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Extravoice
2008-Jun-11, 01:02 PM
Every morning, I read the local newspaper while eating breakfast. One of the things that I follow are local court cases. Partly, this is because I'm an interested citizen, and partly because I served as a juror on a criminal case several months ago.

I seem to see a large number of cases where a jury sits through a lengthy trial (several weeks), deliberates for a few days, and then declares itself deadlocked. At this point, the judge promptly sends them home and no verdict is returned.

Having served on a jury, I can appreciate the level of effort and cost that is involved in bringing a case to trial. I now understand the meaning of the term "to make a federal case" out of something (although my trial was a "state" case). This is true on both the prosecution and defense sides. To go through a multi-week trial only to have the jury declare it is deadlocked after three days of deliberation seems absurd.

Of course, only the jury members know what the full situation is for each case, but deadlocked juries seem all too common IMHO. I'm unsure of the root problem or its solution, but if I was a judge I would make the jury work a little longer than three days before I released them from their job.

Hmmm...I wonder if the incidence rate for deadlocked juries is higher or lower than in the past.

[/rant]

captain swoop
2008-Jun-11, 01:27 PM
I was about to ask you the same question :) Maybe you should find out before declaring the Jury System as broken.

Extravoice
2008-Jun-11, 02:02 PM
A quick internet search didn't turn up whether the rate was changing, but did seem to indicate that deadlock rates vary considerably with location.

From this paper (http://law.bepress.com/cgi/viewcontent.cgi?article=1032&context=rutgersnewarklwps) from the Rutgers Law School:


Overall, the NCSC authors found that between 1996 and 1998, mistrials
resulting from deadlock in state courts occurred at a rate of 6.2%. The rates
varied dramatically in some cases. For example, Los Angeles County had a
hung jury rate of almost 15%, and New York County had a 9% rate.

Chuck
2008-Jun-11, 03:06 PM
Maybe some jurors are unhappy with the laws and are refusing to convict. I could see myself deadlocking a jury if the defendant is being charged with possession of a harmless weed, even if he's obviously guilty. The jury system is a way for the people to rebel against bad laws.

weatherc
2008-Jun-11, 03:14 PM
The jury system is a way for the people to rebel against bad laws.No. No it isn't. At all. That's what elections, representatives, and legislators are for.

Matherly
2008-Jun-11, 03:32 PM
No. No it isn't. At all. That's what elections, representatives, and legislators are for.

Actually, I'm with Chuck on this one. If I don't believe a crime has been commited, I am not going vote to convict, period. It's just one more check against government tyrrany that has been built into our system.

Note: IMHO, this is "political science" and not politics, and therefore allowed. However, I can see a case for this post having steped over the line and I apologize if that is the case.

SeanF
2008-Jun-11, 03:34 PM
No. No it isn't. At all. That's what elections, representatives, and legislators are for.
I'm going to agree with Chuck on this one, too. Jury nullification. It's not a bad thing. :)

weatherc
2008-Jun-11, 03:41 PM
If I were on a jury, and anyone hinted that they wouldn't convict because they didn't agree with the law itself, I would notify the court immediately. If they were lucky, they would just be dismissed and replaced with an alternate juror. If they got what they deserved, they would be held in contempt and be fined.

If you knew you were going to be on a case where you didn't agree with the law being enforced, then it is your duty to tell the judge that you have a conflict of interests with the case.

The courthouse is not the place to play little political games. Period.

Cougar
2008-Jun-11, 03:43 PM
Interesting history of jury nullification. (http://en.wikipedia.org/wiki/Jury_nullification)

publius
2008-Jun-11, 03:48 PM
The courthouse is not the place to play little political games. Period.


Heh. Please tell that to judges and lawyers. :)


-Richard

Gillianren
2008-Jun-11, 03:51 PM
Isn't jury nullification itself illegal in some jurisdictions?

But seriously--no, the jury room is not the place for it. For one thing, referring to the "harmless weed" (which isn't, though it's less harmful than some legal drugs), it's not actually going to change the law, which--correct me if I'm wrong--is what you want to do in the first place. It's hardly as though one case of jury nullification is going to do that.

Extravoice
2008-Jun-11, 03:52 PM
For what it is worth, when I served, jurors are instructed to determine "fact." We were not to consider potential penalties, whether the law was just or not, etc.

ETA: The cases that I'm referring to don't involve "questionable laws." They tend involve crimes such as assault, etc.

captain swoop
2008-Jun-11, 03:59 PM
In the UK it might be 'Perverting trhe Course of Justice' rather than Contempt if you knew from the start you weren't going to convict because you didn't agree with the law. Contempt can be more serious, in therory a sentance has no limit and its up to the Judge rather than a trial to find it.

mike alexander
2008-Jun-11, 03:59 PM
Increase the daily stipend for jurors to, say, $300, plus all expenses, tax-exempt.

weatherc
2008-Jun-11, 04:01 PM
Heh. Please tell that to judges and lawyers. :)


-RichardLet me rephrase that:

The courthouse is not the place for you to play your little political games. Period. :)

Cougar
2008-Jun-11, 04:03 PM
....deadlocked juries seem all too common IMHO. I'm unsure of the root problem or its solution....

Jury nullification aside, I'm not so sure that a 10% or 15% hung jury rate is something to be that concerned about. When there is good evidence to support one side or the other, a case may rarely even make it to trial, either because the defendant makes a plea deal or the prosecution dismisses the case. The cases that get to trial are those where there is some question of fact, and that is what the jury is there to determine, if they can. Typically there is testimony supporting a fact and other testimony in opposition to such fact, otherwise the facts would not be in dispute. Sometimes 12 people can agree that they don't believe one witness and they do believe another. Other times they cannot.

Disinfo Agent
2008-Jun-11, 04:03 PM
This may not be quite to the topic, but New York Times reporter Adam Liptak has been writing a series of very interesting articles on the American justice system, comparing it with those of other countries. It's called "American Exception" (http://topics.nytimes.com/top/news/us/series/american_exception/index.html).

publius
2008-Jun-11, 04:08 PM
Let me rephrase that:

The courthouse is not the place for you to play your little political games. Period. :)

Say some time in the future the Supreme Court manages to interpret the First Amendment away. Congress soon makes it federal crime to criticize members of Congress, calling it sedition to do so. The FBI promptly arrests people under that law.

If I'm on the jury before which such a case is brought, I am going to nullify the devil out of that law. Is that, in principle, a "political game"?


-Richard

captain swoop
2008-Jun-11, 04:15 PM
I everyone was to only enforce the laws they like we would have Anarchy

weatherc
2008-Jun-11, 04:19 PM
It is also worth noting that the concept behind jury nullification can just as easily be used to convict a defendant who should have been set free as to release someone who, according to the law, should have been convicted.

For example: A person is brought in on robbery charges. The evidence is a bit sketchy and circumstantial, but there was enough to merit going to trial. During the proceedings, it somehow comes to light that the defendant smokes pot. Now, if the jury wants to "prove a point" about smoking pot, then they could decide to find the defendant guilty, even though there is reasonable doubt about whether there is enough evidence to convict, and the pot smoking wasn't related to the robbery in any way.

That's the danger in using the jury as a political tool, and not following the orders of the court to examine only the facts as presented in the courtroom. It can cut both ways.

SeanF
2008-Jun-11, 04:20 PM
Say some time in the future the Supreme Court manages to interpret the First Amendment away. Congress soon makes it federal crime to criticize members of Congress, calling it sedition to do so. The FBI promptly arrests people under that law.

If I'm on the jury before which such a case is brought, I am going to nullify the devil out of that law. Is that, in principle, a "political game"?


-Richard
From Cougar's wiki link:


The first notable instance of jury nullification in the colonial United States occurred when in 1734 a jury refused to convict John Peter Zenger of seditious libel for publishing a newspaper critical of the governor.
:)

Just like any other aspect of the judicial system, jury nullification has the potential for abuse. But that doesn't automatically make it wrong. IMHO, it is a reasonable part of the judicial system and is not, in and of itself, a "little political game."

Matherly
2008-Jun-11, 04:28 PM
It is also worth noting that the concept behind jury nullification can just as easily be used to convict a defendant who should have been set free as to release someone who, according to the law, should have been convicted.


Except, in your example you have to get 12 jury members to agree to "send a message". MUCH harder (as opposed to "just as easy") than the reverse (one member holds out against a 'guilty' verdict)

Chuck
2008-Jun-11, 04:28 PM
It is also worth noting that the concept behind jury nullification can just as easily be used to convict a defendant who should have been set free as to release someone who, according to the law, should have been convicted.

For example: A person is brought in on robbery charges. The evidence is a bit sketchy and circumstantial, but there was enough to merit going to trial. During the proceedings, it somehow comes to light that the defendant smokes pot. Now, if the jury wants to "prove a point" about smoking pot, then they could decide to find the defendant guilty, even though there is reasonable doubt about whether there is enough evidence to convict, and the pot smoking wasn't related to the robbery in any way.

That's the danger in using the jury as a political tool, and not following the orders of the court to examine only the facts as presented in the courtroom. It can cut both ways.

That could happen but you'd need for all 12 jurors to agree to it. Any one pot smoker on the jury, or even one honest juror, and you'd have a deadlock.

Ivan Viehoff
2008-Jun-11, 04:29 PM
In the USA a large proportion of accused criminals plead guilty, so it is mainly the difficult and contentious cases that get put before a jury. The plea-bargain system makes it very likely that someone who is at risk of being convicted by a jury will plead guilty rather than go before a jury. In fact it is commonly reckoned that a lot of innocent people plead guilty in the US because the risk and cost of going before a jury is too high.

It doesn't surprise me that there is a low conviction rate in front of juries in the USA. You are mad to go in front of a jury in the USA if there is a good chance they will convict you. You'll get a much higher sentence. Also you could win but it would bankrupt you. (In the UK you get your legal costs refunded if you win a case, and the quality of representation for people who can't afford their own representation is much better). The only people who go in front of a jury in the US are people who have a good chance of getting off, or people who have money to burn, or people who are too stubborn or mad to work this out.

The US system would be a good system, provided that the prosecutors were honest in not prosecuting people who are actually innocent. But actually they prosecute people they can extort guilty pleas from, thinking it to be evidence that they are guilty, whereas actually i tis evidence of a legal system that is stacked against the accused. We have the same problem in the UK. Whilst there rae lots of guilty people in the UK who get off because the prosecution system is in general incompetent and inefficient, there are still lots of innocent peopel they successfully prosecute knowing that they aren't really guilty, but they can use the system to get a conviction.

PetersCreek
2008-Jun-11, 04:31 PM
IMO, deadlocked juries are to be expected as normal in a system that requires the State to prove its case for conviction. Given the diversity of people who serve as jurors, I certainly don't expect them to be so uniformly convinced (or not), that all of them will tip one way or another as a unified whole. My off-the-cuff impression is that a 6-ish percent deadlock rate isn't out of line...and might even be darn good for all I know.

geonuc
2008-Jun-11, 04:36 PM
Isn't jury nullification itself illegal in some jurisdictions?
Yes, it is, but absent an admission on the part of the offending juror, there is usually little the legal system can do about it. What goes on behind the doors of the jury room has long been held as inviolate. There are some who oppose that notion.

weatherc
2008-Jun-11, 04:44 PM
So, those of you in favor of nullification are okay with the concept, even if the "cause" is one that you don't agree with? What if one of the jurors wouldn't convict because the defendant was white (or asian, or black)? Or if they wouldn't convict because the defendant was muslim (or jewish, or christian)? To them, their cause is just as important as whatever your cause may be. Who are you to stand in their way and tell them that their cause isn't germane to the case?

If this were the case, how would there ever be a conviction in a jury trial, when all it takes is one person on a jury with some personal political cause to nullify it?

Matherly
2008-Jun-11, 04:56 PM
If this were the case, how would there ever be a conviction in a jury trial, when all it takes is one person on a jury with some personal political cause to nullify it?

You move on the assumption that a mistrial = not guilty. It doesn't. The prosecution gets to retry it if they feel they can get a conviction.

And yes, this stacks the deck against the prosecution. Good! This is far too serious a topic for the goverment (with the power to take property, freedom, and even life from the accused) to get a free ride.

And yes, the best system would be for me to be the undesputed ruler of all. But it is an imperfect world.

Cougar
2008-Jun-11, 05:01 PM
"Providing an empirical picture of hung juries was the principle objective for this 4-year study (http://www.ncsconline.org/WC/Publications/Res_Juries_HungJuriesProblemPub.pdf) by the National Center for State Courts (NCSC) with funding by the National Institute of Justice (NIJ)." [Note: link is to a 2.0 MB pdf report. Interesting section on jury nullification. Well, the whole report is interesting. ;)]

mike alexander
2008-Jun-11, 05:36 PM
From a young age I learned that the point of a peer jury system was to ensure, to the greatest degree possible, that innocent persons were not wrongly convicted, even if that meant from time to time guilty persons escaped conviction. The system in use makes it difficult to secure a conviction in general. To me, this acts as a powerful counteracting force to the power of the state, and it should be so.

Since every empanelled jury is unique, every outcome is uncertain (I mean, if we really, really, knew who was guilty, the very process of judgement wouldn't be needed). But under the idea of truly equal justice under impartial law, we even give the obviously guilty perpetrator a shot at the court if desired. This peeves a lot of people sometimes (me included).

As for deadlocked juries, I imagine it's a judgement call (!) by the judge. Pushing a jury to produce a verdict at any cost could be seen as moving from accumulated weight of evidence by the jury to excessive nonjudgemental pressures on the holdouts of either side. See: Twelve Angry Men.

Extravoice
2008-Jun-11, 05:51 PM
"Providing an empirical picture of hung juries was the principle objective for this 4-year study (http://www.ncsconline.org/WC/Publications/Res_Juries_HungJuriesProblemPub.pdf) by the National Center for State Courts (NCSC) with funding by the National Institute of Justice (NIJ)." [Note: link is to a 2.0 MB pdf report. Interesting section on jury nullification. Well, the whole report is interesting. ;)]

Nice find! Thanks.

PetersCreek
2008-Jun-11, 05:59 PM
So, those of you in favor of nullification are okay with the concept, even if the "cause" is one that you don't agree with? What if one of the jurors wouldn't convict because the defendant was white (or asian, or black)? Or if they wouldn't convict because the defendant was muslim (or jewish, or christian)? To them, their cause is just as important as whatever your cause may be. Who are you to stand in their way and tell them that their cause isn't germane to the case?

Yes, I agree with jury nullification even if some juror, somewhere, abuses it. Every single system, mechanism, and tool of human contrivance is subject to abuse...and at every level. While "elections, representatives, and legislators" are a primary means of challenging unfair laws, IMV, jury nullification is J. Public's last line of defense within the system...a chance to say "this isn't right" and have it mean something.

If we're going to engage in what if/even if, here's a scenario. You're a juror, hearing the case of some fellow who, without question, has violated a law you've never heard of before. It's clear to you that this law isn't right, fair, or just. Do you convict anyway, fire off an e-mail to your congresscritter, and forget about it?

Gillianren
2008-Jun-11, 06:06 PM
You move on the assumption that a mistrial = not guilty. It doesn't. The prosecution gets to retry it if they feel they can get a conviction.

Unless, of course, there have already been two hung juries.

SeanF
2008-Jun-11, 06:23 PM
Unless, of course, there have already been two hung juries.
A three-hung-jury limit? Are you sure about that?

publius
2008-Jun-11, 06:30 PM
Yes, what is the old saying, better a hundred guilty go free than one innocent be convicted? That's easy to say until you yourself are a victim of a crime. :) And that's why I want a system that's put in place based on that principle that no one can overturn in the heat of passion. No matter what I say, keep me locked in this room. :lol:

Which would you prefer, a nullifier juror, or a Prosecutor Mike Nifong.

http://en.wikipedia.org/wiki/Mike_Nifong

Note that had the Duke boys not come from wealthy families who could afford the legal talent as well as the means to make the case in the national media, Nifong would've probably succeeded in convicting them.

Mike Nifong is the poster boy for why the system must be biased strongly against the state.

-Richard

Moose
2008-Jun-11, 08:23 PM
In Canada, it is legally mandated that what happens in the jury room stays in the jury room. I've been a juror, but I cannot talk about what happened there (except what's public knowledge, such as my having been the foreman). I can tell you the jury voted not guilty, but I can never be required to tell you why I came to the conclusion I came to (and it's entirely possible that I can't tell you even if I wanted to.)

As such, as much as the judge doesn't like it, Jury Nullification is necessarily a legally protected option.

I will say that I am capable of Jury Nullification given sufficient cause, but it's not an option I'd ever exercise lightly, and I'm not dumb enough to cite it as a motivation.

I will say this, however, to any trial lawyer within the sound of my voice: if I'm to bear the responsibility of being a "finder of fact", then know that an accused is not guilty until and unless the prosecutor establishes sufficient fact to establish the accused as the perpetrator of a crime, beyond a reasonable doubt.

Establishing motive is not enough. Establishing opportunity is not enough. Attempting to play on my emotions will not cut it. Pedantic wordplay against layperson witnesses is not a substitute for fact. Openly cherry-picking evidence will not impress me. Engaging in logical fallacy, no matter how passionate, will be recognized, noted, silently scorned, then dissected for the other jurors and exposed for what it is.

mike alexander
2008-Jun-11, 08:55 PM
Moose, are you sure your name isn't Horace Rumpole?

But you certainly summed up my position darned well.

mike alexander
2008-Jun-11, 08:57 PM
Just had a thought. Could one take the political temperature of a society by looking at the ratio of television shows featuring prosecutors/defense lawyers?

weatherc
2008-Jun-11, 09:13 PM
Yes, I agree with jury nullification even if some juror, somewhere, abuses it. Every single system, mechanism, and tool of human contrivance is subject to abuse...and at every level. While "elections, representatives, and legislators" are a primary means of challenging unfair laws, IMV, jury nullification is J. Public's last line of defense within the system...a chance to say "this isn't right" and have it mean something.

If we're going to engage in what if/even if, here's a scenario. You're a juror, hearing the case of some fellow who, without question, has violated a law you've never heard of before. It's clear to you that this law isn't right, fair, or just. Do you convict anyway, fire off an e-mail to your congresscritter, and forget about it?

If I felt the law was obviously unfair, then I would let the judge know during jury selection that I didn't agree with the law. The prosecution would probably be perfectly happy to drop me from the jury before finishing their selection.

If the judge insisted that I be on the case after letting my opinion be known, then in order to fulfill my oath as a juror, I feel I would be obligated to weigh the evidence as presented, just like in any other case, and make a decision based upon the merit (or lack thereof) of that evidence.

I don't see it as my duty to try to legislate from the jury, even if, in my own mind, the law itself is unjust. To me, willful nullification of a jury that isn't based upon the evidence at hand is no better than anarchy. You may not like that answer; it may not be the appropriate "stick it to the man" attitude that you're looking for, but it's how I feel about it.

Gillianren
2008-Jun-11, 09:25 PM
A three-hung-jury limit? Are you sure about that?

Pretty sure.

publius
2008-Jun-11, 09:45 PM
I've been reading a bit about the history of jury nullification. It's quite interesting. Now it has become "Don't ask, don't tell." But up until the mid to late 1800s, judges, both federal and state, routinely instructed juries they had the power to judge both law and fact, and even went so far as to say they could completely disregard his instructions. John Jay, the first Chief Justice (and one of the authors of the Federalist papers) affirmed it.

In fact, that was one of the charges against Samuel Chase, the only Supreme Court justice every impeached by the house, that as a trial judge he failed to inform the jury of their power to nullify (his impeachment was based on charges that his decisions were biased in favor of Federalists -- the Senate acquitted him).

Jury nullification was employed in cases brought under the odious Alien and Sedition Act.

http://en.wikipedia.org/wiki/Alien_%26_Sedition_Acts

While many opponents of jury nullification use the case of white juries acquitting defendents charged with lynching, jury nullification was used against the Fugitive Slave Act in the north before the Civil War. Juries would just refuse to convict anyone charged with harboring or aiding fugitive slaves.

Federal judges got miffed at that and began questioning and dismissing jurors who would nullify the Fugitive Slave Act.

And finally, in the late 1800s, jury nullification was being used powerful corporations in labor disputes. Some laws made it illegal to strike, and many juries just nullified those charged under that law. That miffed the powerful interests.

There was a landmark case,

http://en.wikipedia.org/wiki/Sparf_v._United_States

where the Supreme Court in a 5-4 split (with scathing dissent by two justices) ruled that federal judges did not have to inform juries of their power to nullify. It is argued that the majority was in the back pocket of power business interests there.

And you can blame the lawyers as well. The American Bar took a very strong stance against jury nullification at this time, arguring that jurors were becomming to uppity and hostile to their clients. And 1892 article in American Law Review said that juries had "developed agrarian tendencies of an alarming character."

The government (who else) always cites that as prrof that jury nullification is illegal. :) However, the court has never said that, and very recently has affirmed the "de facto" *power* (not right) of jury nullification.

And it was used against Prohibition as well. But absent judges informing them of their powers, juries gradually forget they have the power (which is what judges, the government and lawyers generally want).

I find it ironic that most modern civil rights activists are generally against jury nullification on grounds it will be used against minorities, when the history has been just the opposite overall. It has been used against powerful interests oppressing the little guy and more in favor of minorities than against them.

So it is indeed basically "Don't ask, don't tell". The Supreme court has affirmed that a jury's verdict is absolute, but grants judges the power to remove jurors (before the verdict) who they think will ignore their instructions, hold defense lawyers in contempt for mentioning it, and declare mistrials if they think a jury has been contaminated by the knowledge of their nullification power. :)

So, like Moose said, keep your mouth shut about it if you're a juror.

-Richard

Moose
2008-Jun-11, 09:54 PM
Moose, are you sure your name isn't Horace Rumpole?

Nope. I'm just a token skeptic who happens to have the bad habit of writing passionate posts on message boards. It's likely that I'll never shake the world. I'm mostly okay with that. But, it's possible that I will someday have to take an unpopular stand with real stakes on the table. When I finally pack it in, I'd like to do so knowing that I was worthy of my principles.


But you certainly summed up my position darned well.

Thank you. :)

PetersCreek
2008-Jun-11, 10:00 PM
...it may not be the appropriate "stick it to the man" attitude that you're looking for...

You couldn't have been more profoundly wrong about my philosophy.

Moose
2008-Jun-11, 10:10 PM
Just had a thought. Could one take the political temperature of a society by looking at the ratio of television shows featuring prosecutors/defense lawyers?

I had to think about this for a bit. It's an interesting thought, but I think I have to conclude, no. For this to be an accurate measure, one has to assume that the media is truly driven by the market, rather than the other way around. I do not believe such an assumption could survive scrutiny.

publius
2008-Jun-11, 10:16 PM
Hmmph. A few states have jury nullification enshrined in their constitutions, explcitly stating that juries may try the law as well as the facts. Maryland is one, and judges are required to say this in criminal trials:



Members of the Jury, this is a criminal case and under the Constitution and the laws of the State of Maryland in a criminal case the jury are the judges of the law as well as of the facts in the case. So that whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. And you may apply the law as you apprehend it to be in the case."


Before the mid to late 1800s, such instructions were routinely given in both federal and state courts.

-Richard

Cougar
2008-Jun-11, 11:18 PM
In Canada, it is legally mandated that what happens in the jury room stays in the jury room.
During deliberations, absolutely.


I've been a juror, but I cannot talk about what happened there (except what's public knowledge, such as my having been the foreman). I can tell you the jury voted not guilty, but I can never be required to tell you why I came to the conclusion I came to (and it's entirely possible that I can't tell you even if I wanted to.)

I don't know about Canada, but in the States, you are not required to talk about the case after the verdict is in, but you certainly may. Attorneys generally want to talk to any juror who is willing, especially if they lost. The jurors can talk about anything that went on in the jury room.

Moose
2008-Jun-12, 12:07 AM
I don't know about Canada, but in the States, you are not required to talk about the case after the verdict is in, but you certainly may. Attorneys generally want to talk to any juror who is willing, especially if they lost. The jurors can talk about anything that went on in the jury room.

Yeah, I was aware. In the judge's opening instructions to my jury, this facet of US law was explicitly contrasted with our responsibilities. If I were to write about, say, how many votes were taken and the nature of the discussions we'd had, my butt would very likely end up in a legal sling. Certainly so if I were to get caught naming names. I'd be doomed if a tell-all showed up on the market with my name on it. Our judge was adamant about that, and IMO, rightly so.

The only thing I'm unsure about is whether or not I can talk, if I chose to, about my own reasoning and impressions. I'm perfectly willing to admit I would like to. That was a lot to keep bottled up.

AGN Fuel
2008-Jun-12, 03:29 AM
At least jurors in your respective countries seem to pay a degree of attention to what's going on!! (http://www.smh.com.au/articles/2008/06/10/1212863636766.html)

Tobin Dax
2008-Jun-12, 04:54 AM
But [Moose] certainly summed up my position darned well.

Same here. Much better than I could have. I haven't had to serve on a jury yet, but Moose's summation is exactly my philosophy on the duties of a jury.

Drunk Vegan
2008-Jun-12, 07:27 AM
I don't see it as my duty to try to legislate from the jury, even if, in my own mind, the law itself is unjust. To me, willful nullification of a jury that isn't based upon the evidence at hand is no better than anarchy. You may not like that answer; it may not be the appropriate "stick it to the man" attitude that you're looking for, but it's how I feel about it.

If a law is unjust, you have not only the right but the obligation to oppose it as a citizen in a democracy. Politics have nothing to do with it. We're not talking about changing the law, we're talking about giving a second chance to a human being who has been the victim of that law. It seems that the very least we can do is to give the man a shot at a second trial where the outcome may be more favorable (and statistically, usually is).

A law can violate not only your sense of ethics but your sense of morality as well. If it is mandated that you serve as an executioner in a firing squad, but your religion forbids murder, are you to simply stand in line and pull the trigger because it's what the law requires?

Sounds like selling out to me.

geonuc
2008-Jun-12, 10:52 AM
As a lawyer and officer of the court, I suppose I have to say jury nullification, which is not legal here, should be discouraged.

But as a citizen, there's no way I'd vote to send someone away for life because they stole a slice of pizza and had two priors on record (three strikes law). Or they were caught with a couple of joints in their pocket.

A little off-topic, but the issue of Mike Nifong was raised. I have to say that I find prosecutorial misconduct - particularly charging people based on flimsy evidence because it helps your re-election chances - to be a most dispicable act. I support maximum penalties for those charged with upholding the law who abuse their powers at the expense of the people they swore an oath to serve.

Maksutov
2008-Jun-12, 11:18 AM
If I felt the law was obviously unfair, then I would let the judge know during jury selection that I didn't agree with the law. The prosecution would probably be perfectly happy to drop me from the jury before finishing their selection....And you would have no qualms when the newly-composed jury finds against the defendant?

:think:

Extravoice
2008-Jun-12, 12:08 PM
At least jurors in your respective countries seem to pay a degree of attention to what's going on!! (http://www.smh.com.au/articles/2008/06/10/1212863636766.html)

Well, that explains why the jury on which I was empaneled wasn't allowed notepads :)

Joking aside, I've never seen 12 people take their job so seriously in my life.

Matherly
2008-Jun-12, 12:49 PM
Joking aside, I've never seen 12 people take their job so seriously in my life.

Yea, I know. I was empaneled on a statutory rape case (underaged girl), and while we may have been joking around while we were in the jury room waiting for the session to start, once we hit the court room it was all business.

It gave me more confidence in our civilization than anything else I'd seen.

tdvance
2008-Jun-12, 02:20 PM
As a lawyer and officer of the court, I suppose I have to say jury nullification, which is not legal here, should be discouraged.

But as a citizen, there's no way I'd vote to send someone away for life because they stole a slice of pizza and had two priors on record (three strikes law). Or they were caught with a couple of joints in their pocket.

I partly agree--I'd never send someone away for life for stealing a slice of pizza. But if the two priors were bad enough and this was merely evidence the guy had no intention of reforming, yeah, guilty as charged. It's almost analogous to a guy being out on parole for murder, he does something minor, and goes right back in for a long time. It's more like evidence he shouldn't have been paroled (or in the other case, should have got a longer sentence for the two priors) than that the crime is heinous on its own. If anything, it's a "give the perp the benefit of the doubt and delay his punishment" thing.

tdvance
2008-Jun-12, 02:24 PM
And you would have no qualms when the newly-composed jury finds against the defendant?

:think:


Well, an argument for this is--if the law were so terrible, it would be hard to find a jury that would convict the person and a mistrial would happen as a result. If you're the only one with the belief...remember, the purpose of trial by jury is for society to have a say, not the one person who believes something completely contrary to society's standards. I.e. the one person keeping him from being convicted is a counterpart to the tyrant convicting someone wrongly without a jury. The US Constitution's philosophy is that the former possibility is not as bad as the latter, but that doesn't mean the former is perfectly good either!

SeanF
2008-Jun-12, 02:27 PM
As a lawyer and officer of the court, I suppose I have to say jury nullification, which is not legal here, should be discouraged.
The Georgia State Constitution (http://www.cviog.uga.edu/Projects/gainfo/conart1.htm) reads:

In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts. (Emphasis mine - SeanF)

I don't think nullification "is not legal [t]here," unless you're in a different Atlanta. :)

geonuc
2008-Jun-12, 04:13 PM
I don't think nullification "is not legal [t]here," unless you're in a different Atlanta. :)
I'm in the Atlanta you all know and love. However, I don't agree that the Georgia Constitution authorizes jury nullification.

I've read this thread and looked at some links. There appears to be a difference of interpretation as to what the term means. It starts with knowing what "judges of the law" means. It doesn't mean the jurors get to decide that they don't like a particular law. It means they get to decide how to apply the law to the facts of the case. In most US jurisdictions, that is the provenance of the judge.

Jury nullification (as I was taught) refers to jurors deciding to acquit (or convict, more rarely) despite concluding that the defendant violated the law. The Georgia Constitution does not allow this.

SeanF
2008-Jun-12, 04:59 PM
I'm in the Atlanta you all know and love. However, I don't agree that the Georgia Constitution authorizes jury nullification.

I've read this thread and looked at some links. There appears to be a difference of interpretation as to what the term means. It starts with knowing what "judges of the law" means. It doesn't mean the jurors get to decide that they don't like a particular law. It means they get to decide how to apply the law to the facts of the case. In most US jurisdictions, that is the provenance of the judge.

Jury nullification (as I was taught) refers to jurors deciding to acquit (or convict, more rarely) despite concluding that the defendant violated the law. The Georgia Constitution does not allow this.
The Georgia Supreme Court - while stopping short of requiring juries to be notified of this power, and even allowing for juries to be told it's their "duty" to convict if the evidence passes reasonable doubt - has explicitly acknowledged that "the jury does possess a de facto power of nullification, i.e., a power to acquit the defendant regardless of the strength of the evidence against him."

Miller v. State, 260 Ga. 191, 391 S.E.2d 642 (Ga., 1990)
Noggle v. State, 256 Ga. 383, 385(2), 349 S.E.2d 175 (1986)

The Supreme Canuck
2008-Jun-12, 05:22 PM
Jury nullification, eh? No, I don't like it. The proper channel for challenging a law is to bring it before the courts. It'll get kicked up to the Supreme Court and the justices will decide if it's constitutional or not. If it is constitutional, it stands. If you still don't like it, vote for someone who'll change it. That's what democracy is: compromise. You can disagree all you want, but in the end, the majority decides on the law. Just because you don't like a law doesn't mean that you have the right to change it; and just because you are in a position of relative power as a juror does not mean you have the right to ignore it. Your job as a juror is to answer the question "Did he break the law or not?" You are also obliged to tell the court if you disagree with the law in question.

The purpose of a trial is to determine whether a law was broken or not. There are other avenues available for expressing discontent with a law.

geonuc
2008-Jun-12, 05:25 PM
My previous posts stands. The Georgia Supreme Court has acknowledged that juries have the power to nullify (because there is little legal recourse against jurors for doing so), but has not said it was OK for that to happen. At least to my knowledge. I believe Miller stands for exactly what I said. I'm not familiar with Noggle, but it is an earlier case, so Miller has greater precedential weight.

weatherc
2008-Jun-12, 06:30 PM
And you would have no qualms when the newly-composed jury finds against the defendant?

:think:Would I like it? No. But it would mean I was honest about it with the court, instead of pretending to agree with the law and then nullifying the jury.

Anyone who didn't like that particular law could protest outside the courthouse where the person was being tried, if they wished. Or write their representatives. Or contest the law in court.

It is not up to jurors to decide whether a law should be on the books. It is not up to individual judges to decide whether a law should be on the books. It is up to the legislators to create the laws, and the courts to decide whether the laws are allowed by the constitution.

There are lots of laws that I don't agree with. The entire 16th amendment, for example. But I still pay my taxes, even though I feel that doing so (at the current rate) severely restricts my liberty. And if I were on a jury for a tax evasion case, and the evidence showed the defendant did it, I would still vote to convict. I don't agree with speed limits being the defining factor in road safety, but I still drive the speed limit most of the time, and have simply paid the ticket when I was caught going over the limit. Just because I disagree with the law as it stands doesn't mean that I think that judges should just dismiss all speeding tickets.

Drunk Vegan
2008-Jun-12, 06:38 PM
I think it really comes down to this:

Is it a jury's duty to serve the law or is it a jury's duty to serve justice?

If you believe that your duty as a citizen is to enforce laws, then of course jury nullification is wrong. But if you feel that you're obliged to serve justice, then jury nullification is a natural exercise of that responsibility.

Larry Jacks
2008-Jun-12, 06:47 PM
If you believe that your duty as a citizen is to enforce laws, then of course jury nullification is wrong. But if you feel that you're obliged to serve justice, then jury nullification is a natural exercise of that responsibility.

I think you've nailed the crux of the matter. It seems to me that the legal profession to include judges has become obscessed with process while forgetting or downgrading the importance of justice. They aren't the same thing, not by a long shot.

An earlier post asked about jury nullification in the case of a jury that wouldn't convict someone of one race charged with a crime against another race. Whether or not it's considered jury nullification, these things did happen in the past and they continue to happen today. The fact of the matter is that if the jury votes to acquit, then the defendant can not be retried on the same charges. This can literally allow someone to get away with murder (among other crimes). I personally don't believe that the jury is nullifying the laws against murder so much as refusing to convict "one of their own". It's hard to think what anyone can do about it, though.

SeanF
2008-Jun-12, 07:04 PM
Your job as a juror is to answer the question "Did he break the law or not?"
That's the crux of the debate. Some of us figure the job of a juror includes answering the question "Is it a just law or not?"


There are other avenues available for expressing discontent with a law.
And that's exactly what they are - avenues other than this one. :) And, of course, jury nullification isn't simply an avenue for "expressing discontent with a law," but for preventing someone from being the victim of an unjust law.


My previous posts stands. The Georgia Supreme Court has acknowledged that juries have the power to nullify (because there is little legal recourse against jurors for doing so), but has not said it was OK for that to happen.
Your previous post was that jury nullification was "not legal," not that it was "not OK." You say here that "there is little legal recourse against jurors for doing so," but I contend that there is no legal recourse against them, and it is therefore false to describe it as "not legal."


At least to my knowledge. I believe Miller stands for exactly what I said. I'm not familiar with Noggle, but it is an earlier case, so Miller has greater precedential weight.
Miller simply referenced Noggle on this issue.

The Supreme Canuck
2008-Jun-12, 07:05 PM
Is it a jury's duty to serve the law or is it a jury's duty to serve justice?

If you believe that your duty as a citizen is to enforce laws, then of course jury nullification is wrong. But if you feel that you're obliged to serve justice, then jury nullification is a natural exercise of that responsibility.

Juries must enforce the law. Justice is a slippery concept. What is just for me may not be just for you. This is why laws exist. They are objective. They are set. They are specific. They strive to be just. They aren't perfect; nothing can be. You may not think that they conform with your conception of justice; in fact, they probably don't. But that's democracy. The majority get to elect people to office. Those people write laws. If the public, on average, doesn't like the laws, they elect someone else and the laws are changed. It's a matter of averages and compromise. If more people believe that a law is good than believe it is bad, the law will probably stand. And the people who don't like the law are bound by it. Rule of law demands it. If you don't like it, move, vote, or challenge the law in court. Protest. Write letters. But you still need to obey the law.

So. Juries must enforce law, not justice. Because justice doesn't exist - not as a set, objective reality, anyway. Everyone has their own notions of justice. But there is only one, universal law. It isn't perfect, but it's the best we've got.

The Supreme Canuck
2008-Jun-12, 07:13 PM
That's the crux of the debate. Some of us figure the job of a juror includes answering the question "Is it a just law or not?"

I understand. And, respectfully, I disagree. Here's why:

After the jury trial, which determines whether the law was broken, the case will get kicked up to an appeals court (if the law is controversial - say if there is a constitutional issue involved). After that, it'll probably get kicked up to the Supreme Court. So in the case of a controversial law - and if the defence argues that the law is unjust or unconstitutional from the get-go, it will be - it'll probably go right to the Supreme Court. Which is one of the "other avenues" that I mentioned. The purpose of the jury is to determine guilt or innocence. It's up to the defence or to a third-party intervener to challenge the law in a higher court.


And that's exactly what they are - avenues other than this one. :) And, of course, jury nullification isn't simply an avenue for "expressing discontent with a law," but for preventing someone from being the victim of an unjust law.

Again, that isn't the jury's job. That's up to the defence, interveners, and the Supreme Court. Also, what is the standard for an "unjust law"? Who decides what is just and what isn't? One juror? Or the majority of the electorate?

Matherly
2008-Jun-12, 07:36 PM
They aren't perfect; nothing can be.

Which is why jury nulification is a nessicary tool to prevent tyrrany. Trial by Jury is a fundamental check against the power of the government to take property, freedom, or life from the accused.

Drunk Vegan
2008-Jun-12, 07:47 PM
But that's democracy. The majority get to elect people to office. Those people write laws. If the public, on average, doesn't like the laws, they elect someone else and the laws are changed. It's a matter of averages and compromise. If more people believe that a law is good than believe it is bad, the law will probably stand.

This is the same voting public that re-elects the same person 95% of the time. On the basis of name recognition. Even if that publicity is the result of them being indicted the week before the election.

Personally I'd rather trust my own concept of justice over a system that's dominated by lifetime politicians who have no incentive to serve the public interest, and lobbyists who put laws in place at the behest of multinational corporations. People mistake democracy for mob rule, which it isn't. It's about as far removed from "by the people, for the people" that it can get and still be considered a Republic of any kind.

Larry Jacks
2008-Jun-12, 07:48 PM
A citizen of conscience has to consider the validity of the law. Consider the odious "Jim Crow" laws that grossly restricted the rights of blacks in the American South (and some not so southerly locations). Would you vote to convice someone of breaking one of those awful laws? I couldn't even if it was obvious. Those laws were fundamentally wrong. Nullification is the citizen's trump card over the tyranny of the majority. It should be used sparingly but the option to nullify an unjust law must remain with the citizens of a free country.

The Supreme Canuck
2008-Jun-12, 08:04 PM
Which is why jury nulification is a nessicary tool to prevent tyrrany. Trial by Jury is a fundamental check against the power of the government to take property, freedom, or life from the accused.

But this is not the proper place to express those sorts of things. The job of the jury is to find out what happened.


This is the same voting public that re-elects the same person 95% of the time. On the basis of name recognition. Even if that publicity is the result of them being indicted the week before the election.

Wait. You have a problem with the public's views when they vote, but they're more trustworthy when they're on a jury. That doesn't follow.


Personally I'd rather trust my own concept of justice over a system that's dominated by lifetime politicians who have no incentive to serve the public interest, and lobbyists who put laws in place at the behest of multinational corporations. People mistake democracy for mob rule, which it isn't. It's about as far removed from "by the people, for the people" that it can get and still be considered a Republic of any kind.

You'd trust your own concept of justice over the law. Okay. Most would. And that's the problem. If you get everyone on a jury following their own versions of justice, you'll always have a deadlocked jury. The only way for the system to work is if juries deal with law, not justice.

I think the problem here is that you're imagining yourself in this situation. Imagine someone who holds views that you would find evil in every way exercising jury nullification. That's why juries need to deal with law over justice.

Also, what separates mob rule from representative democracy is the rule of law. People don't get a direct say.

And as a note, democracy does not necessitate republic. Look at Canada, Australia, or the UK.


A citizen of conscience has to consider the validity of the law. Consider the odious "Jim Crow" laws that grossly restricted the rights of blacks in the American South (and some not so southerly locations). Would you vote to convice someone of breaking one of those awful laws? I couldn't even if it was obvious. Those laws were fundamentally wrong. Nullification is the citizen's trump card over the tyranny of the majority. It should be used sparingly but the option to nullify an unjust law must remain with the citizens of a free country.

I wouldn't be in that position. I would be invalidated as a juror since I wouldn't lie to the court about my strong opposition to those laws. But if I did somehow end up on the jury, the best I could do would be to abstain, since juries do not have the jurisdiction to determine the legitimacy of laws. They simply do not have the authority.

SeanF
2008-Jun-12, 08:07 PM
Juries must enforce the law. Justice is a slippery concept. What is just for me may not be just for you. This is why laws exist. They are objective. They are set. They are specific.
Why is this a restriction on juries and not, as you say, the Supreme Court?

The Supreme Canuck
2008-Jun-12, 08:29 PM
Why is this a restriction on juries and not, as you say, the Supreme Court?

I'm not sure I understand. It is a restriction for the court. Its job is to determine the constitutionality of laws. Justice doesn't come into it - except in the drafting of that constitution and in the interpretation of the constitution (what does a right to freedom of expression mean in this case?). Justices are selected by elected officials on the basis of ideology and of legal knowledge. This means that, in theory, the justices will be good enough jurists to understand the constitutional implications of a law as well as how the constitution should be interpreted in any specific instance. It also means that any decision calling for ideological input will likely conform with the government's and thus with the electorate's.

SeanF
2008-Jun-12, 08:45 PM
I'm not sure I understand. It is a restriction for the court.
Then what did you mean when you said "That's up to...the Supreme Court"?



And that's exactly what they are - avenues other than this one. :) And, of course, jury nullification isn't simply an avenue for "expressing discontent with a law," but for preventing someone from being the victim of an unjust law.
Again, that isn't the jury's job. That's up to the defence, interveners, and the Supreme Court.

The Supreme Canuck
2008-Jun-12, 08:54 PM
I see. The Supreme Court is indeed meant to protect people from unjust laws, just as juries are not meant to. That does not mean that the Supreme Court is supposed to bring personal notions of "justice" into these decisions. The justices are supposed to review the legislation and determine whether or not it violates the constitution. For example, there is a very straightforward test used in Canada to determine constitutionality known as the Oakes Test:


(For a violation of Charter rights to be upheld)

1. There must be a pressing and substantial objective
2. The means must be proportional

1. The means must be rationally connected to the objective
2. There must be minimal impairment of rights
3. There must be proportionality between the infringement and objective


There is a similar test for determining the constitutionality of police actions (the Collins Rules).

Now, certainly the justices are going to bring some personal biases in with them. But they can do that because they have the authority to interpret the constitution, were duly appointed by elected officials, and actually need to publicly justify themselves in their decision.

Juries are not appointed in a way that represents the electorate's views, do not have the authority to challenge laws or to interpret the constitution, and do not publicly justify themselves.

So. The Supreme Court interprets law. Some bias will creep in, but there are mechanisms to reduce the impact. And, assuming that you feel the constitution is just, the justices are there to ensure that all laws are in accordance with that constitution, and are thus just according to the framers of the constitution. If you don't think the constitution is just, it's amendment time.

SeanF
2008-Jun-12, 09:05 PM
And, assuming that you feel the constitution is just, the justices are there to ensure that all laws are in accordance with that constitution, and are thus just according to the framers of the constitution. If you don't think the constitution is just, it's amendment time.
Well, you're certainly right that the courts can only rule against a law if there's another law with higher authority (for example, the Constitution) that contradicts it. But to suggest "constitutional" as a fill-in for "just" is inappropriate; the Constitution is not - nor intended to be - that broad.

So, let me ask you this: Why juries in the first place? Why not just have judges determine the facts of the case?

Larry Jacks
2008-Jun-12, 09:34 PM
Being elected to office or putting on a black robe does not make one infallible. Personally, I see a lot of judges as little more than failed lawyers with political connections. They certainly have no corner on wisdom, nor should they be the final arbiters on justice.

Matherly
2008-Jun-12, 09:34 PM
But this is not the proper place to express those sorts of things. The job of the jury is to find out what happened.

Sez you. I sez the fundamental right of trial by jury is to answer questions of both fact and law.

geonuc
2008-Jun-12, 09:50 PM
Your previous post was that jury nullification was "not legal," not that it was "not OK." You say here that "there is little legal recourse against jurors for doing so," but I contend that there is no legal recourse against them, and it is therefore false to describe it as "not legal."

Not true. Just because legal means of recourse are limited (or totally absent, if you must), doesn't mean it's legal. The problem is proving that jury nullification took place and that a particular juror was guilty. If a juror were stupid enough to say that is what they did, then the legal system may be able to prosecute for violating their oath, or hold them for comtempt of court.

In my parlance, 'not OK' = 'not legal'.

SeanF
2008-Jun-12, 10:01 PM
Not true. Just because legal means of recourse are limited (or totally absent, if you must), doesn't mean it's legal. The problem is proving that jury nullification took place and that a particular juror was guilty. If a juror were stupid enough to say that is what they did, then the legal system may be able to prosecute for violating their oath, or hold them for comtempt of court.

In my parlance, 'not OK' = 'not legal'.
If the legal system could prosecute them - or hold them in contempt - for nullification, then it's not legal. But, in that case, legal means of recourse are not totally absent.

If legal means of recourse are totally absent - and, again, I'm thinking that's the case in Georgia - then it is legal.

Anything not prohibited by law is legal, geonuc. So if you can show me a Georgia statute that prohibits jury nullification, I'll acknowledge that you're right - and I'll wonder to the end of my days why the Supreme Court didn't cite it in Miller or Noggle - but absent such a statute, jury nullification is legal in Georgia.

Chuck
2008-Jun-12, 10:03 PM
An admitted case of jury nullification by jurors would present the authorities with an interesting decision. They'd like to declare a mistrial and get another shot at the suspect but they don't want the possibility of jury nullification to become widely known, so making a case out it might be opening the door to more of the same. Of course, if it's just one juror causing a hung jury then they already get a new trial. Would they really want to charge him with a newsworthy crime and let the public know that they can overrule the laws as long as they keep quiet about it? That would be very valuable information to the recreational drug using community.

Cougar
2008-Jun-12, 10:36 PM
Juries are not appointed in a way that represents the electorate's views, do not have the authority to challenge laws or to interpret the constitution, and do not publicly justify themselves.

Well, perhaps read Billy Budd (http://en.wikipedia.org/wiki/Billy_Budd) and then see if you feel the same way....

OK, I guess watching the movie would suffice. :)

HenrikOlsen
2008-Jun-13, 02:10 AM
In the USA a large proportion of accused criminals plead guilty, so it is mainly the difficult and contentious cases that get put before a jury. The plea-bargain system makes it very likely that someone who is at risk of being convicted by a jury will plead guilty rather than go before a jury.
You're forgetting the charge-bargaining system as well, which gets guilty people off early on guilty pleas on lighter charges because that will guarantee a guilty score for the prosecution.

This is fuelled by the system where only prosecutors with high conviction rates have a chance of getting promotions, which makes at least some of them charge with a lesser crime if that will guarantee a guilty score.

mike alexander
2008-Jun-13, 03:01 AM
All the legal furies seize you!
No proposal seems to please you,
I can't sit up here all day,
I must shortly get away...

Trial by Jury, indeed.

The Supreme Canuck
2008-Jun-13, 04:43 AM
Well, you're certainly right that the courts can only rule against a law if there's another law with higher authority (for example, the Constitution) that contradicts it. But to suggest "constitutional" as a fill-in for "just" is inappropriate; the Constitution is not - nor intended to be - that broad.

Again, I disagree. There's more to a constitution than just a document. I'm referring to the whole constitutional apparatus, here (it's a hard concept to parse in American jurisprudence since the US has and ostensibly fully-written constitution - which actually isn't the case). The pertinent bits of the constitution that I'm talking about here are the Bill (or Charter, depending on country) of Rights and the legal process.

The Bill/Charter puts forward big, broad rights that every law is supposed to conform to. Freedom of, say, belief is fundamentally just. Now, since these are so broad, it's up to the justices to interpret them. This is one of the primary purposes of supreme courts - to determine whether a law conforms to the notions of justice as enumerated in the Bill/Charter. It isn't a perfect conception of justice, by any means, but it's as close are we're ever likely to get.

The legal process part of the constitution is also important. Things like discretion over sentencing allow for a more just approach. It would be unjust to treat stealing out of greed and stealing out of need exactly the same; leeway in sentencing allows for the jury to find the defendant guilty in both cases while the judges can apply a different sentence to each. The jury determines guilt, the judge determines the sentence - hopefully, in a just manner.


So, let me ask you this: Why juries in the first place? Why not just have judges determine the facts of the case?In most cases, that's exactly what happens. Judge trials are much more common than jury trials. So, for the most part, I don't see much of a problem at all. Now, as to why we have jury trials at all, the point is to make it harder for the prosecution: they have to convince twelve laymen instead of one legal expert. It's a lot harder - that's why you generally see jury trials for the big cases, like murder or rape. The stakes are higher. Now, if the prosecutor can pull off a conviction in a difficult jury trial, we can be more certain that he's right than if he just convinces a judge. It's a way of ensuring presumption of innocence - make it harder for the prosecution, and if he still wins, it's a good bet he's right. Now, notice that even in these jury cases, the point is for the jury to determine guilt or innocence, not the justness of a law or whether or not a conviction in this particular case is just. The former is the Supreme Court's job, and the latter is the trial judge's job. It simply is not the place of the jury.


Being elected to office or putting on a black robe does not make one infallible. Personally, I see a lot of judges as little more than failed lawyers with political connections. They certainly have no corner on wisdom, nor should they be the final arbiters on justice.

Nevertheless, that's who we've got. By the same token, being elected or putting on a robe doesn't automatically make you incompetent, either.


Sez you. I sez the fundamental right of trial by jury is to answer questions of both fact and law.

I disagree. See above. Juries deliberate solely to determine the guilt or innocence of an accused. That is their only mandate.


Well, perhaps read Billy Budd (http://en.wikipedia.org/wiki/Billy_Budd) and then see if you feel the same way....

OK, I guess watching the movie would suffice. :)

Doesn't change my mind at all. First, this is military law, which is a whole different ballgame. Second, Captain Vere was not appointed in a way that represents the electorate's views, did not have the authority to challenge laws or to interpret the constitution, and did not publicly justify himself. I realize this was probably in jest, but still...

Kaptain K
2008-Jun-13, 04:49 AM
If you still don't like it, vote for someone who'll change it.

OK! Next time a seat on the US Supreme Court is up for election, I'll do just that! :whistle:

The Supreme Canuck
2008-Jun-13, 05:19 AM
OK! Next time a seat on the US Supreme Court is up for election, I'll do just that! :whistle:

Who appoints US Supreme Court justices? The President, as approved by the Senate. Who votes for those guys?

Who writes laws? Congress and the Senate, as approved by the President. Again, who votes for those guys?

Kaptain K
2008-Jun-13, 05:50 AM
Government of the people, by the lawyers, for the lobbyists (who bought and paid for the gov't they wanted).

Chuck
2008-Jun-13, 06:08 AM
People who think that the law should be obeyed as written until changed by our representatives should then believe that the underground railroad should not have helped runaway slaves to escape to Canada since that was against the law. The law was that such slaves should have been returned to their owners. Were the members of the underground railroad and the juries that refused to convict them doing the wrong thing? Should the slaves have been returned to the south to be beaten and then returned to the fields? That was the law, after all.

publius
2008-Jun-13, 06:33 AM
People who think that the law should be obeyed as written until changed by our representatives should then believe that the underground railroad should not have helped runaway slaves to escape to Canada since that was against the law. The law was that such slaves should have been returned to their owners. Were the members of the underground railroad and the juries that refused to convict them doing the wrong thing? Should the slaves have been returned to the south to be beaten and then returned to the fields? That was the law, after all.

And just remember, it took a bloody civil war to rectify that bad law, not elections. That's what generally happens when you don't have that elusive concept of "justice". All the lawyers, judges, and politicians don't do much good when that hits the fan. It's time for those with other, more primitive talents to secure our little butts then (or not).

And there is one school about that which hold the only rights, the only justice, that exists is what is written in a constitution or bill of rights. The other school is, to which I belong, is these are as much a part of the natural law of the universe as is her physics. Our understanding of them is flawed and incomplete, just as with our science, but it gets better and better. That is the school to which I belong.

IOW, a constitution, an architecture of government, must repsect this natural law, with its rights and justice. If it does not, then it is as invalid as any unjust inferior law made under its authority.

-Richard

geonuc
2008-Jun-13, 10:06 AM
Anything not prohibited by law is legal, geonuc. So if you can show me a Georgia statute that prohibits jury nullification, I'll acknowledge that you're right - and I'll wonder to the end of my days why the Supreme Court didn't cite it in Miller or Noggle - but absent such a statute, jury nullification is legal in Georgia.
I'll defer.

Larry Jacks
2008-Jun-13, 12:34 PM
Originally Posted by Larry Jacks
Being elected to office or putting on a black robe does not make one infallible. Personally, I see a lot of judges as little more than failed lawyers with political connections. They certainly have no corner on wisdom, nor should they be the final arbiters on justice.

Nevertheless, that's who we've got. By the same token, being elected or putting on a robe doesn't automatically make you incompetent, either.

I never said it did. However, the law is not the new religion and lawyers are not the new priesthood. I don't worship at the altar of the law nor do I bow and scrape before judges. Many of them are good people but more than a few aren't.

Gillianren
2008-Jun-13, 04:23 PM
The Civil Rights Movement didn't really depend on jury nullification. Indeed, many of its shining lights served jail time because it's a more effective way to protest an unjust law. When Martin Luther King, Jr., went to the Birmingham Jail and served his time, he drew more notice to the unjust law than if a jury had nullified and kept him out of it.

HenrikOlsen
2008-Jun-13, 05:03 PM
Which, given an intelligent jury, may have been a contributing fact to there being no nullification.

Bearded One
2008-Jun-14, 01:52 AM
I studied jury nullification a bit last year. It was prompted by a Grand Jury summons. I was just studying Grand Juries and juries in general and came upon the jury nullification arguments, Since it was for my own understanding I didn't save any links or notes.

It's an interesting concept and I found a lot of different opinions out there.

Personally, I think it's central to our system of justice and one of the reasons we have juries. One source called it "The final veto of the people". I like that interpretation.

It is downplayed today and I've read that many judges orientate their jury instructions to make it seem like it's not an option, often by simply not mentioning it, I've read some argue that it should be mandatory that juries are informed that they have that option. Nowhere have I read that it's illegal, however I've read that some judges threaten contempt charges should it be suspected. Others want to make it illegal.

Most of the arguments deal with juries refusing to convict. Since the defendant can't be retried, the decision stands. If, however; the jury does a reverse job and convicts despite sufficient evidence, then the defendant does have the right of appeal. So it's biased in favor of dismissal. That seems fair to me. It's better that a few guilty go free than an innocent person be convicted. It seems unlikely that any mass murderers are going to go free as a result because it's highly unlikely you will get 12 people to attempt to nullify mass murder as a crime.

It's not always the law that is an issue, it is the interpretation of the law to the circumstances. Laws are simple, situations are complex. Overall I would expect it to be a minor issue, rarely applied. If it does become applied frequently then I thinks it's a sign of a bigger problem.

Perhaps the law is unjust, perhaps the juries are idiots :lol:

Either way, it's an issue.

The Supreme Canuck
2008-Jun-14, 05:02 PM
And there is one school about that which hold the only rights, the only justice, that exists is what is written in a constitution or bill of rights. The other school is, to which I belong, is these are as much a part of the natural law of the universe as is her physics. Our understanding of them is flawed and incomplete, just as with our science, but it gets better and better. That is the school to which I belong.

Look, I understand what you're saying. And in an ideal world, I would agree with you. But I'm being pragmatic. I would love for laws and government to reflect whatever this cosmic, natural law justice is. But they can't. They can only approximate it. That's the best we can do, especially since discarding them means that we need to rely on individuals' differing conceptions of justice - we'd end up not only with imperfect understandings of justice, but different imperfect understandings of justice. At least this way we have a consistent system that can be changed through legal means.

It isn't perfect; it may not even be good. But it is better than the other option.

Chuck
2008-Jun-14, 07:51 PM
The right of a jury to overrule a law is part of the system, not something that's in conflict with it.

SeanF
2008-Jun-15, 01:03 AM
I would love for laws and government to reflect whatever this cosmic, natural law justice is. But they can't. They can only approximate it.
You know, TSC, I read this and think, "That's exactly why we need jury nullification." :)

The Supreme Canuck
2008-Jun-15, 05:10 PM
But the problem is that you have a minority (even one person) overruling the will of the majority as expressed through their elected representatives. Why is one (or at most, twelve) person's/people's conception of justice preferable to the will of the electorate? Why does your conception of justice get to override mine? Why does mine get to override yours? Because I happen to be on a jury, and you don't? And don't say "tyranny of the majority." There are safeguards built into the system which avoid that, without recourse to jury nullification.

I can give you good reasons why the will of the electorate should win out:

There are legal channels for minorities to challenge the will of the majority. Lobbying, appeal, and amendment. Heck, this is why opposition parties exist.

One consistent set of laws has to apply to everyone, equally. Even if they disagree with them - if everyone gets to live by their own rules, civil society breaks down.

Electing to live in a democracy means compromise - you understand that you need to live by the will of the majority; the trade-off is that you get to affect that will. You don't get to dictate it.

Chuck
2008-Jun-15, 06:25 PM
Since the voters don't seem to be asking their representatives to outlaw jury nullification should we assume that the majority is in favor of it and just accept it?

The Supreme Canuck
2008-Jun-15, 06:38 PM
I can accept that it is legal. I can accept that most people don't care enough either way to challenge it. But I can go ahead and say I don't like it, and you can go ahead and say that you do. That's one of the "other means" I'm talking about.

Moose
2008-Jun-15, 06:56 PM
But the problem is that you have a minority (even one person) overruling the will of the majority as expressed through their elected representatives.

Actually, in Canada, juries (in criminal matters) have to render a unanimous guilty verdict for that to happen. As such, it is very clear that the "will of the majority" was never intended to be at play in a criminal jury trial. In lawmaking, sure, but not in jury trials.

And this is as it is supposed to be. The judge presiding over the trial in which I participated explained quite clearly that certain safeguards (right to not be compelled to self-incriminate, right to a lawyer, reasonable doubt, not guilty until, etc) are built into a trial explicitly because "the state" has the advantage of procedure and overwhelming resources which they can use to convict you.

If the prosecution can convict despite the safeguards, including the red-headed stepchild Jury Nullification, then barring corruption, there's a reasonable expectation that justice may have been done. Jury Nullification, in my mind, is that final burst disk meant to prevent gross miscarriages of justice that can happen under a corrupt system.

Chuck
2008-Jun-15, 07:09 PM
I can accept that it is legal. I can accept that most people don't care enough either way to challenge it. But I can go ahead and say I don't like it, and you can go ahead and say that you do. That's one of the "other means" I'm talking about.
I don't think it's so much a case of people not caring about it as it is people not knowing about it. Judges have stopped telling jurors that they can do it. Sounds like our officials don't like it but don't think they can get rid of it, so they're trying to hide it. If they were being honest with us they'd let us decide by voting on it. They want us to give up something that they think we want to keep which means they want to rule us instead of represent us. This is another reason to keep it.

The Supreme Canuck
2008-Jun-15, 07:11 PM
The judge presiding over the trial in which I participated explained quite clearly that certain safeguards (right to not be compelled to self-incriminate, right to a lawyer, reasonable doubt, not guilty until, etc) are built into a trial explicitly because "the state" has the advantage of procedure and overwhelming resources which they can use to convict you.

If the prosecution can convict despite the safeguards, including the red-headed stepchild Jury Nullification, then barring corruption, there's a reasonable expectation that justice may have been done. Jury Nullification, in my mind, is that final burst disk meant to prevent gross miscarriages of justice that can happen under a corrupt system.

Well, if the judge specifically stated it, I'll have to bow to his/her superior knowledge. I've done further reading into it, as well, and I think I have to concede. Still, I don't like the idea of using juries as a forum to further a political agenda. It's way too open for abuse, I think. But I've recently found out that in Canada the Crown can appeal an acquittal, so I guess that balances it out.

Chuck
2008-Jun-15, 07:25 PM
One juror with a political agenda can cause a mistrial at worst. If all twelve randomly selected jurors have that same agenda then there's a good chance that it's justified.

The Supreme Canuck
2008-Jun-15, 07:26 PM
Again, now that I know an acquittal can be appealed, I'm okay with it.

Drunk Vegan
2008-Jun-15, 07:51 PM
There are legal channels for minorities to challenge the will of the majority. Lobbying, appeal, and amendment. Heck, this is why opposition parties exist.

If you'd ever voted in an American election you'd realize there's no such thing as opposition parties here. There's the Democrats and the Republicans, which are just two sides of the same coin to appeal to the largest market audience, and then there's the third parties, which would require both the Dem and Rep candidates to reveal they are in fact space aliens in order to win (and maybe not then, either).

The Supreme Canuck
2008-Jun-15, 08:03 PM
If you'd ever voted in an American election you'd realize there's no such thing as opposition parties here. There's the Democrats and the Republicans, which are just two sides of the same coin to appeal to the largest market audience, and then there's the third parties, which would require both the Dem and Rep candidates to reveal they are in fact space aliens in order to win (and maybe not then, either).

Well, by definition, the party not in power is the opposition party. That doesn't manifest itself on the presidential level in the US, but it does in Congress. Besides, frankly I'm referring more to Canada than the US. We currently have a minority government and three opposition parties in Parliament, as well as a few independent MPs.

mugaliens
2008-Jun-15, 11:11 PM
I've sat on two juries, and was very frustrated, both times, as most of the jurors were utterly incompetant, unable to discern the facts presented from their personal opinions, illiterate of the applicable laws (wanting to apply their own brand of justice for their own reasons), unable to be objective, and unable to follow any rational discussion, despite the attempts of the three or four of us who were doing it right.

I believe judges should be elected by the people, with set terms, and each judge should nominate 7 individuals to be a professional juror, with the public picking the top 7 (not twelve) for each court, with two "backup" juries to allow for vacations, sick leave, etc. Said jurors would be paid and would be randomly selected to sit in on the next case when they've finished with their current case.

It's a bit difficult to have a deadlocked jury when all 7 jurors must vote one way or the other. If one absolutely refuses to vote, they're fired, another juror is called in, reads through the record, is brought up to speed by the judge, and then casts his/her vote along with the others.

The judges will be required to periodically review the performance of the jurors, and if one is found to vote against what are clearly open and shut cases, the judges will vote on whether to keep the juror or dismiss him/her.

I believe the aforementioned system provides both the quality and the checks and balances which are so lacking in our judicial system today.

HenrikOlsen
2008-Jun-18, 06:31 AM
Well, if the judge specifically stated it, I'll have to bow to his/her superior knowledge. I've done further reading into it, as well, and I think I have to concede. Still, I don't like the idea of using juries as a forum to further a political agenda. It's way too open for abuse, I think. But I've recently found out that in Canada the Crown can appeal an acquittal, so I guess that balances it out.
I'm a bit confused here.
It's not ok that 12 appointed people can overrule the will of the people, (as expressed by their choice of the people who made the law), but it is ok for 1 person to do so based on an accident of birth?
How is that consistent with anything?

Or am I misunderstanding who you're referring to as the Crown?

Moose
2008-Jun-18, 08:51 AM
Or am I misunderstanding who you're referring to as the Crown?

You are, actually. "The Crown" (http://en.wikipedia.org/wiki/The_Crown) is basically another way of saying "the government" in countries that recognize a monarch but operate as a Republic. According to the wiki article, "The Crown" can be used to refer to each of Canada's provincial governments as well.

geonuc
2008-Jun-18, 08:59 AM
One juror with a political agenda can cause a mistrial at worst. If all twelve randomly selected jurors have that same agenda then there's a good chance that it's justified.
The jurors are not randomly selected (in the US).

Moose
2008-Jun-18, 09:31 AM
They're not randomly selected in Canada either, although the order in which they're considered is randomized. In my own experience, it was done by assigning a number to each member of the jury pool, then drawing each number from a hat (literally) until everybody knew in which order to appear.

We waited in a separate (empty) courtroom until a group of ten numbers was called, we'd line up, and the prosecutor and defense would look at us a moment and either "challenge" or "no challenge". If a juror wasn't challenged, they were selected. A challenge by either lawyer meant the juror could go home. Each side were permitted only so many challenges.

Extravoice
2008-Jun-18, 12:56 PM
They're not randomly selected in Canada either, although the order in which they're considered is randomized. In my own experience, it was done by assigning a number to each member of the jury pool, then drawing each number from a hat (literally) until everybody knew in which order to appear.

We waited in a separate (empty) courtroom until a group of ten numbers was called, we'd line up, and the prosecutor and defense would look at us a moment and either "challenge" or "no challenge". If a juror wasn't challenged, they were selected. A challenge by either lawyer meant the juror could go home. Each side were permitted only so many challenges.

That is very similar to the way it was done in New Jersey for the trial I was assigned. Jurors were selected radomly from the pool to go to the courtroom. First, we were given some information about the case (defendant, potential witness list, etc) and were given the opportunity to request to be recused (for example, if I knew the defendant). The remaining jurors were then randomly called to the jury box individually and asked a bunch of questions. Afterward, the prosecutor or defense lawyer could remove the potential juror. I believe there were a limited number of "challenges", but when asked how many, a Sheriff's officer simply said "lots."

The only thing that struck me as strange is that during the jury selection, the lawyers could remove ANY juror, not just the one who was answering questions. I guess they want to get the mix "correct," but it was like a giant game of whack a mole. Just when it looked like the 14th seat was filled, the lawyers would remove a previously accepted juror. It was very slow and painful process, taking over a week to complete.

Ironically, juror #1, who was the first person selected on the first day survived the entire selection process and sat through the trial, only to be selected as an alternate juror (randomly) before the jury started deliberations.

Chuck
2008-Jun-18, 02:21 PM
The jurors are not randomly selected (in the US).
That's even better. If the prosecution can dismiss some of them and all twelve that are selected still override the law then there's probably something wrong with that law.

Matherly
2008-Jun-18, 02:35 PM
It was slightly diffrent in Arizona.

In the trial I mentioned before (statutory rape, a felony) the entire jury pool was wedged into the courtroom. The judge started out with telling us the people and places involved in the case to make sure none of us had previous knowledge (it was reasonably well publicised, so a fair number had previous information). The judge then asked if any of the jurors knew each other (a few did). The lawyers then proceeded to ask questions of the jury in a "show of hands" sort of way. Typically, people who raised their hands were asked follow-up questions to decern their exact feelings.

For example, we were asked if we thought it should be legal for minors (under the age of 18+) to have sex. I raised my hand and was the first one called on. My response was simple: all things being equal (i.e. 2 minors of relativly the same age, consenual, etc.), I couldn't see how the government could stop minors from engaging in what was one of the strongest bilogical imperitives. Both lawyers were obviously happy with that response, because later that day I was enpanaled.

Lastly, the judge asked people if there was anything else we thought the court should know or if anybody had a problem with serving. There was the usual (small business owners with no one who could keep the business going for two weeks, a CEO who had an annual stockholders meeting, a preganant woman who pointed out she typically had to go to the bathroom a lot, etc.) and a few oddities (a woman who was familiar with the location of the incident- the lawyers let her on the jury to since they felt it didn't prejudice her).

Selection took about a half a day, with the trial begining the next.

geonuc
2008-Jun-18, 03:48 PM
That's even better. If the prosecution can dismiss some of them and all twelve that are selected still override the law then there's probably something wrong with that law.
Yes, you are correct. Although, keep in mind that the defense also has the right to challenge prospective jurors during voir dire, and it only takes one juror to override the law in any particular trial (the defendant in that case can be retried, though). Having all twelve jurors nullify the law would be mighty rare, I'd say.

The Supreme Canuck
2008-Jun-18, 05:16 PM
I'm a bit confused here.
It's not ok that 12 appointed people can overrule the will of the people, (as expressed by their choice of the people who made the law), but it is ok for 1 person to do so based on an accident of birth?
How is that consistent with anything?

Or am I misunderstanding who you're referring to as the Crown?

Moose's explanation is correct. The Crown refers to the government or to certain government bodies in Canada. In this case, it refers to the Crown Prosecutor as an agent of the Queen of Canada's government. In fact, all criminal cases in Canada are referenced as R v Defendant, "R" meaning "Regina" or "Rex" depending on the gender of the current monarch. You also run into phrases such as Crown Lands (public lands) and Crown Corporations (private corporations owned by the government, and used to perform public services - the post office is one such corporation). Since Canada is a federal state, all the provinces and the federal government have equal sovereignty over their particular jurisdictions. Thus, to distinguish these different "Crowns," they are referred to as "The Crown in Right of Canada," or "The Crown in Right of Alberta," for example.

Of course, to confuse things, The Crown can also refer to the monarch and related offices, and only refers to government and related offices since governments' authority is derived directly and solely from the Queen.

tdvance
2008-Jun-18, 05:44 PM
That is very similar to the way it was done in New Jersey for the trial I was assigned. ......


In PG County, MD, a group of about 75 potential jurors were seated in the courtroom. The judge would ask a question and say for example, "stand up if the answer is yes" . Then, "Of those standing, sit back down if ....." and maybe even again, and those remaining standing were brought to the bench to be individually asked questions and either (in almost all cases) released, or asked to return to the gallery. This continued until I was thrown out (well, released) so I didn't see how it ended--when there were 12 left, when they were out of questions, or if there were "tie breaker questions" from the lawyers or what.

I had been told by the lawyer sitting beside me in the gallery, "they don't like mathematicians or lawyers--we're both getting thrown off". He explained that the defense usually doesn't want someone who will evaluate the merits of the case logically and find the person "guilty" if they are beyond reasonable doubt. They prefer someone who can be swayed by other considerations.

Kebsis
2008-Jun-18, 06:21 PM
That is very similar to the way it was done in New Jersey for the trial I was assigned. Jurors were selected radomly from the pool to go to the courtroom. First, we were given some information about the case (defendant, potential witness list, etc) and were given the opportunity to request to be recused (for example, if I knew the defendant). The remaining jurors were then randomly called to the jury box individually and asked a bunch of questions. Afterward, the prosecutor or defense lawyer could remove the potential juror. I believe there were a limited number of "challenges", but when asked how many, a Sheriff's officer simply said "lots."

The only thing that struck me as strange is that during the jury selection, the lawyers could remove ANY juror, not just the one who was answering questions. I guess they want to get the mix "correct," but it was like a giant game of whack a mole. Just when it looked like the 14th seat was filled, the lawyers would remove a previously accepted juror. It was very slow and painful process, taking over a week to complete.

Ironically, juror #1, who was the first person selected on the first day survived the entire selection process and sat through the trial, only to be selected as an alternate juror (randomly) before the jury started deliberations.

My brother was sequestered in Bergen county last year, and he told me recently that both the defense and prosecution are allowed to strike six jurors each. He was telling me that because of this, it was important for him to keep count of how many jurors each side had struck, so he would know whether he should try and play up the defense or the state in order to get off the panel. I guess it didn't work very well for him though because he ended up on the jury anyway. I don't know how he went about finding out how many jurors can be struck though.


This thread comes up at an appropriate time, considering that I just got a jury duty notice in the mail the other day. For July 17th, no less (that's my birthday). Luckily I explained to them the situation and they gave me a new date.

tdvance
2008-Jun-18, 06:29 PM
Not that you could prove it if you're careful, but my jury summons had some note to the effect that it was a felony to attempt to manipulate or trick your way off the jury (I forgot the exact wording). I'm sure it's to make people think twice before saying, "Of course I'll consider all the evidence before finding that worthless thug guilty!"

Extravoice
2008-Jun-18, 07:52 PM
I had been told by the lawyer sitting beside me in the gallery, "they don't like mathematicians or lawyers--we're both getting thrown off". He explained that the defense usually doesn't want someone who will evaluate the merits of the case logically and find the person "guilty" if they are beyond reasonable doubt. They prefer someone who can be swayed by other considerations.
(my emphasis)

This thread has had an interesting discussion on jury nullification, but I have to wonder if many of the cases I mentioned in the original post resulted in hung juries because of the reason you mention.

The Supreme Canuck
2008-Jun-18, 11:54 PM
See, now, lawyers can never serve on a jury in Canada. They aren't allowed. Nor are judges, law students, firefighters, doctors, veterinarians, and a bunch of others. I don't know what the justification is.

Moose
2008-Jun-19, 12:31 AM
Lawyers, judges, law enforcement, and law students are fairly obvious. There's too much potential for meta-bias and/or conflicts of interest, or at least the appearance of meta-bias and/or conflict of interest.

Firefighters, doctors, and possibly veterinarians would be justified, I suspect, as "essential personnel" by default, and potentially subject to having to be excused on very short notice for emergencies/disasters.

The Supreme Canuck
2008-Jun-19, 12:35 AM
I looked it up - the list is less extensive than I thought. For some reason I recall there were some weird ones on there that aren't. Like engineer.