Posted on 03/17/2012 7:49:03 AM PDT by Chuckmorse
About a year ago, I was called upon by the county of Norfolk in Massachusetts to serve on a jury. I reported for jury duty at the District Court in Quincy, Mass. Before the selection process, in which I was not picked, I, along with my fellow potential jurists, was shown a film that was supposed to inform me of my responsibilities as a jurist. This film was misleading to say the least.
Through vagaries and sophistic sleight of hand, the film, which involved instructions from a local judge, prosecutor, and lawyer, left the impression, without a direct statement, that the juror was subordinate to the judge. This impression is false and a misrepresentation of the meaning and purpose of our jury system. The juror, in a criminal case, is sworn to render a verdict of guilty or not guilty and no judge or lawyer has a right to interfere in any way. It is also a little known fact that the juror is empowered to judge the legality and constitutionality of the law upon which the case is based.
The responsibility of a juror can best be summed up in a statement by John Jay, the first Chief Justice of the U.S. Supreme Court. He stated, in 1789, that "The jury has a right to judge both the law as well as the fact in controversy." This means that a juror judges both the merits of the case and the law upon which the case is based. A juror, by voting not guilty, can literally void a law. The misconception is that any law passed by a legislature constitutes the law of the land. Theoretically, a single juror can nullify a law concerning gun control, drug regulation, hate speech, or other legislation.
The sitting juror, in judging a controversy, is also empanelled to examine the law upon which the controversy is based. In this regard, he holds the power to undo a law enacted by Congress, the President, or the Judiciary. Harlan Stone, 12th Chief Justice of the Supreme Court, in 1941 stated "The law itself is on trial quite as much as the cause which is to be decided." In addition, Oliver Wendell Holmes, U.S.Supreme Court Justice, in 1902 stated "The jury has the power to bring a verdict in the teeth of both law and fact."
The Minneapolis Star and Tribune, in an article published Nov. 30, 1984, discusses the history of the jury system. The article says "At the time of the adoption of the Constitution, the jury's role as defense against political oppression was unquestioned in American jurisprudence." In the early years, American citizens understood that in the course of enforcing a law, the government would have to get permission from a panel of common citizens, who, when empanelled as a jury, make up a sort of peoples Congress. This was seen as an essential part of the system of checks and balances. The government was "checked" by the jury from enacting oppressive laws. This continued until the Fugitive Slave Act of 1850 which required juries in free states to render judgments that would result in escaped slaves being forcibly returned to slave owners. Juries in the North were beginning to refuse to convict in these cases on the grounds that this law was an interference by the Federal Government in states rights and that it was unconstitutional. Judges responded with a process of eroding the institution of the free jury over time.
Today, according to the Minneapolis Star article, juries are not informed of their right to return a not guilty verdict regardless of the facts. The article goes on to state that "As originally conceived, juries were to be a kind of safety valve, a way to soften the bureaucratic rigidity of the judicial system by introducing the common sense of the community. If they are to function effectively as the 'conscience of the community' jurors must be told that they have the power and the right to say no to a prosecution in order to achieve a greater good."
Citizens called to jury duty should understand the sacred trust placed in them. They should be made aware of the nature of their office and they should exercise that responsibility as it was meant to be exercised which was in the service of freedom. They should be apprised of the full extent of their responsibility to do justice not only in the specific case at hand, but for the community, and the nation as a whole.
While jury nullification is, obviously, an individual authority of a given juror, what is far trickier, and treading on thin ice legally, is to “advocate particular nullification” to a community of potential jurors. That is, a real effort to nullify a law by making it unlikely to obtain a conviction:
1) First a given law must be seen as unconstitutional, improper, or most of all unfair. The community must as a majority or strong enough minority oppose it. That is, it must be a law forced by a government or court that is seen as repulsive by the public.
2) Someone must advocate nullification for any and all cases brought under that law, no matter how sympathetic or unsympathetic a defendant might be. People prefer to vote “guilty” or “not guilty” based on their prejudices about the defendant. They must be persuaded to look beyond this, to acquit a “loathsome person”, because it is more important to nullify a bad law.
3) Lawyers and judges will dismiss potential jurors on the first sign they support, or are even aware of jury nullification. So it is essential that nullifiers *never* admit to nullification. They must know this ahead of time, or they will never get a chance to nullify. So this is an essential part of “advocating particular nullification”.
4) Importantly, this has been done before successfully several times in US history. In most cases, the best that can be hoped for is not to overturn a law, but for it to become disused by either the police or prosecutors. Once they stop arresting and trying people, knowing that they will not get a conviction, they will stop doing so, and the law will become moot under the principle of “statutory neglect.”
“Yup, they couldn’t bounce me fast enough either. The defense attorney asked me, “Juror #1, how do you FEEL about Assault and Battery?” I said, “I believe it is wrong.”
Makes sense to me. What answer do you think they were looking for?
Well, good for you.
Been called a number of times - only served once. The Judge in S. Mississippi made it clear that it was in our hands and that we had enormous control over what happened, which made it crucial that we understood the oath we took and were willing to rule with our minds and in accordance with the law. Happy to say we put an animal behind bars.
That's the most often cited case concerning jury nullification, and that's not at all true. The OJ Simpson jury wasn't nullifying the crime of First Degree Murder (saying "murder is OK!"), but rather a predominantly black jury declaring someone should go free because he's a famous black person.
"Putting one over on the man" is not the same thing as "jury nullification." It is, however, racist in the extreme.
People have the mistaken idea that Jury Nullification cancels the law - it does not. It merely removes it from consideration for the one specific case.
No it was not what happened in the Simpson trial. In that case the chance of innocence was conclusively, without challenge, 3/infinity and those theoretical three were not associated with the victims. Practically speaking that means both asides agreed, one by proof and the other tacitly, that the chance of innocence was zero. The jury knew that too. The statement they made was that the white bi-ch deserved it. If that’s jury nullification, OK....so be it. I didn’t think Nicole deserved it, but that’s just me. Oh, I am an attorney in practice and academia; specialty field-science in the courtroom.
That is what I think happened, and to me it is jury nullification.
The jury couldn't say yes, we believe he did it, but we think it was justified, and we don't want him punished.
The sentence is up to the judge, and not the jury so the easiest way out is "Not Guilty."- Tom
It’s the place of counsel to object, not the witness. The judge would have shot you down quickly, and had you continued you would have rightfully spent a night or two in the company of vomiting drunks.
You and your fellows were potential jurors, not potential jurists (unless you were taking the bar exam, which was obviously not the case). Probably a good thing you were dismissed.
The problem with the above idea is that it would require lying under oath. When asked under oath about jury nullification, the only choice for a man with any honor at all is to tell the truth. A man willing to lie under oath about anything so simple, will surely lie under any and all circumstances where he sees benefit to himself.
True. There seems to be some misconception that jury verdicts play a role in stare decisis, and they do not.
dagogo redux said he was being deposed, not giving testimony in a courtroom.
A witness’s job is to answer questions, not ask questions.
Counsel will naturally attempt to discredit the opinions of the other side’s experts. There’s no need to be rude in doing so, however.
Ah, but that is the paradox. They will *never* ask you under oath about jury nullification, because that would both remind those who have heard of it about it, and would be a question to those unfamiliar with it, who would ask a question that the court does not want to answer.
What trips nullifiers up is if they *volunteer* that they know about nullification. In many courts if a prospective juror even *mentions* nullification, they will treat it as if the entire jury poor within earshot are tainted. They won’t punish the person who used the word, though they would like to, they can’t, but they will try to reset the process to get an “ignorant” pool of jurors.
What I proposed earlier, and why I suggested that there was risk involved, is because many courts are so opposed to the concept of nullification, that if someone set up a website, for example, that called for the use of nullification to overturn a bad law, they might actually get arrested.
Here’s one nullification advocate that got busted, while doing something clearly legal:
http://reason.com/blog/2011/02/25/is-advocacy-of-jury-nullificat
The reason we have freedom of the press, such as it is, is because of an act of jury nullification, the John Peter Zenger case.
The principle of presumption of innocence is rooted in common law. The defendant is treated as if he were innocent; e.g., he is not unlawfully detained, and he does not appear in shackles before a jury. This presumption means the state has the affirmative duty of proving guilt to some standard, and in the absence of doing so for each element of the crime, the defendant is to be found not guilty.
"Presumption of innocence" doesn't mean to ask jurors to believe a defendant is innocent. They're to keep an open mind until hearing all of the evidence, weighing the credibility of the witnesses and their testimony, and freely discussing the case with their fellow jurors before reaching a verdict.
Well, I admit that I’m not an advocate of jury nullification. IMHO, that places way too much power in the hands an individual who’s agenda may or may not be reasonable. The potential for abuse far outweighs any possible benefit nullification may offer. Those who support nullification should rightfully be excluded from juries as far as I am concerned.
So never admit that you know anything.
Being knowledgeable about a case will get you removed.
Ignorance of what is going on will get you enpaneled in most cases.
Then the court will make sure the jury is totally ignorant of the defendants background. If you are siting on an armed robbery case and the defendant has been convicted 3 previous times for armed robbery, you will not know about it until you have reached a verdict. That works well for the guilty but not for the citizen on trial who has no criminal record.- Tom
Which brings us to the topic of sequester. How is that legal?
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