Legal Minds weigh in- Jury Nullification

[Hiltonizer]

Jury Nullification has been a topic that has jumped on my radar recently. Given my limited ability to comprehend legalese, the research i've done seems to me ambiguous at best.

Based on what I do know, this is something that should be advocated more often, both in terms of gun rights and several other rights I consider important as a Libertarian. (non-violent drug crimes, tax "evasion", etc)

I think ground could be made against against several types of questionable laws if more people were educated to this, and freedom lovers working to get on Jury's rather than trying to avoid Jury duty.

Using firearms in self-defense being a pet example, we as activists could aid clearly well-intentioned individuals from doing time, regardless of the questionable or poorly scoped laws.

Can anyone provide insight as to whether we can/should promote this, and possibly contribute to an article that could be promoted amongst liberty activists?

 

[Bill Nance]

Here's a link you may wish to look at:

http://fija.org/

 

[Jose]

It doesn't matter what legal experts say or do.

What happens in the jury room stays in the jury room.

You can refuse to go along to convict. All.....day.....long.

 

[Boghog1]

read through the FIJA stuff I did and found it eye opening. I know if I am called to jury duty again I will utilize it if I think it is an unjust law

 

[economist]

I'm not a legal mind, but I've always thought this issue was a little too overwrought, and an attempt to get people to feel like they can buck the system while still playing by the rules. If you are on a jury you can vote any way you want on the items before you. You don't have to provide a reason for your vote. I too am fairly libertarian in my thinking and, just as a forum-relevant example, I would never vote to convict someone who was charged with illegal possession of a firearm. Whether that is OK because it's "jury nullification" or not OK as defined by some legal mind really doesn't matter to me. The law, clearly, is imperfect. There are tons of laws I consider stupid, immoral, unethical, or just ridiculous. So, what I would promote (assuming I were in the mood to promote anything) is a general distrust of politicians, government, and the law. And I would combine that with the desire to support individual liberty and property rights -- the backbone of libertarian ideas.

 

[Hiltonizer]

Here's a link you may wish to look at:

http://fija.org/

you are a gentleman and a scholar my friend.

 

[TomH]

Great topic, I'm sure you'll find there are many here who support "following the law" and will frown upon jury nullification. I believe the topic has come up before.

It doesn't matter what legal experts say or do.

What happens in the jury room stays in the jury room.

You can refuse to go along to convict. All.....day.....long.

Exactly! This is one of the reasons I cringe when people try to avoid jury duty. It is not just a "chore", jury duty is a RIGHT, or taken further an obligation to our system of law. It is your chance to make something right. You also can get the chance to put legit scumbags away, just do it through just laws. If you've ever read about people getting off easy etc and complained, and have also been relieved to "get out of" jury duty, smack yourself.

 

[Hiltonizer]

Great topic, I'm sure you'll find there are many here who support "following the law" and will frown upon jury nullification. I believe the topic has come up before.

Exactly! This is one of the reasons I cringe when people try to avoid jury duty. It is not just a "chore", jury duty is a RIGHT, or taken further an obligation to our system of law. It is your chance to make something right. You also can get the chance to put legit scumbags away, just do it through just laws. If you've ever read about people getting off easy etc and complained, and have also been relieved to "get out of" jury duty, smack yourself.

I too consider Jury Duty a right, not a chore. It's very ironic that everyone I know feels differently, and at 26 years old I have NEVER been called, though i've registered for civil service on my 18th birthday. (maybe i've been profiled by the New World Order )

I'm trying to get as much solid information together as possible, as I wish to promote this concept. I voted Libertarian at 20 years old in 2004, and have been a follower since, and only recently has Jury Nullification catch my eye. I'm willing to bet a little education campaign could go away, because voting obviously isn't working.

(note to self to bill Scott Brown for the bottle of Moet my wife and I drank when he was elected)

 

[Finalygotabeltfed]

The reasons most people shun jury duty is that they are ignorant of what it is about, they have no sense of civic duty to the society they live in AND they can't afford to or don't want to lose a day's pay or more if empanelled and or sequestered.

Jury Nullification information should be spread far and wide and practiced more often by juries, it would curtail or end many of the ridiculous, unjust cases brought against many good people.

 

[M1911]

It doesn't matter what legal experts say or do.

What happens in the jury room stays in the jury room.

You can refuse to go along to convict. All.....day.....long.

Yup. And if I find myself in that situation, I will never utter the phrase "jury nullification." Instead, I'll just dig in my heels and talk about what is the right thing to do, and that the judge can pontificate all he wants with BS legal mumbo-jumbo, but here in the jury room, I'm going to do what I believe is the right thing, and the judge and the DA can go pound sand.

 

[RKG]

read through the FIJA stuff I did and found it eye opening. I know if I am called to jury duty again I will utilize it if I think it is an unjust law

Think carefully: jury nullification is a violation of a juror's oath, and while it is true that a nullification verdict cannot be appealed by the prosecution, a juror who can be proved to have violated his oath is subject to prosecution.

"Jury nullification" as a term refers to the practical implication of the fact that a verdict of acquittal in a criminal case cannot, as a procedural matter, be appealed by the prosecution. As a result, such a verdict, even though improper as a matter of law and a violation of the jurors' oaths, stands, at least vis-a-vis the defendant in the criminal case.

However, counsel for the defendant may not advocate "nullification" (which amounts to advocating that the jury acquit even if they find as a matter of fact that the defendant is guilty on the evidence presented).

 

[n1oty]

Think carefully: jury nullification is a violation of a juror's oath, and while it is true that a nullification verdict cannot be appealed by the prosecution, a juror who can be proved to have violated his oath is subject to prosecution.

"Jury nullification" as a term refers to the practical implication of the fact that a verdict of acquittal in a criminal case cannot, as a procedural matter, be appealed by the prosecution. As a result, such a verdict, even though improper as a matter of law and a violation of the jurors' oaths, stands, at least vis-a-vis the defendant in the criminal case.

However, counsel for the defendant may not advocate "nullification" (which amounts to advocating that the jury acquit even if they find as a matter of fact that the defendant is guilty on the evidence presented).

This so-called jury nullification has been a right of jurors since the days of John Jay. It is only in recent court decisions that the courts have attempted to chip away at the power of juries. However, all of the court cases of which I am aware state that the courts still recognize the jury's power in this regard, however, they refuse to instruct said jury that they actually wield such power. I find that an odd position for the courts to hold. It is almost as if the courts hope that juries will become sufficiently ignorant as to conform specifically to their directions. That would be a truly sad day. Now, I am not advocating that every jury execute nullification. We need to protect ourselves as a society from criminal behavior. But let's be honest, there are a lot of people being railroaded in the current system and I hope that juries will continue to keep an eye out for any potential travesty of justice. Independent juries are the last line of defense in the courts.

 

[center442]

Interesting topic and some very good comments! I am a believer in jury nullification in some circumstances.

For example I would not vote to convict a person of unlawful carrying or possession of a firearm. I would have no problem voting to convict a person who actually misuses a firearm to commit a crime, but I'll be damned if I'll vote to incarcerate a person for owning a tool without a piece of paper or plastic issued by the state.

I'd also have a tough time convicting a person of violating a restraining order (209A?) without some really credible evidence that the accused really intended to cause harm to the plaintiff. I've personally seen two instances where the charges were totally bogus, and I think that the typical restraing order is used more for harassment than anything else. Not to mention that the order is totally ineffective to begin with.

Some laws are simply unjust. The ability of a jury to nullify an unjust law, even though the accused has clearly violated it, is an important part of the system of checks and balances. I wouldn't advocate it's use haphazardly, but I wouldn't be afraid to use it if the circumstances called for it.

 

[lupis42]

This so-called jury nullification has been a right of jurors since the days of John Jay.

In common law systems, it's older than that. Actually, the "not guilty" verdict came about because a Scottish Jury decided that the case against the defendant was proven, but the law was unjust. See Wikipedia's entry on "Not Proven" for more.

 

[terraformer]

It doesn't matter what legal experts say or do.

What happens in the jury room stays in the jury room.

You can refuse to go along to convict. All.....day.....long.

And the judge can remove you from the jury All.....day.....long.

If you as a juror are going to nullify, you best not tell anyone why AND have a plausible story about reasonable doubt on the evidence as your reasoning. If the judge has nothing to go on wrt nullification, they can't remove you. Also take note of what RKG mentions below.

 

[Half Cocked]

And people wonder why DA's plea cases out.........

 

[Boghog1]

So in a case back in say the 1850's even if I didn't agree with slavery if someone was caught violating the fugitive slave law I should still find that person guilty? e.g. Harriet Tubman, what about in the 1950s with Rosa Parks?

 

[Bill Nance]

And people wonder why DA's plea cases out.........

Not sane people. They plead cases out mostly to save time and not have to go to court on a 50/50 chance of conviction. The assertion that DAs plead out cases to avoid the possibility of jury nullification is a pretty extraordinary claim. Unless you can provide similarly extraordinary proof to back it up, I'm calling BS.

H/C, you know as well as anyone. No, not true you know BETTER than most of us, how insane the legal system is. How many BS laws are in place that make virtually anyone a felon if you look hard enough and how many laws we have that fly in the face of the concept of basic human liberty.

Yes, I think juries should start refusing to convict people of drug crimes. Just as I think they should refuse to convict 19 year-old kids of statutory rape for banging their 17 y/o GFs or selling dildos in Alabama. Jury nullification is really the ONLY way to get rid of these practices. Politicians can't be relied upon to do it because just enough of the population supports these non-crimes that it can push a pol over the edge to losing if those voters all vote en masse against him. Politicians don't like to lose elections.

Jury nullification is the people's check against the unbridled power of the state. It's no accident that judges don't like fully informed juries. It reduces their power. And no one in the country has the kind of near dictatorial power of a judge in the courtroom. Not even the Presidency has so much power. Nor do the people have anything remotely like the resources of the state.

Jury nullification is merely the equalizer of the people. Sometimes it's going to be misapplied. But certainly not remotely as often as people get charged with non-crimes.

 

[lupis42]

So in a case back in say the 1850's even if I didn't agree with slavery if someone was caught violating the fugitive slave law I should still find that person guilty? e.g. Harriet Tubman, what about in the 1950s with Rosa Parks?

A great many southern juries refused to convict white people of lynching black people even in the 1950s.

The long and the short of it is, juries vote how they want. Judges know it (some don't like it) and prosecutors know it, and defense attorney's know it. Depending on the state, Judges may or may not kick jurors off the bench or declare a mistrial if they suspect it. At least we don't have the old English provision, where if a judge didn't like a jury's verdict, he could have the same evidence laid before another jury and punish the first jurors if the results were different.

 

[Bill Nance]

A great many southern juries refused to convict white people of lynching black people even in the 1950s.

The long and the short of it is, juries vote how they want. Judges know it (some don't like it) and prosecutors know it, and defense attorney's know it. Depending on the state, Judges may or may not kick jurors off the bench or declare a mistrial if they suspect it. At least we don't have the old English provision, where if a judge didn't like a jury's verdict, he could have the same evidence laid before another jury and punish the first jurors if the results were different.

Try getting a jury in my home town to convict a homeowner for murder of a housebreaker or other miscreant on their property. Absent it being a pretty clear-cut case of cold-blooded murder, you can forget it. the County Attorney won't even bother to bring the charges.

It was this occurrence happening over and over again that brought about the changes to state law that are arguably the least restrictive in the country on self defense.

There's a stand your ground law in place, and you have a right to use deadly force in a huge array of scenarios.

The law allows use of deadly force in the lawful defense of oneself, a family member, or any other person, when there is reasonable ground to prevent action(s) of the person slain to commit a felony or to do injury or harm, and there is imminent danger of such design being accomplished; or in the actual resistance of an attempt to commit a felony upon the slayer, on those in their presence, or upon or in a dwelling, or other place of abode, in which they are.

Washington state doesn’t have a specific Castle Doctrine law, but has no duty to retreat as precedent was set when the State Supreme Court found "that there is no duty to retreat when a person is assaulted in a place where he or she has a right to be.

Those changes and court rulings didn't happen because of smart politicians pursuing the best public policy, they happened because they got tired of prosecuting people and having them walk left and right because no jury would convict.

 

[Eye5600]

If the DA gets a whiff that you are hostile to the law underlying the charge, you will probably be excused before the trial.

 

[blindfire]

I'm not a legal mind, but I've always thought this issue was a little too overwrought, and an attempt to get people to feel like they can buck the system while still playing by the rules. If you are on a jury you can vote any way you want on the items before you. You don't have to provide a reason for your vote. I too am fairly libertarian in my thinking and, just as a forum-relevant example, I would never vote to convict someone who was charged with illegal possession of a firearm. Whether that is OK because it's "jury nullification" or not OK as defined by some legal mind really doesn't matter to me. The law, clearly, is imperfect. There are tons of laws I consider stupid, immoral, unethical, or just ridiculous. So, what I would promote (assuming I were in the mood to promote anything) is a general distrust of politicians, government, and the law. And I would combine that with the desire to support individual liberty and property rights -- the backbone of libertarian ideas.

The one problem with using jury duty to protest a law is that guilty people can and do get off. Remember OJ?

Remember, the concept of using jury duty to protest a law is a double edged sword. It could be used to protest laws YOU consider good and others consider stupid, immoral, unethical, or just ridiculous.

By no stretch is our legal system perfect, but I think its the best in the world

 

[economist]

The one problem with using jury duty to protest a law is that guilty people can and do get off. Remember OJ?

Remember, the concept of using jury duty to protest a law is a double edged sword. It could be used to protest laws YOU consider good and others consider stupid, immoral, unethical, or just ridiculous.

By no stretch is our legal system perfect, but I think its the best in the world

I can live with that. If the worst thing we say about our system is that guilty people sometimes go free then we are doing just fine. Right now, however, the worst we can say is pretty bad. People go to jail for victimless crimes, prosecutors use their power to manipulate the process for their own political gain, and juries, too often, do what they are told. Law, even in a democracy, has no moral weight. It is a production of collective human effort and therefore will always be flawed. The only thing that keeps collective efforts like this in check is the individual willing to stand against the common, the popular, and sometimes the passionate mob. It's a short walk to a world where everyone stumbles into the town square and starts throwing stones. And blindly doing what we are told is the first step.

 

[Jose]

I'm not a legal mind, but I've always thought this issue was a little too overwrought, and an attempt to get people to feel like they can buck the system while still playing by the rules. If you are on a jury you can vote any way you want on the items before you. You don't have to provide a reason for your vote. I too am fairly libertarian in my thinking and, just as a forum-relevant example, I would never vote to convict someone who was charged with illegal possession of a firearm. Whether that is OK because it's "jury nullification" or not OK as defined by some legal mind really doesn't matter to me. The law, clearly, is imperfect. There are tons of laws I consider stupid, immoral, unethical, or just ridiculous. So, what I would promote (assuming I were in the mood to promote anything) is a general distrust of politicians, government, and the law. And I would combine that with the desire to support individual liberty and property rights -- the backbone of libertarian ideas.

Bravo!

 

[RKG]

This so-called jury nullification has been a right of jurors since the days of John Jay. It is only in recent court decisions that the courts have attempted to chip away at the power of juries. However, all of the court cases of which I am aware state that the courts still recognize the jury's power in this regard, however, they refuse to instruct said jury that they actually wield such power. I find that an odd position for the courts to hold. It is almost as if the courts hope that juries will become sufficiently ignorant as to conform specifically to their directions. That would be a truly sad day. Now, I am not advocating that every jury execute nullification. We need to protect ourselves as a society from criminal behavior. But let's be honest, there are a lot of people being railroaded in the current system and I hope that juries will continue to keep an eye out for any potential travesty of justice. Independent juries are the last line of defense in the courts.

The first bolded statement is wrong: nullification is a power of the jury (as a result of the lack of appeal of an acquittal), but it can be exercised only by the jury abdicating its legal obligation.

The second bolded statement: it should not be considered "odd" for a judge to fail to instruct a jury that they have the right to do something that they do not have the right (consistent with their sworn duty) to do.

 

[Jose]

RKG and terraformer, you are slaves of law. I am a servant of justice. Therein lies the huge difference between us and why I will never see things your way. So you may as well put me on your ignore list.

A juror's oath is a joke. It is meaningless.

I also don't GAF what the judge or prosecutor thinks about my refusal to issue the verdict the want.

Who is John Galt?

 

[RKG]

Interesting topic and some very good comments! I am a believer in jury nullification in some circumstances.

For example I would not vote to convict a person of unlawful carrying or possession of a firearm. I would have no problem voting to convict a person who actually misuses a firearm to commit a crime, but I'll be damned if I'll vote to incarcerate a person for owning a tool without a piece of paper or plastic issued by the state.

I'd also have a tough time convicting a person of violating a restraining order (209A?) without some really credible evidence that the accused really intended to cause harm to the plaintiff. I've personally seen two instances where the charges were totally bogus, and I think that the typical restraing order is used more for harassment than anything else. Not to mention that the order is totally ineffective to begin with.

Some laws are simply unjust. The ability of a jury to nullify an unjust law, even though the accused has clearly violated it, is an important part of the system of checks and balances. I wouldn't advocate it's use haphazardly, but I wouldn't be afraid to use it if the circumstances called for it.

Hypothetical:

DooWayne Jones stands indicted for violating G. L. ch. 269, sec. 10(a) (carrying a firearm while not being licensed to do so). A ripe old 18 years and two months, DooWayne has nonetheless perfected the gang swagger and the art of armed robbery, having been eighteen times arrested and twice convicted of same. (Regrettably, he received probation on his first conviction and probation and a lecture on his second conviction.) At the time of his arrest, DooWayne, an ardent member of the A Street Warriors gang, was strolling through the turf of the B Street Sweepers, a rival gang that has been at war with the Warriors for several years, which warfare has been estimated to have lead to 17 fatalities. As the police officers approached, DooWayne's three compatriots fled in one direction and got into the wind, while DooWayne took off in the other direction, flinging his fully loaded Glock over a fence into the playground of the nearby elementary school before being apprehended.

You'd "nullify" on this dude?

 

[RKG]

RKG and terraformer, you are slaves of law. I am a servant of justice. Therein lies the huge difference between us and why I will never see things your way. So you may as well put me on your ignore list.

A juror's oath is a joke. It is meaningless.

I also don't GAF what the judge or prosecutor thinks about my refusal to issue the verdict the want.

Who is John Galt?

"Justice" without a system of rules to which all agree to bide is at best meaningless and (depending upon who is doing the dispensing) a bit frightening.

 

[Jose]

a bit frightening.

To you, perhaps.

 

[ochmude]

Hypothetical:

DooWayne Jones stands indicted for violating G. L. ch. 269, sec. 10(a) (carrying a firearm while not being licensed to do so). A ripe old 18 years and two months, DooWayne has nonetheless perfected the gang swagger and the art of armed robbery, having been eighteen times arrested and twice convicted of same. (Regrettably, he received probation on his first conviction and probation and a lecture on his second conviction.) At the time of his arrest, DooWayne, an ardent member of the A Street Warriors gang, was strolling through the turf of the B Street Sweepers, a rival gang that has been at war with the Warriors for several years, which warfare has been estimated to have lead to 17 fatalities. As the police officers approached, DooWayne's three compatriots fled in one direction and got into the wind, while DooWayne took off in the other direction, flinging his fully loaded Glock over a fence into the playground of the nearby elementary school before being apprehended.

You'd "nullify" on this dude?

I wouldn't, but that's luxury enjoyed by individuals who are empaneled on a jury. They are able to make judgments on the validity and application of laws on a literal case-by-case basis.