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.