Jury Nullification

[sumpnz]

This is not necessarily gun related per se, but I was curious about how all of you understand the concept of jury nullification. In particular, where is the justification for jury nullification, and the circumstances under which it can legitimately be used. I have just re-read the Constitution and all amendments and find no mention of it anywhere, including Article III.

Also, how can a jury's nullification of a law be challenged, and if it is successfully reversed later by the courts/Congress/etc, can the person(s) who's trial was the venue of the nullification be subject to re-trial.

Thanks for all input.

 

[another okie]

Nullification is common law (tradition).
An acquitted person may not be retried, though if another sovereign has jurisdiction, they may give it a try, too. State, federal, tribal, etc.
An acquittal may be not appealed, though rulings made during the trial may.

 

[sumpnz]

OK, say I'm on a jury. The guy (or gal) on trial is obviously guilty of violating law x. But we, the jury, decide that law x is unconstitutional/illegal/ect. Do we simply vote "not-guilty" or do we say "not-guilty by reason of jury nullification" (or some other phrase to that effect).

After the trial, what happens to the law? Is it repealed by our action, or is it left up to future prosecutors or juries to continue the tradition?

 

[Stickjockey]

As I understand it, if a jury uses Nullification and acquits, it doesn't necessarily repeal the law. However, it does provide precedent that can be used in future cases to make it easier for other juries to acquit for the same "offense".

 

[geekWithA.45]

This is not necessarily gun related per se,

Oh, it is SO gun related.

Bernie Getz' jurors determined he was defending himself in about 5 minutes, and spent the next 4 days trying to get him off the gun charge. If they had only known they had the power all along, it would have been a lot different for him.

Prohibition was repealed because "activist juries" basically wouldn't convict.

The way you do it is stick to your guns and never vote guilty. If you mention "jury nullification", you are likely to bring down judicial wrath, so it's best to play it cool. There's also problems related to discussing the right with other jurors....you have no idea how ticked off I am about this.


There's a whole lot that goes on here, check out http://www.fija.org, make sure to read the juror's handbook: http://www.caught.net/juror.htm

Recent blogpost re: jury nullification: http://geekwitha45.blogspot.com/2004_02_08_geekwitha45_archive.html#107651130339036513


The thing that really kills me is that I first learned about it in PUBLIC GRADE SCHOOL HISTORY CLASS. Fat chance of ever seeing that again.

 

[BowStreetRunner]

juries dont comment on the constitutionality of laws
they can certainly acquit if they dont like the law (although geek's blog makes a case, [haha ] for why that is rare
judges can even reverse jury decisions in a Judgement Notwithstanding the Verdict (makes sense huh.......so jury we are going to need you to sit hear and listen for a week and give us a decision but then we are going to reverse it OK?).....but ive never heard of one in a criminal case
BSR

 

[geekWithA.45]

BowStreet: I'm not a lawyer (and sometimes, I wish I was), but I'm under the impression that " Judgement Notwithstanding the Verdict" can only be applied to civil cases, or in criminal cases, to declare not guilty someone the jury finds guilty.

I spent a lot of time looking for examples of cases where a judge could declare "guilty" someone the jury finds "not guilty", and came up dry.

As far as I can tell, a criminal jury verdict of "not guilty" is unreviewable by any power on earth.

 

[Pendragon]

* only in the US.

In some countries, when they don't get the "right" verdict, they try you again

 

[M1911Owner]

In State of Georgia vs. Brailsford, et. al., 3 US 1, Chief Justice John Jay gave the following instruction to the jury:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay the respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.

I note that Justice Jay refers to this as "the good old rule", meaning that it had already been around for a long time by then, the early 1790's. My take on this, from intuition rather than from references, is that this dates back to the Magna Carta. That the reason that you are to be judged by a jury of your peers is, in part, so that your peers can nullify abusive laws.

As I understand it, jury nullification continues to be the law today. Although, there was a Supreme Court decision in around the 1890's that said that it's OK for the judge to lie to the jury and tell them that they're not allowed to nullify the law, but, the jury still has that right. And judges in California do routinely lie and tell you that you don't have that right.

 

[Jim March]

If you're on a jury and it seems right to do this, don't ever SAY you're doing nullification, just flat-out say "not guilty". Don't discuss the reasons.

Trust me on this.

 

[Bill Hook]

We trust you but would you explain further what the outcome of announcing "jury nullification" would be? Contempt charges? Mistrial?

 

[S_O_Laban]

Jim, are you saying simply voting not guilty when it's obvious the accused is guilty of breaking an unconstitutional law is jury nullification? So far this thread hasn't cleared it up for me.

 

[seeker_two]

judges can even reverse jury decisions in a Judgement Notwithstanding the Verdict (makes sense huh.......so jury we are going to need you to sit hear and listen for a week and give us a decision but then we are going to reverse it OK?).....but ive never heard of one in a criminal case

Ask the Waco Branch Davidian survivors about reversing a "Not Guilty" verdict...

you, Walker Smith...

 

[HankB]

My non-lawyer's understanding:

In theory, one holdout juror can "hang" a jury and cause a mistrial. The prosecutors may drop charges, or if there's politics at work, re-try the case with a new jury.

What I've heard happening on occasion is that if one juror out of 12 votes "Not Guilty" and sticks to it, the judge replaces him on some pretext with one of the alternates and orders the jury to start deliberations all over. So our laws don't require a unanimous verdict any more, but effectively best 12 of 13 . . . or best 12 of 14 . . . or whatever.

Also, though jurors have the right and the power to judge not only the defendant's guilt or innocence, but also to judge the law and its application in the particular case before them . . . in most states, nothing requires the judge to inform them of this.

 

[TallPine]

the circumstances under which it can legitimately be used.

Any circumstances subject to a jurors judgement and good faith.

THAT is why we have juries, to avoid tyranny.

But when the jury rolls over and agrees to become party to the tyranny, then there is no (peaceful) recourse.

 

[sumpnz]

This has been most illuminating. Please keep the comments coming, as I hope getting this subject on more people's radar will only help us to keep govt abuses in check.

 

[Molon Labe]

There is a common law belief that a jury has a duty to do two things:

1. Judge the law.
2. Judge the defendant.

#1 is performed first. If it is agreed the law is constitutional, fair, moral, just, etc. the jury moves on to #2.

 

[Higgins]

Just to add my two cents:

Maybe a useful "explanation" of jury nullification would be as follows:

The facts presented clearly fit into the law/offense being prosecuted. That is, there is no doubt about what the defendant did and there is no doubt that the defendant's actions satisfy the definition of the crime.

However, despite these two elements being present, the jury still refuses to convict. Such a refusal to convict can have many premises, some noble, some not so noble.

One noble basis is the jury's belief that the law being prosecuted is unconstitutional, unfair, unjust. This has been mentioned. A less noble motivation might be, for example, racial bias - one way or the other. There have been egregious instances in the past where all white juries refused to convict a white defendant simply because the defendant was white and the victim was not.

The basic idea is that everything needed to legitimately find a defendant guilty is present, but the jury refuses to convict, for whatever reason. This is different from the jury not convicting because in its function as a fact finder it finds certain necessary facts not proven or not within the offense being prosecuted.

Some legal academics/scholars/jurists would argue - probably the prevailing view - that the jury's province is strictly limited to being the determiner of fact and the jury has no legitimate role ignoring or deciding whether to follow the law. The point being that law making is left to the elected representatives of the people as a whole and should not be thwarted by the whim of 12 jurors. The counterpont, the anti-majoritarian argument, is that just because a majority approves a law doesn't make it just. The bill of rights is a prominent testament to the potential abuses of a majority government. A jury's right to nullify a particular law is a protection akin to the bill of rights and serves a legitimate function. Problems is, there is no way to be certain of or contain a jury's nullification to a legitimate basis, i.e. unjust laws, rather than on less desirable basis, e.g. skin color or religious beliefs.

Nullification is a dirty word in courthouses. Legal cases are carefully conducted and structured affairs, akin to incredibly complicated and detailed plays. Attorneys, judges, and lawmakers don't like the notion of a jury throwing a wrench into the whole matter by simply doing what they feel to be right. Doing so essentially renders all of the laws, rules, procedures, processes and hard work of lawmakers, judges and attorneys for nought. (Imagine the consternation of a coach, owner, and fans whose punter decides to try running for a first down on fourth-and-thirty instead of punting from his own endzone, just because the punter thought it was the right thing to do).

Woa to a juror who openly tells the court nullification is on the table. And, gasp, pray for the attorney who argues to the jury nullification on closing argument.

 

[Coltdriver]

Jury nullification is inferred by the ability of the jury to find the defendant not guilty regardless of what conclusion any other person may come to.

The reason the founding fathers included a jury is as a last fuse between a corrupt government and the man on the street.

There is no legal recourse against a jury by a judge or anyone else.

There are many legal people, judges and prosecutors, that will attempt to instruct a jury to follow the law and will insist that they must conclude what others would conclude. But there is no legal requirement for a jury to do anything except to follow their conscience.

 

[Jim March]

OK, I was in a hurry last night.

Sorry.

Here's the real scoop: jury nullification is still part and parcel of US law. Always has been - jury nullification was set in stone in English law during the William Penn case, a trial as well-known to our founders as the Brown vs. Board of Education case beginning the modern civil right movement is to us. Esp. since Penn later went on to found the colony of Pennsylvania.

That's why the founders didn't lay it out specifically - they took it as an absolute given.

Big mistake.

In recent years, the courts have been trying to destroy it. One common trick is that during the jury's selection process, questions WILL be asked to the effect of "do you promise to follow the court's instructions, and the law?".

So here's what happens in the jury room...or rather, here are the two ways this can go blewie:

1) You're in there on a classic self defense case, guy on trial is 100% clean BUT he broke some draconian piece of crap gun possession law. You want to set him free, you've got 11 idiot sheeple want to bust him. You say "hell with the law, it's a bad law, I ain't voting guilty". The other 11 can go to the judge and say you're refusing to deliberate. You're off, alternate is on, he's popped.

2) Same scenario, but worse: the judge holds you in contempt for not honoring your pledge to "follow the law". Never mind that the "pledge" is illegal. THIS HAS HAPPENED, folks. Ain't common, and the last time I recall this happening (Colorado pot case I think?) the public uproar got the lady juror out of the pokey in short order. But you better realize this risk. The questions about "can you follow the law?" are designed to screen out those folks who know about nullification! They want such people to object, or talk about FIJA or Penn or whatever, and get chucked out of there pronto.

Therefore, someone very committed to freedom must basically lie to get on the jury, and then lie to STAY on - make up some other concern about the case and stick with it until the rest go away if necessary. A better way is to read "what the jury really wants to do" and if they WANT to nullify (very common in, say, medical pot cases), go ahead and preach the gospel of William Penn, of how nullification helped end slavery, of what a jury really CAN do and hope at least 50% go along. 'Cuz if they suddenly look at you like you're from Mars, oops....better have those arguments down TIGHT amigos, 'cuz those 11 can go to the judge and have you jailed.

*I* am sneaky enough and articulate enough to pull this off, and I fully intend to if given the right case.

YMMV.

 

[lee n. field]

One common trick is that during the jury's selection process, questions WILL be asked to the effect of "do you promise to follow the court's instructions, and the law?".

During jury selection in Illinois, you are asked if you have ay philosophical or religious objections to following the instructions of the court.

 

[braindead0]

During jury selection in Illinois, you are asked if you have ay philosophical or religious objections to following the instructions of the court.

How could anyone not answer that question "I have no objections to any lawful instructions of the court"? Otherwise you are saying you'll do anything the judge tells you...

 

[geekWithA.45]

How could anyone not answer that question "I have no objections to any lawful instructions of the court"? Otherwise you are saying you'll do anything the judge tells you...

It's more like:

"If you do not accept the proposition that the juror determines the facts of the case, and the court determines the law, raise your hand".

Judges are lawyers, and they're specially trained in WeaselSpeak, so don't think they won't notice and that you'll get by on stealth....

 

[Jim March]

YUP! That question is exactly the type of "FIJA screening question" you can expect, or any of countless variations.

Object in ANY way, shape or form, and you're outta there.

 

[Waitone]

So if I were to wear a tee shirt that says, "Ask me about jury nullification" chances are pretty good I'll be excused from the jury?