Posted on 08/07/2015 9:09:00 PM PDT by george76
Jury nullification occurs when jurors choose not to convict a defendant they believe to be guilty of the offense charged, usually because they conclude that the law in question is unjust or the punishment is excessive. When I first thought about jury nullification as a young law student, I was inclined to be against it. Yes, it could potentially be used to curb unjust laws. But it can also be a vehicle for jury prejudice and bias.
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legal scholar Glenn Reynolds provides a strong defense of nullification. As he points out, the sort of discretion exercised by nullifying jurors has much in common with prosecutorial discretion. and can be justified by many of the same considerations:
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As Reynolds points out, jury nullification is supported by longstanding Anglo-American legal tradition, and was considered a vital check on government power by many of the Founders. The case for jury nullification today is strengthened by the enormous growth of modern criminal law, which has expanded to the point where almost all of us are guilty of some crime or other (an issue that Reynolds himself has written about). In a world where almost everyone is a criminal, there is already enormous arbitrariness, because prosecutors can only go after only a small percentage of the many perpetrators. Jury nullification is unlikely to make that situation worse than it already is.
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Reynolds’ column was partly inspired by a recent case where a jury nullification advocate was charged with jury tampering for handing out pro-nullification leaflets outside a courthouse.
(Excerpt) Read more at washingtonpost.com ...
I was a Prosecutor for 25 years. I saw nullification perhaps, I dunno, 5 or 6 times. Some Prosecutors loathed it. Others, like myself, saw it as seeing it’s foundations in the fundamentals of our Constitution and Founding Fathers. It is THE absolute, 100% last and best defense against tyranny. Guns? Give me a break. They have tanks, drones and technology galore. But nullification? That they can never stop. That is the one and only thing that terrifies the State, both local and Federal.
I and others had great respect for it. Made for some pretty heated arguments in the cafeteria I can tell you.
I sat on a jury that essentially went very south during deliberations. It was my first experience as a juror, and I did not do some things that I wished I had done.
If I could get a do-over I believe there could have been a mistrial for juror misconduct.
Having witnesses what took place during that deliberation, I question jury nullification. You get a few loose canons in there, and the situation gets corrupted very quickly.
I have no idea how often this sort of thing happens, because this is a secretive thing, jury deliberations.
The evidence didn’t matter. The jury foreman brought information in contemporary society into the jury room. None of the other jurors objected.
If Leftists wanted to, they could create havoc in our courts. I left that situation behind very unsettled about it.
When the OJ jury lets him loose, I’m against it.
When a thoughtful group of 12 stands up to government tyranny, I’m for it.
How do we get less of the first and more of the second?
“But nullification? That they can never stop.”
Actually the state has stopped nullification which is why you only saw it so few times in your career. They stopped it via the jury selection process. No one is judged by a jury of their peers anymore, but rather they get a least common denominator jury.
I get your point. I just don’t agree. The problem is:
1. Juries don’t know about it and
2. WAY to many jurors are overwhelmed by the process and have the “if you didn’t do it, you wouldn’t be here” attitude.
Indeed. I have talked to many a juror “unsettled” by the process. I truly admire jurors who are thrown into a world the don’t understand and for which they have no experience and yet feel honor bound to do the best they can.
I, too, was flummoxed by the O.J. jury’s decision. But a couple of years later, loads of gangbangers were turned loose because of L.A.P.D.’s falsifying of evidenence—apparently a widespread practice. The jury’s decision was not as irrational as it seemed. I still think they got it wrong, but I now understand their doubts about police honesty.
We had a guy that was clearly lying through his teeth.
His story didn’t make sense. There were glaring conflicts in his own accounting of events. Then he tried to turn the criminal activity back on the police. “They were the ones that committed that crime, not me.”
It was clear to me that the officers had caught the guy dead to rights.
He was charged with soliciting a police officer in a park restroom. His accounting of his activity in the situation left you scratching your head.
He lied about where he was arrested.
At any rate, the juror selected as the foreman discounted the officers testimony “because all officers lie”. No evidence was presented in the trial along these lines. And then he brought up a criminal complain against about 17 officers in a neighboring city for falsifying evidence, to buttress his argument.
1. This was not presented in the trial as evidence
2. The outcome of the charges against those officers was not given
3. He tied this to the police in our case, and said we couldn’t believe them.
He brought up other bogus explanations for all the idiotic claims the defendant had made. The rest of the jurors fell for it.
Very little of what the defendant’s story made sense to me. It just went against the grain.
As I left the courtroom, about half the jurors were standing around the defense attorney with glowing eyes and mouths open.
It was revolting all the way around.
There isn’t anything that can be done to prevent jury nullification should a jury wish to acquit a defendant. The legal issue concerns whether a party should be permitted to openly request it. The current answer is no.
THOMAS JEFFERSON (1789): I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.
Jury nullification is the last refuge of a citizeny against a corrupt judicial system. Short of rebellion.
“I just don’t agree. The problem is:
1. Juries don’t know about it and
2. WAY to many jurors are overwhelmed by the process and have the “if you didn’t do it, you wouldn’t be here” attitude.”
Gee I wonder if 1 or 2 or BOTH could be related to the jury selection process?
Whenever I’m called for jury duty I always get in some blurb about not following the judge’s instructions if I either don’t believe what the defendant did should be against the law, or if I believe that following the instructions might result in a miscarriage of justice.
I’m usually excused without either side having to waste one of their preempts.
Partly FR is the answer. If we get on the jury for a bad law, we need to push for nullification. To put it mildly, I would be skeptical in any case of gun law violations or other violations of laws that should never have been passed. That gives us more of the second.
revolt, not rebellion. revolt is citizens rising up against unjust govt tyranny. rebellion is unlawful attacks on sound, just government.
ex. the american revolution versus the communist overthrow of the czar.
You are correct. If a prospective juror, during voir dire, shows that he knows about jury nullification and fails to agree to follow the judge’s instructions unquestioningly, he will be excused at once. If a juror, once seated, then attempts nullification, he will be liable to a charge of perjury, for having agreed under oath to obey the judge and then not doing so.
The first case has happened to me.
If you had watched the trial, you would know the prosecution did not prove their case. The jury got it right. Yes, it's easy now to say OJ was guilty--everyone knows he was guilty--but if you had been OJ and innocent, you would be very pleased with the result. Seeing that trial gave me a lot more respect for our jury system and juries in general.
The case about jury nullification that I learned in law school (I am not a lawyer) regarded Viet Nam war protestors, and the jury giving them a pass for trespassing. The lefties (and there were many) in my class were loving on it. I just bit my tongue, thinking, “your time will come.”
Actually, there is one state that explicitly allows counsel to provide information regarding nullification: NH.
Jury duty is about the only reason why I remain registered to vote. Although I don’t think there is a chance in hades of my ever ending up on a criminal jury.
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