Legal Minds weigh in- Jury Nullification

If you think you are getting more from me, you are an idiot. I have 2 choices here based on your question. Say I would convict someone based on this tiny snippet of information or admit to wanting to commit a federal crime. I am smart enough not to play. You can take that however way you want and you can assume whatever you want from my answer.

??? How is voting the way you choose to a crime? Are you stating that there is a state predetermined "correct" vote? Sometimes the "truth" is that a law is BS and a jury has the power to ignore it. That power should never be taken away. The day a jury can't vote how they see fit taking into account what is right and wrong (and I'm not talking about right and wrong in the LAWS eyes here) is the day we might as well do away with juries.

Think about this: laws come from some kind of morals if you go back far enough. Laws against murder, etc. So how can you not say there is moralistic right and wrong associated with the system? If a law is not moral, or if it is unconstitutional a jury should be able to nullify it in their decision. You say wait and change the laws the proper way? That is great, but in the meantime some guy goes to jail for having an inanimate object and his life is ruined. By the way, had any luck changing unconstitutional laws in MA recently?
 
There is a certain Kabuki-theater-like aspect to our legal system as described to me by several lawyers, including my sister. There is an assertion in the legal community that the law is almost deterministic, where once the facts are found, that the laws are applied to those facts like a mathematical formula, and out comes the reproducible result -- a guilty or not guilty decision.

Certainly the personal opinions and beliefs of the prosecutor have an enormous effect in certain areas of law. Self-defense cases are a good example. Some DAs seem to think that any time someone is shot, someone else has to go to jail. Others allow that a citizen has a right to defend himself, and are more reluctant to second-guess judgment calls made with lives on the line.
 
Can anyone here cite any federal statute that forbids jury nullification?

found this interesting bit while searching for an answer

To begin with, it is usually false. The typical oath taken by jurors today does not forbid them from refusing to convict based on their sense of justice. In fact, many oaths administered today are barely even intelligible. At the beginning of (p.12)the trial, jurors are typically asked to swear that they "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help [me] God." United States v. Green, 556 F.2d 71 n.1 (D.C. Cir. 1977).

Nobody still alive today knows for sure what it means to "make a true deliverance." But nothing in this oath would forbid jurors from acquitting if they are convinced--based solely on "the evidence"--that the accused's actions were morally blameless and that a conviction would be unjust. In such rare cases, no jurors could be said to have decided a case "well and truly" if they had to disregard their sense of justice to convict. And an acquittal in that case would certainly sound like a "true deliverance." See Proverbs 24:11 ("Rescue those being led away to death"); Isaiah 61:1 ("He has sent me to proclaim freedom for the captives and release from darkness for the prisoners").

If a jury refuses to convict a man because of overwhelming feelings of mercy or justice, they are not returning a "false" verdict. A verdict of "not guilty" based on a jury's notions of justice is not affirmatively declaring that he is innocent. (The same is true of an acquittal based on their conclusion that he has only been shown to be probably guilty, but not beyond a reasonable doubt.) The general "not guilty" verdict is merely a shorthand way of allowing the jury to express, for reasons they need not explain, "we do not choose to condemn the accused by pronouncing him guilty."

Source
 
Certainly the personal opinions and beliefs of the prosecutor have an enormous effect in certain areas of law. Self-defense cases are a good example. Some DAs seem to think that any time someone is shot, someone else has to go to jail. Others allow that a citizen has a right to defend himself, and are more reluctant to second-guess judgment calls made with lives on the line.

It's interesting how comfortable some folks are with the discretion a prosecutor uses every day, but at the same time are scared and troubled with the idea that a juror might exercise similar judgment.
 
Think about this: laws come from some kind of morals if you go back far enough. Laws against murder, etc. So how can you not say there is moralistic right and wrong associated with the system? If a law is not moral, or if it is unconstitutional a jury should be able to nullify it in their decision. You say wait and change the laws the proper way? That is great, but in the meantime some guy goes to jail for having an inanimate object and his life is ruined. By the way, had any luck changing unconstitutional laws in MA recently?

Woah there Pardner!

I'm on the same side of the issue as you, but deciding on my own whether a law is or is not constitutional genuinely IS a call above my pay grade.

This is constitutional scholar stuff in large measure. By the way, it was that way at the founding too. There's a reason the Marshal decision was considered radical, but all in all, that precedent has served us all very well. It's slow, it's tortuous, but it seems to come around eventually, most of the time.

I am quite literally not qualified to make a call on the constitution beyond a very much layman's perspective and am therefore unwilling to throw 230 years of consistent legal history on the trash heap because I have an opinion on a very technical question. I wouldn't try to tell you about the ins and outs of a nuclear plant either. I simply don't know enough beyond the basics other than to say I'm for it, not against it. But that's hardly an expert opinion.

I think you have it dead right on the moral issue though, even though that's subjective. At some point we have to trust the people in our communities to do what's right. And I think that's what nullification is for. If the law itself, constitutional or NOT, is clearly unjust or being misapplied in a particular case in the eyes of the jury, I think it's the jury's duty to acquit.

A lot of the opinions I see on this board are what I think are on the extreme side. But it's easy to see how people can get radicalized when we take away one of the real safety valves in the system; the power of juries to refuse to do the government's bidding and not fear prosecution. If it happened more often a lot of bad laws would be long gone because it simply wouldn't pay to enforce them. It's just one more part of the people's ability to determine their own fate as a country.

Hard not to be hostile to a government you feel utterly powerless to affect with your vote and your hard work.
 
I want terraformer to lay out the section of the US Code that punishes jury nullification/violation of jurors oath/ignoring judicial instruction.

You called it a federal crime. Don't bother trying to disavow it. Here it is:

Originally Posted by terraformer
If you think you are getting more from me, you are an idiot. I have 2 choices here based on your question. Say I would convict someone based on this tiny snippet of information or admit to wanting to commit a federal crime.

Now prove that it is. Or shut up.
 
deciding on my own whether a law is or is not constitutional genuinely IS a call above my pay grade.

I don't think so.

The overwhelming majority of constitutional questions are dead easy.

Congress has no authority to control education, even though your legal "experts" say they do through the application of the commerce clause. Bullshit. The constitution is very clear.

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed".

Cursory examination of the intent of the founders yield an easy understanding of that sentence. The overwhelming amount of "jurisprudence" on that topic is useless bullshit and should safely be ignored.

Stare decisis my a$$.
 
I don't think so.

The overwhelming majority of constitutional questions are dead easy.

Congress has no authority to control education, even though your legal "experts" say they do through the application of the commerce clause. Bullshit. The constitution is very clear.

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed".

Cursory examination of the intent of the founders yield an easy understanding of that sentence. The overwhelming amount of "jurisprudence" on that topic is useless bullshit and should safely be ignored.

Stare decisis my a$$.

+1
 
I don't think so.

The overwhelming majority of constitutional questions are dead easy.

Congress has no authority to control education, even though your legal "experts" say they do through the application of the commerce clause. Bullshit. The constitution is very clear.

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed".

Cursory examination of the intent of the founders yield an easy understanding of that sentence. The overwhelming amount of "jurisprudence" on that topic is useless bullshit and should safely be ignored.

Stare decisis my a$$.

However much you protest, decisions about whether or not a given statute is unconstitutional are frequently not binary questions. It's subject to honest and well thought out opinions on more than one side of the question. Some are obvious. The 2nd. Some are less so.

I don't need to know anything about the constitution to judge my own sense of fairness and basic human rights, like the right to self defense and the means of that defense. The constitution doesn't tell me what's morally just or unjust. I've seen arguments about the supposed unconstitutionality of income tax because the there's one comma left out of place or something to that effect in one of the votes for ratification of the 16th. That's a crackpot theory IMO.

But I don't have to get into that argument with a fellow juror if we both agree that applying the law in this case would be unjust morally. You can use whatever you want to gauge what's moral. you literally are THE expert on your own conscience. I may find the tax so excessive, or the prosecution so selective as to be inherently unfair. You may decide it's unconstitutional in your eyes and therefore unjust to convict. We arrive at similar conclusions. But we can argue all day long over our half-assed narrowly informed opinions about a fairly complicated technical subject and never reach any conclusion. Or worse yet, reach a very BAD conclusion. Which you might think to be the case if I was the last holdout for guilty in a tax evasion case.

I won't listen to what I think is a crackpot theory more than once. But I can be persuaded that something is fundamentally unjust, regardless of whether it's technically legal or constitutional, or not. If there was a free and fair election and the second amendment was repealed would you vote to convict people of unlawful possession? It would be constitutional.
 
If there was a free and fair election and the second amendment was repealed would you vote to convict people of unlawful possession? It would be constitutional.
Removing that text from a document no more repeals my right to keep and bear arms in my defense and the defense of a free state (of being) than me removing the law of gravity from textbooks allows you to float in space.
 
Removing that text from a document no more repeals my right to keep and bear arms in my defense and the defense of a free state (of being) than me removing the law of gravity from textbooks allows you to float in space.

Exactly. Because you don't need a piece of paper, however important it may be, to tell you what's fundamentally right and wrong. If your standard is what's constitutional, you'd have to vote to convict. If your standard is what is just and moral, you'd vote to acquit.

First I think laymen's opinions on what's constitutional and not are often factually wrong. Second, why get into constitutional law questions when the question before you is simple:

1. Was the law violated by the defendant in the manner charged and proven beyond a reasonable doubt? Yes or No. If yes convict. Unless....
2. Would a conviction offend your sense of morality and justice? Yes or no. If yes, acquit.

No constitutional debate necessary. You're the expert on your conscience.
 
I don't think so.

The overwhelming majority of constitutional questions are dead easy.

Congress has no authority to control education, even though your legal "experts" say they do through the application of the commerce clause. Bullshit. The constitution is very clear.

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed".

Cursory examination of the intent of the founders yield an easy understanding of that sentence. The overwhelming amount of "jurisprudence" on that topic is useless bullshit and should safely be ignored.

Stare decisis my a$$.

+2
 
1. Was the law violated by the defendant in the manner charged and proven beyond a reasonable doubt? Yes or No. If yes convict. Unless....
2. Would a conviction offend your sense of morality and justice? Yes or no. If yes, acquit.

No constitutional debate necessary. You're the expert on your conscience.

Basic and to the point!
 
First I think laymen's opinions on what's constitutional and not are often factually wrong. Second, why get into constitutional law questions when the question before you is simple:

1. Was the law violated by the defendant in the manner charged and proven beyond a reasonable doubt? Yes or No. If yes convict. Unless....
2. Would a conviction offend your sense of morality and justice? Yes or no. If yes, acquit.

No constitutional debate necessary. You're the expert on your conscience.

Good point. The paper is worthless, simply a reflection of an ideal a group of intelligent and freedom minded people came to a couple centuries ago. It's only as good as we are now at understanding the meaning behind the words. I think that was my point before, I don't claim to be a "constitutional scholar", but I can see right and wrong. Whether some judge interpreted a certain way or not, I don't really care. There is no "pay grade" when it comes to understanding liberty and freedom. That is something the current system has indoctrinated into people... "only WE are professional enough to interpret the Constitution".
 
I want terraformer to lay out the section of the US Code that punishes jury nullification/violation of jurors oath/ignoring judicial instruction.

You called it a federal crime. Don't bother trying to disavow it. Here it is:



Now prove that it is. Or shut up.

I love how you ask me instead of the lawyer with 30 years of experience. I guess you are hoping that I make a fool of myself or you think I will be less of a challenge... [rolleyes]

It's called perjury, that's why you are not finding it in wikipedia. BTW, that is Title 16 § 1623 in direct answer to your challenge. It is also why your black and white binary mind can't parse the references you and others are finding and realize the crime is not in voting how you want in a jury but spouting off about it after the fact when you testified otherwise during voire dire(sp?). During that process, the judge and/or lawyers will ask you things as SWORN TESTIMONY. Common questions are about your background, etc and usually relevant to the case. They will commonly ask you if you are willing to make a fair judgement based on the facts of the case and not allow personal prejudices and other issues to cause you to render a verdict not in keeping with the law. That is where you are supposed to say you can't and they will dismiss you. This is where people who want out of jury duty and have half a brain do it. They will claim they can't be impartial for one reason or another. Unless they are obvious about it, they will get dismissed here.

But anyway, if once on the jury you turn into Don Quixote and rail against the machine for unfair laws and seek jury nullification, then you are at risk. But what happens in the jury room is not sworn testimony and becomes hearsay requiring witnesses, etc. Not as strong a case for a prosecutor. No, it is would be the proud peacock who struts their stupidity in the court room who will get the prosecutor/judge steaming. It is the act of stating they are not abiding by their earlier testimony that opens their legal liabilities.

This is not inconsistent with what I have said earlier. Since post one of mine, I have never said you can't vote any way you damned well choose. But you would rather piss into the fan to cool off on a hot summers day.

I will yield to RKG on the subject however, and possibly he knows of another law that is applicable and more importantly relevant case law. But every time I have heard of juror prosecutions they are on perjury charges. Also, since the OJ trial there have been instances, though unfortunately never prosecuted, of people intentionally seeking out jury spots in order to profit from or intentionally alter the verdict in high profile cases.
 
SCOTUS has ruled as recently as 1972 that juries have the power to decide the facts and the law. The judiciary may wish otherwise and no amount of US Code will change that. God help us all if the bureaucrats, lawyers and judges ever convince the populace otherwise. The result would be another RIGHT lost by the people.




I love how you ask me instead of the lawyer with 30 years of experience. I guess you are hoping that I make a fool of myself or you think I will be less of a challenge... [rolleyes]

It's called perjury, that's why you are not finding it in wikipedia. BTW, that is Title 16 § 1623 in direct answer to your challenge. It is also why your black and white binary mind can't parse the references you and others are finding and realize the crime is not in voting how you want in a jury but spouting off about it after the fact when you testified otherwise during voire dire(sp?). During that process, the judge and/or lawyers will ask you things as SWORN TESTIMONY. Common questions are about your background, etc and usually relevant to the case. They will commonly ask you if you are willing to make a fair judgement based on the facts of the case and not allow personal prejudices and other issues to cause you to render a verdict not in keeping with the law. That is where you are supposed to say you can't and they will dismiss you. This is where people who want out of jury duty and have half a brain do it. They will claim they can't be impartial for one reason or another. Unless they are obvious about it, they will get dismissed here.

But anyway, if once on the jury you turn into Don Quixote and rail against the machine for unfair laws and seek jury nullification, then you are at risk. But what happens in the jury room is not sworn testimony and becomes hearsay requiring witnesses, etc. Not as strong a case for a prosecutor. No, it is would be the proud peacock who struts their stupidity in the court room who will get the prosecutor/judge steaming. It is the act of stating they are not abiding by their earlier testimony that opens their legal liabilities.

This is not inconsistent with what I have said earlier. Since post one of mine, I have never said you can't vote any way you damned well choose. But you would rather piss into the fan to cool off on a hot summers day.

I will yield to RKG on the subject however, and possibly he knows of another law that is applicable and more importantly relevant case law. But every time I have heard of juror prosecutions they are on perjury charges. Also, since the OJ trial there have been instances, though unfortunately never prosecuted, of people intentionally seeking out jury spots in order to profit from or intentionally alter the verdict in high profile cases.
 
Citation?

I looked for it a few days ago and found a DC court of appeals (that bastion of free rights...) ruling that year in United States v. Dougherty that denied a retrial to the defendants when the jury they had were not given specific instructions for jury nullification. The appeals court held that although the jury had the power to nullify, the courts were not required to notify them of that option.

ETA: I don't know if that was the case n1oty intended to cite, it is the only one I could find that was relevant within that year.
 
Last edited:
Yes, that was the case I was referring to. When I posted the other day, I was working off the top of my head and I thought it was a SCOTUS decision. Obviously, I was mistaken about that and it is a Court of Appeals for the DC circuit decision (US v. Daugherty). There was a 1969 case in the Fourth Circuit which came to the same decision. Juries have the absolute power to nullify, but the judges don't have to tell them about this. In the Daugherty case, the court DID reverse and remand for a new trial, but for other reasons.




I looked for it a few days ago and found a DC court of appeals (that bastion of free rights...) ruling that year in United States v. Dougherty that denied a retrial to the defendants when the jury they had were not given specific instructions for jury nullification. The appeals court held that although the jury had the power to nullify, the courts were not required to notify them of that option.

ETA: I don't know if that was the case n1oty intended to cite, it is the only one I could find that was relevant within that year.
 
There is a difference between a "power" to nullify and a "right" to nullify...

But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that--a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. It is true that nullification has a long history in the Anglo-American legal system, see Dougherty, 473 F.2d at 1130-33, and that the federal courts have long noted the de facto power of a jury to render general verdicts "in the teeth of both law and facts," Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920); see, e.g., United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir.1983). However, at least since the Supreme Court's decision in Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them"), courts have consistently recognized that jurors have no right to nullify. See Gordan, supra, at 272, 277 (noting that, with Sparf, the Supreme Court "fixed the law where Lord Mansfield had left it" in King v. Shipley ("The Dean of St. Asaph's Case"), 4 Doug. 73 (K.B. 1784), in which Mansfield had written that jurors have the power, but not the right, to decide the law); Howe, supra, at 589 (referring to Sparf as "the Supreme Court's final and authoritative denial of the [jury's] right" to serve as judges of the law); see, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir.1988) ("[J]ury nullification is just a power, not also a right ...."). As a panel of the Court of Appeals for the District of Columbia Circuit--composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg--explained:

A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

United States v. Washington, 705 F.2d 489, 494 (D.C.Cir.1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to "apply the law as interpreted by the court." United States v. Boardman, 419 F.2d 110, 116 (1st Cir.1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).

116 F. 3d 606 - United States v. Thomas J R
 
With all due respect, we are now engaging in the type of semantics that lawyers and judges typically employ. In my view, power and right equal the same thing. The thing that really burns me is that the liberal judges are typically fond of stare decisis when discussing legal precedent. This particular subject, when viewed with an eye on stare decisis, was well settled law through the 1700's and 1800's. It really wasn't until the very late 1800's that the courts started to chip away at this right. This whole process has followed the same path as the attacks on 2A. They keep chipping away little by little until your right (and mine) is no longer a right.



There is a difference between a "power" to nullify and a "right" to nullify...



116 F. 3d 606 - United States v. Thomas J R
 
With all due respect, we are now engaging in the type of semantics that lawyers and judges typically employ. In my view, power and right equal the same thing. The thing that really burns me is that the liberal judges are typically fond of stare decisis when discussing legal precedent. This particular subject, when viewed with an eye on stare decisis, was well settled law through the 1700's and 1800's. It really wasn't until the very late 1800's that the courts started to chip away at this right. This whole process has followed the same path as the attacks on 2A. They keep chipping away little by little until your right (and mine) is no longer a right.

Bingo +1
 
With all due respect, we are now engaging in the type of semantics that lawyers and judges typically employ. In my view, power and right equal the same thing. The thing that really burns me is that the liberal judges are typically fond of stare decisis when discussing legal precedent. This particular subject, when viewed with an eye on stare decisis, was well settled law through the 1700's and 1800's. It really wasn't until the very late 1800's that the courts started to chip away at this right. This whole process has followed the same path as the attacks on 2A. They keep chipping away little by little until your right (and mine) is no longer a right.

If you care about staying out of jail that post has a lot of meaning. It's an appeals court ruling that juries have no right to nullify, which means if you're going to do it, you'd best keep your mouth shut outside the jury room and even there be mighty circumspect in your comments.

I favor nullification strongly, but I also have no desire to be in jail as some kind of martyr to a cause only a tiny fraction of people even know about, much less care about. I always keep my mouth shut as much as possible during selection, but reading that ruling, I'm going to be a lot more careful in future. The ruling wouldn't affect my vote, but it will make me a little more circumspect about it.
 
I favor nullification strongly, but I also have no desire to be in jail as some kind of martyr to a cause only a tiny fraction of people even know about, much less care about. I always keep my mouth shut as much as possible during selection, but reading that ruling, I'm going to be a lot more careful in future. The ruling wouldn't affect my vote, but it will make me a little more circumspect about it.
I'm confused. Where in that ruling does it state that a juror can be prosecuted for jury nullification? It clearly said that a juror can be removed from the jury for it, but I didn't see anything that spoke of prosecution for it.
 
If you care about staying out of jail that post has a lot of meaning. It's an appeals court ruling that juries have no right to nullify, which means if you're going to do it, you'd best keep your mouth shut outside the jury room and even there be mighty circumspect in your comments.

I favor nullification strongly, but I also have no desire to be in jail as some kind of martyr to a cause only a tiny fraction of people even know about, much less care about. I always keep my mouth shut as much as possible during selection, but reading that ruling, I'm going to be a lot more careful in future. The ruling wouldn't affect my vote, but it will make me a little more circumspect about it.

Nobody will end up in jail for pushing for nullification. I've never heard of it happening.

That said, I can agree that being open about it up front will probably get you tossed from a jury.

If Jurors agree to nullify, it can't be blatant, at least not during the course of the trial.

-Mike
 
I'm confused. Where in that ruling does it state that a juror can be prosecuted for jury nullification? It clearly said that a juror can be removed from the jury for it, but I didn't see anything that spoke of prosecution for it.

Post #106...
 
Nullify the soap box (hate speech, internet control, fairness doctrine)
Nullify the ballot box (gerrymandering, intimidation, fraud)
Nullify the jury box

Pretty soon you're going to find our the last box will the most difficult to nullify.
 
I'm confused. Where in that ruling does it state that a juror can be prosecuted for jury nullification? It clearly said that a juror can be removed from the jury for it, but I didn't see anything that spoke of prosecution for it.

If you perjure yourself in voir dire you're in deep trouble. I can't remember the wording now, but as I recall I've always been asked something along the lines of whether I could deliver a verdict based solely on the law and the facts, and be impartial. Depending on how they word the question, it could mean a lot of trouble if you get into the jury room and start expounding on jury nullification.

Like I said, it won't really affect my vote, but I'll be more cautious about it, and pay VERY close attention to voir dire questi0ons and questionnaires.
 
Back
Top Bottom