moves mountains (as few do) -- merely means injustice will continue, administered by jurors who either don't care about justice or else agree that all "A-rabs" and "Mohammedans" are wicked and should be jailed on general principles: "The only thing necessary for the triumph of evil is for good men to do nothing," as Edmund Burke is supposed by some to have said.

I myself would take the oath, even knowing there was a good chance that I would eventually be forced to break it; I do not believe that moral judgment can be dodged, but must be embraced when demanded.

Let's suppose you took the oath. You find yourself sitting on a jury trying a defendant, Achmed Mohammed, who has no history of any criminal or violent acts. He is accused of nothing more than using a false name, calling himself Allan Michaels and denying that his parents came from Saudi Arabia in 1958... such behavior being a flagrant violation of the Emergency Arab Isolation and Moslem Suppression Act of 2009.

The charge is conclusively proven; his fingerprints clearly show that he served in the US Marine Corps in Iraq under the name SSgt. Achmed Mohammed, where he earned a minor medal and a Purple Heart. The judge instructs you that if you believe beyond a reasonable doubt that Allan Michaels is really Achmed Mohammed, you must convict. And there is that pesky oath you took to render verdict according to "the instructions of the court."

"Would you faithfully apply it, or not?" Would Patterico? I would not; again, I would break my oath, on the moral grounds that the justice system to which I swore it broke its own unspoken but nevertheless welll-understood oath to operate in a manner consistent with justice.

Situation: the just law applied unjustly

You're asked to serve on a case where a felon was found carrying a concealed weapon. Since you're not a gun-rights absolutist (you don't believe felons have a general right to carry concealed firearms), you agree to serve and you take the oath. Nothing in voir dire makes you at all suspicious.

But as the trial progresses, you discover that the felon is a nineteen year old girl who was convicted of credit-card fraud a year earlier... probably because her then-boyfriend talked her into it. After her conviction, which resulted in her serving a year in prison, she broke up with the boyfriend; and from all the evidence, it appears she reformed herself. She had not been arrested or even suspected in any subsequent crimes, and she pled guilty to the original charge and cooperated fully -- including giving a complete statement to the cops against her ex-boyfriend, for whom an arrest warrant has been issued.

But once she got out of the slam, the boyfriend, who was never apprehended, began stalking her. He repeatedly told her he would kill her. (Yes, I know; you're way ahead of me.) She went to the cops, but they told her that they were already doing everything they could to find the boyfriend; he is an elusive blackguard, and they couldn't guarantee they would catch him anytime soon. (We even assume the cops are entirely sympathetic and really are doing everything humanly possible.)

She moves, and he finds her again. She applies for the right to own and carry a firearm, but it's denied because she is a convicted felon. But she obtains a gun illegally and carries anyway. That crime comes to light because... one dark night, when she's coming home from night school, where she studies underwater welding, the boyfriend roars up in a car with a couple of his cronies and tries to kidnap her. She draws on him, shoots him, and kills him; the other thugs drive away, promptly crash the car into the front door of a police station, and are all arrested.

The girl is not charged with murder, homicide, or even ADW, because the cops thoroughly accept her explanation that she acted in self-defense. However, this being Los Angeles, she is nevertheless arrested for being a felon in possession of a gun and carrying a concealed gun without a concealed-carry permit. The case lands in your lap, as a juror.

Ample evidence is presented that she really did try to do everything legal a reasonable person would think to do before resorting to arming herself. She was terrified; she knew he would try to kill her to prevent her testifying against him... and she was right! He did exactly what she thought he would.

You took an oath to decide per the instructions of the court; the evidence is clear that she is a felon, that she obtained the gun illegally, and that she had no CCW permit. But the evidence is also clear that she had no mal intent (other than to violate those two laws); and you know that the penalty for those crimes would be many more years in prison. Maybe the judge would take pity on her; but maybe he wouldn't. How do you know? Maybe, unbeknownst to you, he's nicknamed "Hangin' Judge Harry" by his colleagues.

So... "would you faithfully apply [the oath you took], or not?" Would Patterico?

My answer is the same as in the other two cases: there is no question in my mind -- it's not even close -- that the law was never meant for a situation like this; I would be utterly compelled to violate my oath under moral law.

The slippery slope

The typical argument against jury nullification is that it creates a slippery slope: soon everyone is just picking and choosing which cases to convict and which to acquit on the basis of psychotic ideas of "justice" or even irrelevant biases. Once people get the idea that they can rewrite the law in the jury room, no one will be safe from runaway juries.

And indeed, there have been such "runaway" juries. Some maintain that the O.J. Simpson jury engaged in it by acquitting "the Juice" despite a mountain of evidence. (I don't believe that's true of most of them; I think they didn't believe the charge because of pre-existing prejudices -- so they violated their oaths for a different reason.) Let's suppose that this is true, that at least one juror believed Simpson did kill Ron Goldman and Nicole Brown Simpson, but he voted to acquit because he believed that "the Man" was always sticking it to the brothers, and it was morally right, and would lead to racial equality, for one of the brothers to stick it back to the Man by acquitting Simpson.

Others point to juries in the Jim Crow South that routinely acquitted white defendants who lynched blacks and Jews; it is not even arguable that such juries didn't exist -- the evidence is overwhelming.

Does this then invalidate the concept of jury nullification? No, because abusing a right does not make the right itself an abuse.

How many people have abused freedom of speech and of the press to pass classified secrets to our enemies via the New York Times and Washington Post? How many people have abused the right to keep and bear arms in order to murder their wives? We do not throw out these babies because they are sometimes surrounded by foetid bathwater.

Let me quote from a fellow I'm reading right now, Francis S. Collins, author of the Language of God (and the head of the Human Genome Project). Speaking about the "slippery slope" arguement in a very different context, Collins wrote:

While there is clear danger in unrestrained forms of "liberal" theology that eviscerates the real truths of faith, mature observers are used to living on slipper slopes and deciding where to place a sensible stopping point.
Collins, the Language of God, 2006, Free Press, p. 209.

Similarly, we do not see a wave of such jury nullification for tendentious or idiosyncratic reasons. We do not see tax resisters routinely acquitted, even though we all hate paying taxes. We don't see racists acquitted, even though we all have some sort of irrational prejudice. We do not even see a wave of hung juries in drug-possession cases. The huge majority of people on most juries is content to accept the law as elucidated by the judge in his instructions. It's a rare reaction -- whether done properly, or even done wrong-headedly.

The Framers of the Constitution demanded that final judgment be in the hands of a jury, if the defendant or prosecutor wants it so; this is because, in the end, we have government by the consent of the governed, and civilian juries are the most direct way to test that in individual cases. This is the "golden thread" that connects the American judicial system to the centuries of English common law from which it arose.

We cannot abandon the role of the jury as the last bastion of common-law justice in criminal cases simply because a few pathetic people are incapable of distinguishing between moral necessessity and personal preference or prejudice; we must govern society by our rules, not by theirs.

This also answers Patterico's question about the rogue cop: I want the police to have some discretion in deciding whether to arrest someone who is clearly guilty of a technical violation; and I want prosecutors to have discretion in deciding who to prosecute, and who to let off. I demand they have such authority, despite the fact that some cops let their friends off, and some prosecutors decide what cases to pursue because of personal bias or ambition.

Without the human element, even betimes in defiance of mechanical judgments of guilt or innocence, "justice" becomes a soulless, heartless, senseless steamroller, crushing the individual between the asphalt of necessity and the steel of the Law.

I do not want trial by foolish consistency; I do not want to be tried by computer. I want a judge to be able to hear a jury say "guilty," and to respond, "that's ridiculous; I'm overruling that verdict and finding him not guilty."

And likewise, I want the jury itself to be able to reject what would be a preposterous result and find a defendant not guilty, even when a computer with no higher moral sense would insist he was guilty beyond a reasonable doubt.

Don't you?

Hatched by Dafydd on this day, August 28, 2006, at the time of 4:19 PM

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Tracked on August 30, 2006 1:15 AM


The following hissed in response by: Gbear

In NYS we seem to have a problem with judges taking the oath!

The above hissed in response by: Gbear [TypeKey Profile Page] at August 28, 2006 5:07 PM

The following hissed in response by: dawnsblood

I think this is the best defense I have heard for JN.

For your item: 'Situation: the unjust law'
All I can say is that in 1992 I swore an oath that I would defend the Constitution against all enemies foreign and domestic. This sounds like it qualifies. So add me to the converted.

The above hissed in response by: dawnsblood [TypeKey Profile Page] at August 28, 2006 6:01 PM

The following hissed in response by: jgrif

Well argued, Gbear. Perhaps because of media distortion, I suppose, it is easy to despair about today's jury system.
Yet the jury; the parties to the case; the judge are in all pursuit of one thing: justice. That route (as you establish) can indeed be a winding, tangled one.

Retaking, and reasserting the honest role of, the courts (a theme I take from your essay) is paramount. Americans must come to again believe in the efficacy and fairness of their judicial system. Many (and I) don't.

For instance: There exists the perception that certain bodies (mega corporations) or individuals (bottomless pockets) are above the law, that they can win any court war. That juries are sometimes no more than 'rubber stamps' for socially engineered laws from elsewhere.
That courts are used to enforce unConstitutional rule on other parts of society. That judges (thinking of the Seattle? judge last year who spoke from the bench against the war on terror) exercise authority not granted to them by the people.

That enough people, many in the legal profession, don't respect the Law. Nor do they uphold it.

So, yes--certainly- to your argument.

The above hissed in response by: jgrif [TypeKey Profile Page] at August 28, 2006 8:05 PM

The following hissed in response by: jgrif

Dafydd, a misreference in my opening sentence, for I am certainly applauding your argument (and Gbear's comment).

The above hissed in response by: jgrif [TypeKey Profile Page] at August 28, 2006 8:08 PM

The following hissed in response by: k2aggie07

Dafydd, I find myself agreeing with you about a great many things.

I think, however, that the chief basis for JN is the fact that it places power in the hands of the people. In this way, no matter how evil or heinous the justice is, honest folks have a way out from under the thumb of tyranny.

Like all freedoms, it can be abused (see the KKK trials in the South), but that isn't a purpose for ending it.

The above hissed in response by: k2aggie07 [TypeKey Profile Page] at August 28, 2006 9:41 PM

The following hissed in response by: Dan Kauffman

A Jury of Peers is one of the last defences against unjustice.

If the Court's Instructions were for me to find what I considered an innocent person guilty, I would have no choice but to defy them.

If the Court wished to punish someone for what I consider an exercise of the First Amendment, I would have to defy them.

I have Patterico's Pledge posted on my website
If the FEC makes rules that limit my First Amendment right to express my opinion on core political issues,

I will not obey those rules."

Should I find myself on a Jury trying someone for a Case covered by McCain-Feingold

Just WHAT would he expect me to do?

Follow the Court's Instruction and find them Guilty?

The above hissed in response by: Dan Kauffman [TypeKey Profile Page] at August 29, 2006 12:07 AM

The following hissed in response by: great unknown

Beautiful in both content and style.

I have to disagree with you on one critical point. The legal system does not, in the crunch, value truth and justice above legal procedure. Attorneys must often defend clients whom they know to have committed a crime - I can't say guilty because that is determined by trial. Indeed, legal "ethics" require a defense attorney to obfuscate and obscure in the defense of their client is that is the only way to gain acquital.

Furthermore, consider the venue shopping done in liability litigation. Or the massive fees in class action suits that net the putative plaintiffs almost nothing. Does this indicate a search for truth and justice?

There is no oath administered to attorneys to "tell the truth, the whole truth, and nothing but the truth." If there were, and it was enforced, the legal system, and the country, would be a much more pleasant and ethical place.

The above hissed in response by: great unknown [TypeKey Profile Page] at August 29, 2006 7:34 AM

The following hissed in response by: Big D

Sorry, but I have a rare disagreement the Big Lizard.

"The law is an ass, a idiot." The law is not anything. It is an inanimate object. A tool for social justice. The law doesn't think. It doesn't feel.

However, people are asses and idiots. All the time. Presidents, legislators, defendants, lawyers, judges, and jurors.

While you and many others may be able to practice jury nullification soundly, and with great forethought, remember, at least half the country is Democrats, who, by definition, have none of the analytical tools necessary to evaluate such a situation.

What about organized groups that decide to practice jury nullification on certain issues. Abortion perhaps? Illegal immigration?

What does this say regarding your support (or lack thereof) for the filibuster? Isn't that exactly the same situation? A lone senator deciding that the rest of the government is just nuts, and nullifying a law that was about to be enacted? Yes, of course, they are opposing the law for political reasons and not because they are making a stand on principal.

So what about jury nullification that occurs because of political beliefs?

What about a travesty like the OJ trial?

Jury nullification exists within our legal system already. It is called appeal.

The above hissed in response by: Big D [TypeKey Profile Page] at August 29, 2006 9:19 AM

The following hissed in response by: k2aggie07

Big D,

Like most things, the problem isn't in the action, its the application. Jury nullification is a necessary precaution against injustice. The fact that people can abuse this power is irrelevant. I'm sure you can come up with a plethora of freedoms that people abuse (which are then summarily removed or limited) so I won't list them here.

The above hissed in response by: k2aggie07 [TypeKey Profile Page] at August 29, 2006 10:32 AM

The following hissed in response by: Dafydd ab Hugh

Big D:

"The law is an ass, a idiot." The law is not anything. It is an inanimate object. A tool for social justice. The law doesn't think. It doesn't feel.

However, people are asses and idiots. All the time. Presidents, legislators, defendants, lawyers, judges, and jurors.

Psssssst... it's a quotation, Big D. From a classic work of literature.

I just used it as a header.

And a filibuster is not the same thing as jury nullification; the latter refers to ordinary citizens refusing to acquiesce in the conviction of some other person for a crime they do not believe should be against the law -- or for the wrongful application of an otherwise legitimate law.

That has nothing to do with elected professionals, who are supposed to vote on legislation, instead using a peculiar Senate rule to stop majority-supported laws from being voted upon at all.

That said, given that such a system exists in the Senate, there are proper uses for it: for example, suppose you could muster only 41 senators to oppose the Emergency Arab Isolation and Moslem Suppression Act of 2009: I would certainly want them to filibuster that act and stop it from becoming law, because it would be dreadful if it became law.

I don't oppose the concept of a filibuster; I oppose its misuse... just as I oppose the misuse of jury nullification, for example, by black (or white) jurors who decide that no black (or white) defendant will ever be convicted by a jury they're a part of.

Just as there are times when a principled filibuster is all that stands between America and ruination, so too there are times when a principled act of jury nullification is all that stands between an innocent defendant and a travesty of justice.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 29, 2006 12:24 PM

The following hissed in response by: Big D


Sorry, but you lose me on the fine distinctions between filibusters and jury nullification. Both seem simply like the will of an unhappy minority rudely thwarting the will of the majority.

Your response is...interesting, one that I am not entirely in disagreement with. However - who decides what is proper use and misuse? Who decides that a law would be the ruination of all? Who anoints those that make such decisions? Isn't what you are proposing essentially tyranny of the minority?

I oppose the use of the filibuster and jury nullification because of the enormous and proven potential for abuse.

The proper response to something like the Emergency Arab Isolation and Muslim Suppression Act of 2009 is to vote a resounding no, and immediately begin work on repealing such a travesty of justice.

Note that you made your straw man something that most people would immediately oppose. Too easy by half. From it I take that if you like the result, you're in favor of jury nullification/filibusters, and if you don't like the result then it is being abused.

Since I agree with you on most things, I suspect your standards and mine would coincide.

But what if they didn't?

Sorry I missed the quote. Dickens I presume?

The above hissed in response by: Big D [TypeKey Profile Page] at August 29, 2006 3:36 PM

The following hissed in response by: Dafydd ab Hugh

Big D:

From it I take that if you like the result, you're in favor of jury nullification/filibusters, and if you don't like the result then it is being abused.

Why assume the worst of me?

Each person makes such decisions every day, mostly small, but sometimes big. Do you support people having the right to defend themselves with deadly force? But that is a perfect example of a "minority" -- a single individual, in this case -- taking the law into his own hands.

And there is no question but that some people abuse this right. Yet even knowing it will be abused again, we still believe the right is vital.

We rely every day upon people exercising common sense, and most of the time they do. (The fact that we notice when somebody acts a fool is proof that it's not the norm.) I demand the same from jurors considering jury nullification, just as I demand it from senators considering a filibuster.

Sometimes they disappoint me.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 29, 2006 4:02 PM

The following hissed in response by: Dick E


“Situation: the court's instructions are flagrantly against the law.”

Well, you chose a legal principle that most of us non-lawyers would agree on: In a criminal case, a defendant must be proven guilty beyond a reasonable doubt. In fact, it seems preposterous that a judge would instruct a jury as you posit. Which leads to the question: If a judge did, in fact, so charge a jury, why did he do so? Does he want the decision overturned on appeal? Doesn’t he watch “Law and Order”? Is he just stupid? I can’t think of a reason why he would give such instructions. Can you?

Maybe there in fact was a “collusion between (sic) the prosecutor, the judge, and the defense lawyer.” Is it your place as a juror to determine that such collusion exists? Maybe they all agreed that the guy’s guilty, but he has a problem copping a plea, and there are some jurors who they think are sympathetic with the defendant. So they all agree that the judge will give bogus jury instructions to ensure a conviction.

(Yeah, I know, it’s ridiculous. But no more so than assuming a judge would charge a jury to find a criminal defendant guilty based on a preponderance of the evidence.)

The problem with your logic is that jurors are not supposed to be legal scholars -- not even experts on the Bill of Rights. That’s the job of the judge and the advocates.

Suppose the case didn’t involve a seemingly flagrant violation of common jurisprudential practice, but a more obscure legal principle. It could be something about which you are an expert -- maybe because you have personal knowledge about similar cases. You’ve even discussed the issues with lawyers. So when the judge explains the legal principles involved, you know he is wrong.

But what if it isn’t the judge who is wrong , but you. What if there are certain legal niceties that make the case at trial different from the cases you know about. The judge, of course, doesn’t explain the distinctions for you, because (s)he doesn’t know you have prior knowledge about a similar legal principle.

If you believe your legal knowledge to be superior to the judge’s, you are wrong. Hey, even if you’re right, you’re wrong, because it’s not your place to decide which laws are at issue. Again, that’s what judges, advocates and appellate courts do. Not juries.

It’s late (in my time zone). I’m tired. (And I have a tee time in the A.M.) So I’ll just say that I agree in principle with your “slippery slope” argument. Your “unjust law” example is so farfetched in today’s world that it needs no comment -- for laws that are not quite so ludicrous, I hope jurors don’t substitute their own judgment for that of the judge, advocates and legislative system. Your “just law applied unjustly” example is harder to fault, but if such a case really made it to trial, there is probably something else going on that isn’t being aired in the courtroom -- that’s not an argument, just an observation.

The above hissed in response by: Dick E [TypeKey Profile Page] at August 29, 2006 10:39 PM

The following hissed in response by: Dafydd ab Hugh

Dick E:

Hm, perhaps you're right, Dick E: we should leave moral judgments up to the experts.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 30, 2006 12:11 AM

The following hissed in response by: Big D

Okay, Dick E. is smarter than me, but I don't see much diference in the points we were making.

Therefore I've decided that jury nullification is fine, as long as I am the only person who ever practices it.

I've also decided that the only sane and rational form of government is an absolute tyranny run by me. Everything else is just a poor compromise.

Big Lizard can fill in for me on holidays and during the NBA finals.

As I have said, so shall it be done!

The above hissed in response by: Big D [TypeKey Profile Page] at August 30, 2006 9:25 AM

The following hissed in response by: Dick E

No, Dafydd. Moral judgments are up to the jury. A juror thinking (s)he knows the law better than the judge and the advocates is acting out of nothing but hubris.

Juries are perfectly free to decide that the behavior at issue doesn't rise to the level of a crime, or that there are extenuating circumstances, or for some other reason the defendant shouldn't be convicted. Those are findings of fact and may also be moral judgments.

It's the legal judgments (i.e. deciding which laws are at issue) that are up to the experts.

If a jury (or a juror) think they know the legal issues governing a case better than the judge and the advocates, they have absolutely no business acting on the supposed knowledge. And they most assuredly do not have a moral duty to so act. (Remember, we’re not talking about the case where you just disagree with the law. That’s the “unjust law” scenario, and a whole other kettle of crustaceans.)

Jury instructions are reviewed in advance by the prosecution and the defense. Even so, sometimes the instructions are legally flawed, and therefore grounds for appeal. But how can you, as a juror, substitute your own non-expert judgment for the combined opinions of the judge, prosecutor and defense attorney?

After all, what are the consequences to the defendant and for society if you are wrong? For one thing, an innocent person may be convicted and could find it impossible to win on appeal, because the jury was assumed to have followed the judge’s instructions. The appeals court would naturally assume the jury convicted based on factual, not legal, matters. Another possibility is that a guilty person may be acquitted; of course, there is no remedy for this.

The odds that a rogue jury is right on the law and the court wrong are minuscule, and the consequences if the jury is wrong are too great.

(By the by, your treatise posits court instructions that are “flagrantly against the law.” I challenge you to come up with an example, preferably a real one, that meets this definition; a hypothetical one would be OK, but only if it could actually occur in a world other than Lizardland. “Flagrantly” is presumed to mean that the instructions’ impropriety would be obvious to many non-lawyers. And remember, the judge, prosecution and defense have all reviewed and stated their objections, if any, to these instructions that are “flagrantly against the law.”)

The above hissed in response by: Dick E [TypeKey Profile Page] at August 30, 2006 11:04 PM

The following hissed in response by: Dafydd ab Hugh

Dick E:

But how can you, as a juror, substitute your own non-expert judgment for the combined opinions of the judge, prosecutor and defense attorney?

There's your problem on a nutshell.

Is there any level or branch of government about which you could not make the same objection to mere mortals involving themselves?


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at August 31, 2006 12:40 AM

The following hissed in response by: Dick E


“Is there any level or branch of government about which you could not make the same objection to mere mortals involving themselves?”

Absolutely not.

There’s your problem in a nutshell.

If ever I would want to “involve myself” with a branch of government, I would be free, if I were so inclined, to fully educate myself on the questions with which I wished to be “involved.” That is not what happens in a jury trial.

Jurors are specifically proscribed from researching legal issues during a trial. Some jurors might even bring legal knowledge to the jury box, but they are admonished not to use it. This, I would submit, is a good thing.

Defendants have a right to know the standards (i.e. the laws) by which they are being judged; the prosecution has the same right. If a barroom (or even a bar member) lawyer on the jury decides that the jury instructions don’t properly state the legal issues of the case, and if the jury uses the alternate legal theory in its deliberations, their decision is, by definition, unfair and improper.

Besides, it is impossible for a juror to be sure of the law without access to research materials. A little knowledge of the law is, most assuredly, a dangerous thing.

I don’t know how it is with mathematics, but in my chosen field of endeavor, accounting (from which I have been happily divorced, lo these many years), if a significant accounting or tax question arose, and I was at all unsure that I knew the correct answer, I always consulted the authoritative rules and/or laws.

That’s one of the most important things lawyers and accountants are trained to do: Know when they don’t know the answer, and then know how to research it. Jurors have neither the training nor the resources to do this. All they can bring to the courtroom is an ill-founded confidence that they know the law better than the experts provided to give them guidance.

And no, the experts are not always right. Sometimes the innocent are convicted -- that’s what appeals are for. Sometimes the guilty are acquitted -- that’s the price we knowingly pay for being perhaps overly protective of the rights of defendants.

But a juror attempting to practice law in the jury room is always wrong.

The above hissed in response by: Dick E [TypeKey Profile Page] at August 31, 2006 5:17 PM

The following hissed in response by: Dick E

And another thing: Court proceedings are different from other "level[s] or branch[es] of government". Participants are not free to exercise all rights of citizenship during a trial.

Free speech, for example. The judge is not allowed to express an opinion about the defendant’s guilt or innocence. The defense can’t acknowledge their client’s guilt. Nobody can call the judge “Joe” or “Sally” -- it’s “Your Honor.” Witnesses are not allowed to lie. And the jury and spectators must sit mute.

Or freedom of the press. Cameras and recording devices are usually prohibited.

One can debate the necessity for these restrictions, but the rationale is to protect the rights of the accused.

The above hissed in response by: Dick E [TypeKey Profile Page] at August 31, 2006 5:35 PM

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