
Jurors Need to Know That They Can Say No - ddlatham
http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html
======
cynicalkane
Jury nullification is typically portrayed as a defense against unjust laws,
and some judicial thinkers see it that way.

But it's important to point out the dominant view and the current view of
jurisprudence views jury nullification as kind of an unfortunate edge case.
Here's the Fourth Circuit from 1969:

"We recognize, as appellants urge, the undisputed power of the jury to acquit,
even if its verdict is contrary to the law as given by the judge, and contrary
to the evidence. This is a power that must exist as long as we adhere to the
general verdict in criminal cases, for the courts cannot search the minds of
the jurors to find the basis upon which they judge. If the jury feels that the
law under which the defendant is accused, is unjust, or that exigent
circumstances justified the actions of the accused, or for any reason which
appeals to their logic or passion, the jury has the power to acquit, and the
courts must abide by that decision."

In other words, jury nullification is not a defense against injustice, but a
side effect of having trials by an independent jury of ordinary citizens.

~~~
JoshTriplett
In the opinion of a court, which would rather not recognize the concept at
all. Courts hold a dim opinion of jury nullification, going so far as to
legally sanction mentions of it in a courtroom, and to provide "instructions"
to the jury that try to expressly prohibit them from considering anything
other than whether the facts of the case meet the law as explained to them.
Even hinting that you might understand the concept will get you thrown off a
jury. In some cases, bringing up the concept during jury deliberations will
result in a mistrial.

Personally, I like the way the state of Oregon handles the issue. Quoting the
Oregon constitution, article I, section 16: "In all criminal cases whatever,
the jury shall have the right to determine the law, and the facts under the
direction of the Court as to the law, and the right of new trial". That said,
I don't know whether in practice Oregon courts do any better about not
censuring jury nullification.

~~~
Joakal
Sounds like it's grounds for mistrial because the judges are giving incorrect
legal advice, unless the appeal process judges don't like it too.

Why can't the judges ask politicians repeal the relevant laws instead of
causing mistrials?

~~~
jbooth
It's a mistrial because you're telling the judge he's not important. Of course
judges don't like that, they worked their whole life to be a judge, and some
jamoke without a law degree shows up talking about jury nullification. That's
why you see censures and mistrials.

------
tzs
Suppose just 5% of the potential jurors believe, say, that it should not be
illegal to kill an abortion doctor, or to beat up someone who dares to be
homosexual in public, or to beat up someone who dares to flirt with a white
woman while being black, and so on.

If you have a jury of 12 and require a unanimous verdict for conviction, then
46% of randomly chosen juries will not convict people for the aforementioned
crimes no matter what the evidence, because they will include at least one
person who believes those acts should not be criminal.

That spits in the face of the notion of equal justice for all. You and I
commit a crime together, but have separate trials. The evidence is the same
for both of us, but one of us is convicted and one not, because one of us
happened to get one of those 5% who thinks stomping blacks or gays who get out
line is OK.

Ugh.

Another big problem is that once you tell jurors they can ignore the law in
order to acquit, they will figure out they can also ignore the law in order to
convict. Bogus convictions won't be as frequent as bogus acquittals, but there
will be some. (And you can't count on the judge throwing out the conviction in
those cases, because the judge won't be able to distinguish those convictions
from those where the jury simply believed the prosecution's evidence and
witnesses over the defendant's evidence and witnesses).

Our system is designed around checks and balances. How do you provide checks
and balances for the nullification power? The only one that anyone has been
able to come up with is to not tell the jury about it. That way, it only gets
used in cases where some juror recognizes that not only would there be an
injustice in applying the law to the case at hand, but that there has been a
breakdown of the system making it so that this injustice will not be addressed
elsewhere, so that the juror decides that even though he has sworn to uphold
the law, he must break that oath.

Nullification is almost never appropriate for a marijuana case. Even though I
think marijuana should be legal, and I know all about nullification, I would
never use it there at this time, simply because the system has NOT broken down
in this area. Want to stop people from getting convicted of marijuana crimes?
Then elect legislators who will decriminalize marijuana.

~~~
JoshTriplett
I strongly disagree. Every juror should understand that they have a
responsibility to consider the law, not just the facts. In most trials, that
consideration will amount to "Yup, the law seems fine", with no further
thought required. However, I believe that consideration ought to happen in
every single trial, with every single juror. No reasonable doubt should exist
that the law remains just and appropriate.

If that means we get a few more "not guilty" verdicts than we should, so be
it. We make the same tradeoff with "innocent until proven guilty" and "beyond
a reasonable doubt": better to let guilty people free than convict innocent
people. The difference: we need "beyond a reasonable doubt" applied to laws,
not just to people.

~~~
tzs
We already have a system to make sure laws remain appropriate: it is called an
elected legislature.

They system you are suggesting would in effect turn every trial into a little
election on what the law should be, but with only a small fraction of the
electorate voting, and the results only applying to that one case.

~~~
JoshTriplett
Checks and balances considered useful. I always want the option to exist, even
though people won't need it in most cases.

And also, every case adds to the case history; it doesn't take many cases to
create a pattern. So no, the results don't only apply to that one case. And
even if they do, a single instance of well-applied nullification might not
mean much to the general public, but it means the world to the defendant.

------
dreeves
Ooh, I got kicked off a grand jury a couple years ago for telling my fellow
jurors about jury nullification. I pointed them to this etherpad --
<http://padm.us/jury> \-- where I was researching the question. I wasn't even
sure at the time what the right answer was.

I'm now very much pro-nullification.

~~~
naner
_I pointed them to this etherpad [...] where I was researching the question. I
wasn't even sure at the time what the right answer was._

Was this after you were selected to serve on the jury? They usually make it
pretty clear that you are not permitted to do outside research on the case or
the laws in question.

Also if jury nullification is important to the defendant's case then it would
be the job of their attorney to make sure the jury is aware of that choice.

~~~
Natsu
> Also if jury nullification is important to the defendant's case then it
> would be the job of their attorney to make sure the jury is aware of that
> choice.

They're not allowed to inform you in most states, as I understand it. I think,
however, that there are one or two states which are exceptions in that regard
and say something about jurors having the final say in their jury
instructions, but it's been quite a while since I've read up on this.

------
squozzer
I would suggest to anyone interested in the topic to read The Trial of John
Peter Zenger. It represents an extreme case of judicial process manipulation
that would have been very difficult to defeat without the help of a
sympathetic jury.

As the Joe Fridays of the world are very eager to point out, nullification
DOES subvert the rule of law. So I don't support its' use for every situation.
But bad laws and rigged justice also undermine the rule of law -- we still
have bad laws (drug offenses, generally) and rigged justice (the Duke lacrosse
team case, more of an attempt at rigged justice) even today.

That said, nullification is not that powerful of a threat to the system,
because the system has ways of dealing with partiality such as voir dire,
change of venue, rules of evidence.

The lengths NY state is going to silence free speech and enforce the "blinders
of fact" principle seem a little extreme.

Just remember -- the law is meant to serve the people, not the other way
around.

~~~
scarmig
The big issue I see with nullification is that, once you grant it is justified
unjust laws, you make it so that any law can be nullified in a given case,
depending on the particular jury selected.

Good! you might say. But now imagine you're in the rural South, trying a case
of what was effectively a lynching. If you say that jurors can ignore the
facts of the case and the law, no matter how much evidence you offer that a
particular person is a murderer, they can ignore it for white supremacy.

This is on top of issues about fairness and equal application of the law.
Whether and how much you're punished would vary even more depending on the
makeup of the jury, even if the crime is the exact same.

~~~
randallsquared
Either position will produce at least some viscerally unpleasant situations.
<http://en.wikipedia.org/wiki/Hard_cases_make_bad_law>

------
impendia
I served as a juror on a ten week murder trial, and one thing I learned (to my
extreme exasperation) is that you can't ask questions. I mean, you can ask,
but every time I asked anything the judge gave some roundabout non-answer, and
it was obvious that she was required to do so.

In particular, the verdict hinged on some technicalities, and we got about 40
pages explaining the law. I attempted to clarify the exact meaning, but in the
end eleven others and I were forced to decide for ourselves.

~~~
MPSimmons
I've wondered before why, after the prosecution and defense lawyers are done
with a witness, the jury can't also question the witness. Can anyone help me
understand why that's not allowed?

~~~
mukyu
<http://en.wikipedia.org/wiki/Adversarial_system>

<http://en.wikipedia.org/wiki/Inquisitorial_system>

------
unoti
When the shabby old man is put on trial for jury tampering, shouldn't a jury
of his peers find him not guilty? The deliberation on that trial could be very
interesting. Or very difficult because the judge won't let the defendant's
counsel say anything. Or both.

~~~
andylei
> shouldn't a jury of his peers find him not guilty

that depends on whether or not he is guilty of jury tampering. wikipedia says
that it is "attempting to influence the composition and/or decisions of a jury
during the course of a trial". i don't have all the details, but it sounds
kind of like that's exactly what that guy is trying to do.

~~~
jrockway
The author of this article is doing the same thing. The law should be worded
so as to refer to a specific juror and a specific trial. If I call Juror #5 at
home and tell him I'll kill his family if he convicts, that's jury tampering.
If I'm a writer handing out a leaflet about the history of jury nullification,
then that's free speech. Even if I do it near a courthouse.

The courts have ruled that free speech should be limited in some cases, but
yelling "fire" in a crowded theater and educating fellow citizens about our
legal system are pretty different cases, even if the second one could
influence the results of a trial.

------
patrickgzill
Chief Justice Oliver Wendell Holmes, Jr.: "The jury has the power to bring a
verdict in the teeth of both the law and the facts."

John Jay (first Chief Justice): "The jury has a right to judge both the law as
well as the fact in controversy."

Justice Byron White: "Those who wrote our constitutions knew from history and
experience that it was necessary to protect against unfounded criminal charges
brought to eliminate enemies and against judges too responsive to the voice of
higher authority."

Thought these quotes should be in here ...

------
colanderman
_"Last year, Montana prosecutors were forced to offer a defendant in a
marijuana case a favorable plea bargain after so many potential jurors said
they would nullify that the judge didn’t think he could find enough jurors to
hear the case."_

I don't get it; jurors are selected based on _how they claim will decide_?
That's all kinds of messed up.

~~~
mindcrime
It probably varies by state (or not), but the last time I was on a jury, the
jury selection process went like this:

1\. 12 jurors are seated.

2\. the prosecution asks questions of the jurors, either as a group (eg,
"raise your hand if X") or individually.

3\. the defense does the same thing

4\. the prosecution can excuse any jurors they think are not suited for the
case

5\. the defense can do likewise

6\. If less than 12 jurors remain, enough new ones are seated to bring the
number back to 12, and the process repeats

And the questions the prosecution asks are often framed like "Is there any
reason you would fundamentally be unable to return a 'guilty' verdict in this
case?" or "is X a reason you would not be able to return a 'guilty' verdict?"
etc.

At which point, an honest person who believes jury nullification would apply
here, would have to say "Yes, I would refuse to vote guilty in this case
because I think the law is wrong" or whatever. Of course if you do that,
you're basically asking to be excused.

In my case, they never used the phrase "jury nullification" in the selection
process, but they asked questions that roughly corresponded to asking about
that.

Also, I'm not sure if there is a limit to how many jurors each side can
excuse. In the case where I served, quite a few jurors were excused by one
side or the other, but we didn't come close to exhausting the pool of
candidates (which was, I believe, somewhere between 50-60 people).

~~~
andrewla
I was called up for jury selection in Manhattan, and this was my experience.
They asked if anyone had a problem with the law in question (it was a drug
case) and then asked if I would be able to return a guilty verdict.

I was not paneled on the jury. In my case, a large number (>100) jurors were
dismissed for what did not appear to be any reason, so it may have been
something else I said or something I wrote on the questionnaire they gave us.
I was also surprised by the number of dismissed jurors, since I was led to
believe (mostly, I think, by Law & Order) that there was a limit on the
peremptory dismissals.

On the elevator on the way out, other dismissed jurors congratulated my on a
novel way to avoid jury duty. This annoyed me, since I would have really liked
to have been on that jury. Although I agree with the article that juries
should have more powerful, I don't see how a believer in nullification can get
on a jury without lying.

~~~
JoshTriplett
> I don't see how a believer in nullification can get on a jury without lying.

If you're going into a case knowing you'll say "guilty" or "not guilty"
without actually hearing the facts of the case, you _should_ get kicked off
the jury, independent of your belief in jury nullification. If you plan to
decide based on both the law and the facts of the case, you should listen very
carefully to the questions asked, to ensure that your boolean answers remain
truthful.

Question: "Do you have a problem with the law in question?" Unspoken answer:
"Depends on the facts of the case." Boolean answer: "No."

Question: "Would you be able to return a guilty verdict?" Unspoken answer:
"Yes, I have the ability to do so, and in general a belief in jury
nullification means I want to decide based on the facts of the case as well as
the law, which the constitution of my state specifically gives juries the
power to do." Boolean answer: "Yes."

~~~
andrewla
If I had thought it through, I might have been able to offer white lies to
cover the questions they asked. As it was, they didn't ask me anything so nice
as "do you have a problem with the law in question"; they asked several
questions related to that, including "do you have any feelings about drug
legalization".

They didn't just ask if I could return a guilty verdict, either -- they asked
if I would return a guilty verdict based on the law as explained by the judge
if I felt that the facts supported the verdict. To be honest, I did answer yes
to this one, although I did feel a twinge and my hesitation was palpable.

As for not knowing whether you'll say "guilty" or "not guilty", that's fair.
They did describe enough of what the charges were that I find it hard to
believe that I would convict, unless I exercised my power of "jury
expandification", which would require me to convict them of the charge
presented if I felt that they were guilty of other crimes, to make sure that
the defendant received some punishment.

~~~
JoshTriplett
> If I had thought it through, I might have been able to offer white lies to
> cover the questions they asked.

I didn't intend to suggest white lies; I consider the responses I suggested
entirely truthful, just carefully chosen. :)

> As it was, they didn't ask me anything so nice as "do you have a problem
> with the law in question"; they asked several questions related to that,
> including "do you have any feelings about drug legalization".

That could certainly make it more difficult. Depending on the wording of the
questions, you may or may not have had the ability to give a truthful answer
that would keep you on the jury. I certainly would not advocate lying.

> They didn't just ask if I could return a guilty verdict, either -- they
> asked if I would return a guilty verdict based on the law as explained by
> the judge if I felt that the facts supported the verdict. To be honest, I
> did answer yes to this one, although I did feel a twinge and my hesitation
> was palpable.

"if I felt that the facts supported the verdict" gives you all the leeway you
need to say "yes" without reservation.

------
nottwo
I kept waiting for the author to mention the Fully Informed Jury Association.
I somehow stumbled upon their website over ten years ago and first heard of
jury nullification. It's awesome they're still at it.

<http://fija.org/>

------
tvon
> _But nullification is like any other democratic power; some people may try
> to misuse it, but that does not mean it should be taken away from everyone
> else._

It has been my impression that we increasingly live in a world where rights
can be taken away from the many to deter abuse by the few.

------
Qo
I'm a little disappointed that the article doesn't mention a serious practical
impediment to nullification - the "voir dire" process of juror selection. They
ask you a series of questions, one of them usually being "Will you apply the
law as I explain it to you?" You are 100% within your rights to answer no -
they'll excuse you from the jury. If you say "yes", however, but you mean
"no", then you have committed perjury. You won't get caught if you're crafty
about it, but it's still a relevant detail. A more accurate title might have
been: "People can do whatever they want as long as they're OK going to jail if
they get caught"

~~~
ChuckMcM
I answered that I would be willing to vote guilty if the law and the facts
supported such a verdict.

This is absolutely true, and I am free to nullify (without having lied) if I
find the law doesn't support such a verdict.

I'm wondering though what happened to the guy in NY (came to the comments here
hoping someone had tracked that down). He was arraigned in Feb of this year.

~~~
Qo
Interesting. I'm not a lawyer, but doesn't the fact that the law doesn't
support a certain verdict obviate the need for nullification?

------
wkral
Does anyone know if there is a similar law about jury nullification in Canada?

I hear about a lot of these little known facts about the law but they're
usually US centric.

------
estevez
This article makes me want to take a trip to Kinkos.

------
ChuckMcM
Some better followup on the case so far:
[http://www.economist.com/blogs/democracyinamerica/2011/11/fr...](http://www.economist.com/blogs/democracyinamerica/2011/11/free-
speech-and-jury-nullification)

------
_corbett
my high school american studies teacher would recommend stating "I firmly
believe in the right of jury nullification" to get out of jury duty–he was of
the opinion that jurors who voiced their awareness of this right were almost
never selected. I'd be curious to know if this was actually true

------
coolestuk
In Britain jurors can ask questions of witnesses and the accused. At the end
of a trial day, the judge will ask if the jury has any questions. When I was
on a 3 week trial, I had a page-full of questions every day. I identified
issues that both the judge and prosecuting counsel missed.

------
brohee
[http://www.economist.com/blogs/democracyinamerica/2011/11/fr...](http://www.economist.com/blogs/democracyinamerica/2011/11/free-
speech-and-jury-nullification) on the same subject. I did post it here at the
time but it didn't pick up steam...

------
anamax
Every objection to jury nullification also applies to prosecutorial discretion
yet none of the folks objecting to JN object to PD.

------
tsotha
I understand why people wouldn't want to be part of the system that punishes
people for something the juror doesn't think should be illegal. But it isn't
your job, as a juror, to write the laws. The honorable thing to do is to
answer truthfully when they ask you if you can apply the law in the case
you've been assigned.

Having said that, let me say I think prosecuting a guy for handing out
nullification leaflets is a gross abuse of power.

~~~
sophacles
Remember, a central idea in the Constitution is a balance of power, often
called "a system of checks and balances". Much like the 2nd Amendment, the
jury system is partly about preventing the government from taking too much
power from the people. Deciding if a law was broken is part of it, true, but
there are other aspects. For example one of the reasons for the jury is to
decide if mitigating circumstances or evidence are valid enough that a
violation of the letter of the law is still acceptable. A bad or unjust law is
definitely a mitigating circumstance.

You frequently see people put behind bars or otherwise punished for absurd
violations of absurd laws, which even the members of the jury find stupid,
because they are told that their opinion of the law doesn't count, even when
the law is obviously being applied in an unfair or power grabbing way. Jury
nullification is a powerful tool against such abuse and absurdity.

Finally, look into the tenets of the common law system, upon which the US
legal system is built. It is surprisingly enlightening, and will probably piss
you off a bit at how things are currently being done (alternately, that we
having fully purged it depending on your base mindset I guess :) ).

~~~
MPSimmons
Yes. And the ultimate check on all of the other processes is the citizenry. We
elect representatives of ours to write laws, we elect representatives of ours
to execute laws, and we, through the jury process, judge those who are accused
of breaking the laws that we (through our representatives) caused to be put
into place.

In a very real way, the citizens of the jury are provided with power to
prevent injustice in the application of the laws which have been put in place
in our name.

