Monday, August 29, 2011

Jury nullification

A repost from my blog

There is an interesting movement out there called "jury nullification", which is where the jurors refuse to convict a person even if the facts and the law show that he is guilty. Perhaps the best example of this is the O.J. Simpson case where the jury felt that O.J. was wrongly being prosecuted. O.J. got away with murder despite the evidence, and unfortunately confessions which were never entered into evidence (e.g., at least the one to Rosie Greer, subsequently one to Christie Prody). It's O.K., O.J., you can admit now since they can't get you.

It is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law, as it is laid down by the court. Sparf v. United States, 15 S.Ct. 273, 282 (1895). In other words, the Jury is the trier of fact and it is the Judge who is the trier of law. The Jury is not supposed to use its own opinion of whether the law is fair or not, but whether the facts in the case are such that the law applies.

There are many problems with the concept of jury nullification, although it is a concept much favoured by the defence bar. One of which is that it turns legal certainty into a crap shoot. Jurors who will nullify are also likely to be ones who would convict based upon their capricious attitude. Additionally, I have noticed that most of the folks who like "jury nullification" also dislike "activist judges". What is the difference between these two concepts? Isn't one who would base his decision as a juror upon his like or dislike of something which is not related to the case just as bad as an activist judge? Isn’t an activist judge only one who interprets the law in a way that those who use that label dislike?

Another problem with jury nullification is that the jury system could be changed if there are too many hung juries. England already allows for non-unanimous juries, that is where a majority will find the defendant guilty.

Can't happen here? In 1972 the Supreme Court permitted non-unanimous juries for criminal cases in state courts, in approving 10-2 verdicts in Oregon courts and 9-3 verdicts in Louisiana. Abramson correctly argues that this bodes ill for the jury. "In Johnson v. Louisiana...Johnson argued that Louisiana's acceptance of a 9-3 jury verdict in his case violated his due process rights under the Fourteenth Amendment to have his guilt proved beyond a reasonable doubt. By definition, no jury could reasonably find a defendant's guilt proved beyond a reasonable doubt, he argued, when some of its members continued to harbor doubts." In Apodaca v. Oregon, 406 U.S. 404 (1972), the defendants argued that "unanimity was essential to enforcement of their Sixth Amendment right to be tried before cross-sectional juries. Only the unanimous verdict rule could guarantee effective representation to minority views; anything less empowered majorities simply to outvote minorities." Unfortunately, the Supreme Court ruled against both arguments by a narrow 5 to 4 decision.

I often wonder if those who favour jury nullification aren’t working toward the tyranny and despotism they so much decry. The problem is that there is supposed to be some form of consistency and predictability to justice, not the arbitrary chance that a jury will acquit (or convict) based upon its whims.

The forum for fighting unjust laws is the legislature, not the courts. I feel sorry for those who cannot understand that the courts only interpret and apply laws, not make them.

14 comments:

  1. I'm not sure that the OJ trial is a great example of jury nullification. I believe the jury at the time claimed that the state failed to provide sufficient evidence rather than they just refused to convict.

    Anyway, like it or not, Jury Nullification is real since a jury can always choose to acquit. Unless of course, like you said, the rules change some day.

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  2. Hey, works for me.

    But don't bitch when the criminal shows up on your doorstep.

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  3. Actually, I should add that if the judge gets any hint that a juror believes in Jury nullification, it will result in a mistrial.

    At this point, it takes a unanimous jury to acquit or convict, anything less is a mistrial.

    The problem is that if some jurors take their charges (and oath that they will follow the law) seriously, and another believes in jury nullification, the trial will end in a hung jury.

    This cost the system money since the Government has the choice of dropping the case (they usually don't), or retrying the case.

    Also, one of the voir dire questions is "have you ever been on a hung jury" which is intended to weed out people who might believe in jury nullification.

    So, you can follow the rules...

    Or you can play it the way you want.

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  4. "The problem is that if some jurors take their charges (and oath that they will follow the law) seriously, and another believes in jury nullification, the trial will end in a hung jury."

    I don't think that the belief in jury nullification will automatically equate to a hung jury. While some such jurors may refuse to convict over a law that they do not believe in, I would say that most don't believe in nullifying every law, especially laws against murder and other violent crimes.

    "Actually, I should add that if the judge gets any hint that a juror believes in Jury nullification, it will result in a mistrial."

    My attorney told me once that the best way to get out of jury duty is to claim right away during the selection process that you believe in jury nullification.

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  5. "My attorney told me once that the best way to get out of jury duty is to claim right away during the selection process that you believe in jury nullification."

    I always planned on saying that I did not see the purpose to a trial since police do not arrest innocent people. I bet that would get me off a jury :)

    I have only been called for jury duty once, but I was never selected from the pool of potential jurors to go into a court room. I was close, but they settled the case before calling us in.

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  6. No, the belief in and of itself does not result in hung juries. It is only if someone decides to violate the jury instructions while others want to follow them.

    I have posted some jury instructions since this isn't the place to post them.

    Yes, you will indeed be thrown off the jury if you say you believe in jury nullification. My experience is that the judge will also lecture you in far more depth than any of my posts.

    Jury Nullification is real since a jury can always choose to acquit

    Which is why OJ is an example of Jury Nullification which is defined as occurring in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.

    So, if you have no problems with how the OJ case turned out, you have no problems with Jury nullification.

    IF you think that there was a serious miscarriage of justice, then you need to seriously rethink your position on Jury Nullification.

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  7. Jury nullification cuts both ways. In some cases, an unjust law (think Jim Crow, Alien and Sedition Acts, WWII internment of Issei and Nissei in the U.S.) or selective/illegal prosecutions might be nullified. Unfortunately, jury nullification was much more often used during the period when black americans were trying to exercise their civil rights in the face of oppression in this country and when good, GODfearin' MurKKKin menfolk kilt their uppity wimmen for all sorts of offenses--real or imagined.

    Happily, in the case of Mr. Simpson, Jury Nullification was balanced out by Mr. Simpson's idiocy in committing strong armed robbery and leaving witnesses who testified against him.

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  8. The concerns about reverse jury nullification (sometimes called jury villification) could be addressed by honest jury instructions -- but such instructions would have to address the fact that while juries may always acquit, they cannot convict unless the evidence is sufficient. Prosecutors and most judges oppose such instructions.

    The OJ jury followed the law. The case left lots of room for reasonable doubt -- it was poorly presented, the scientific evidence was unreliable, the prosecutor was more interested in dragging out the case and looking good on camera for her future career than she was in the facts or the law.

    Juries in America certainly retain the prerogative to refuse to convict if they believe the law is unjust, is being unjustly applied, or that the Defendant has already suffered enough. That is not even controversial. The only thing that IS controversial is whether courts should instruct them upon this prerogative.

    Most of the problems people complain of having to do with the misuse of jury nullification would be alleviated with appropriate instructions (such as were routinely given in the early years of this Nation). Are juries perfect? Of course not. But they are at least as ethical, honest, and trustworthy as any of the official actors in the criminal justice system. And the Constitution gives them the final say as to whether a conviction is the right outcome in any criminal case.

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  9. Mr. Conrad wrote a book on Jury Nullification.

    Although, the definition of it is:
    Jury nullification occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.

    The OJ trial is debatable on many grounds, but ultimately, it was a case of Jury Nullification due to dislike of the LAPD.

    The problem is that Juries are charged with following the law as presented to them. So, Mr. Conrad's comments are duly noted. However, if the jury fails to follow properly given instructions due to a dislike of the law, that is wrong and against their charge.

    I am not sure if Mr. Conrad is aware of the decisions which allow for non-unanimous juries.

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  10. Mr. Conrad, are you in any way affiliated with the Cato Institute?

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  11. Laci The Dog:

    Just a little bit--

    http://www.cato.org/pub_display.php?pub_id=4625

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  12. Pssssssssssst!

    Pssssssssssst!

    Demmocommie? Laci is a lawyer; ergo, Laci was asking a question to which he already knew the answer.

    Cato Institute: the best right wing opinions that Koch Brothers and Rupert Murdoch can buy. (And by 'best' I mean 'most &/or furthest' right wing opinion.)

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  13. dog gone:

    Well, I kinda figgered that, but I was already there.

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