Hey, you know what’s fun? Having the jury nullification argument again!
Over at Pattycakes.
Lemme ‘splain. No, there is too much. Lemme sum up.
See, if you think that there is a rational and lawful basis for jury nullification, you’re retarded. If you think that judges should decide the law while juries decide the facts, you’re just following orders and a Nazi. Does that cover it?
Any way, my thoughts are that juries should be fully informed on matters of fact, law and, hell, legal strategy. But the courts don’t do that. In fact, if a lawyer looked at jury and said Guys, you can just decide this is bullshit then what’s going to happen to him? We can’t, after all, have the people judging the law. There’d be anarchy!
I refer you to this bit:
Yeah, the cops have discretion aplenty on whether to arrest or merely warn you. The Prosecutor’s office has discretion aplenty on whether to charge you for a crime or crimes (and what charges to bring, and what penalties to ask for). The judge is a tinpot god in his own courtroom.
But if the JURORS show the slightest bit of independent thought, civilization will collapse into flaming ruin.
I find jury nullification is a valid means of essentially countering particularly odious laws, like say prohibition or someone getting sentenced to 30 years for selling weed.
The other issue that gets bandied about by people who are not fans of jury nullification is that you, pesky troublemaker, took an oath to uphold the law! And if you renege on that then you’ve perjured yourself. Having read a sample oath, I don’t buy that argument. I see no prohibition in there stating that judging the law is verboten. Even if it did, taking an oath to uphold the law is not going to override my moral convictions. And I’m not saying I’d lie to get on jury.
January 22nd, 2008 at 11:16 am
I see Jury Nullification as not only a way to reject odious laws, but also a way to remind prosecutors to not be so over-reaching. I mean, a DA might be well within the law to charge a person with Manslaughter for a death resulting from what is clearly an accident, but it does mean that a DA should do so. A lesser charge may also be appropriate and a better representation of justice.
Jury nullification is the way for the people to remind the Judiciary who they really work for.
January 22nd, 2008 at 12:04 pm
Not necessarily. If you believe that the only laws you are obligated to follow are the ones you like, that makes you an anarchist, not necessarily a retard. If you argue like straightarrow on any topic, pro or con, you are retarded. If you argue like straightarrow in favor of jury nullification, you are a retarded anarchist.
I don’t see how anyone (other than, say, a retarded anarchist) could not read that as a prohibiting jurors from judging the law (unless, of course the judge actually instructed them to do so, which he won’t do, which would be judicial misconduct if he did).
January 22nd, 2008 at 12:15 pm
I can. Even more interesting is the TN state constitution specifically says jurors have a right to judge both fact and law. So, if a judge instructs me otherwise, is the judge breaking his oath or guilty of misconduct?
January 22nd, 2008 at 12:43 pm
From the “sample oath”:
And here I thought you were supposed to bring your life’s experiences into your considerations; silly me.
Seems to me that saying a juror has a “right” to judge the law as well as the facts of a case is not strong enough: it is a moral duty to do so. No juror should (ever) abide an immoral “law” (or the immoral application of a moral law). And just to be clear: passage of a law is not, in and of itself, sufficient to prove a law to be moral.
January 22nd, 2008 at 1:56 pm
How? Either you agree to render your verdict “according only to the evidence presented to you and to the instructions of the court,” or you don’t. If you do, the only way you get to judge the law itself is if the judge was enough of a bonehead to allow evidence for/against the law to be admitted as evidence, and then only if he instructed you to judge the law.
More interesting still is the implication that compliance with the Tennessee Constitution would have excused juror misconduct in a federal courtroom located in California, but let’s ignore that detail for the moment. The closest thing I could find in the Tennessee Constitution to saying jurors can “judge” the law is Article I, Section 19, which reads in full:
Determining the law implies some degree of interpretation as to what the law means, not “judging” it as constitutional vs. unconstitutional or, worse, good vs. bad. Equally important is that this power is made expressly subject to “the direction of the court,” presumably giving the judge pretty broad leeway in limiting your ability even to interpret the law, let alone to “judge” it.
January 22nd, 2008 at 1:57 pm
BTW, your system clock is an hour ahead.
January 22nd, 2008 at 2:01 pm
Huh? Seriously, I am supposed to go in and not remember anything I may know about the law? Unpossible. Unless I’m retarded.
Without further research, I’m sorry but the rest of that sounds a lot like the collective rights mythology pushed by anti-gunners.
Yeah, but only for 6 months of the year.
January 22nd, 2008 at 2:27 pm
Question: Can a judge punish a juror for voting a certain way? I believe in all cases the answer is no, so I believe that “jury nullification” exists.
I can tell you there are many applications of laws that I would normally agree with that I’d nonetheless refuse to convict on. A 40 year old guy porking a 14 year old? No problem. Lock him up. An 19 year old and a 17 year old? Not convicting.
I do think citizens have a right and duty on juries to act as a check against the prosecutorial power of the state, especially since many states don’t use grand juries to issue bills of indictment. Almost every law has the possibility of absurd applications that citizens need to prevent.
But I don’t think that means it’s proper to stand in judgment of any law with which you personally disagree. A good test is, if you’re the lone guy on the jury who’s holding out, you’re probably out farther on the limb than you should be. There might be circumstances where that wouldn’t be the case, but I think there should be a presumption to not hang a jury. If 11 of your fellow citizens are OK with a certain law, or a certain law’s application, then I think a juror needs to think long and hard about how “right” he might be.
January 22nd, 2008 at 2:34 pm
The Constitution for the State is the Supreme Law within that State, Yes or No?
If the State Constitution specifically protects the right to judge the law as well as the facts but the juror’s oath prohibits judging the law, which is the law to follow?
How many states have a protection within their Constitutions protecting jurors rights? (seems like it was 40ish I know I posted a list in a comment on Xlrq’s site a while back.)
January 22nd, 2008 at 8:49 pm
Geez xlrq, you get really peevish when you lose a debate, don’t you? And I haven’t called you one name.
I guess if it makes you feel better to call me retarded, go for it. But just remember you lost a debate on your supposed field of expertise to a retarded layman. I don’t think if I were you, that I’d broadcast the mental deficiencies of a man proven to be smarter than myself. If I were you. Obviously I’m not, so go ahead,
January 22nd, 2008 at 8:51 pm
+1 for jury nullification. -1 for jury duty.
January 22nd, 2008 at 9:11 pm
Right, Straightarrow, I “lost” the debate, as has everyone else who’s made it through at least a semester of law school without flunking out. As for name-calling, Uncle was the one who brought up the word “retarded,” I merely clarified that it applied only to your incredibly bad level of debate, not necessarily to all who share your opinion on jury nullification. Either view would have labeled you as a retard, so from your perspective, it’s a wash.
January 23rd, 2008 at 1:23 am
You aren’t just an intellectual coward, you are also a moral coward. And either you are a liar,or an idiot. the one cite you posted in the earlier debate did not say what you said it did. I pointed that out, you bailed except for name calling.
I am certainly surprised that one can get an LLD with study no deeper than Cliff Notes, but hey, you’re the proof.
If you are too cowardly to deal with the truth that is normal for your profession. That doesn’t mean those instructors that would have flunked you out were telling you the truth. The fact that you can read the same words they refer and interpret them opposite their meaning speaks more to your character than your intelligence. You were obviously smart enough to get in the club. Just not moral enough to admit you lied for the right of inclusion.
And yes, you lost the debate. Not because I am a great debater or have intelligence, you lost because the truth was against you, and you could not disprove it.
There,there , now, bwess ’ems widdle heart. God luv ‘im.
January 23rd, 2008 at 11:02 pm
Not factually retarded, just procedurally retarded. You don’t have to forget all the crap you “know” about the law, you just have to mentally set it aside and follow the court’s instructions rather than the instructions you personally think the court should be issuing. Judges are very good at compartmentalizing that way. Juries, not so much.
“Sounds like” is not a substantive argument, one way or the other. Collective rights mumbo-jumbo has no basis in the text of the Second Amendment. Pointing out that your right as a juror to determine (not “judge”) the law is subject to the court’s direction is not the result of any mumbo-jumbo; it’s built right into the Constitution itself. A better analogy would be to the wimpy version of the RKBA in the English Bill of Rights, which merely protects the rights of Protestants to keep weapons “as allowed by law,” with no further qualification as to what that law may or may not say.
January 24th, 2008 at 12:48 am
He concluded his opinion in these words: ‘I consider it of the greatest consequence to the administration of justice that the powers of the court and the powers of the petit jury should be kept distinct and separate. I have uniformly delivered the opinion ‘that the petit jury have a right to decide the law as well as the fact in criminal cases’; but it never entered into my mind that they, therefore, had a right to determine the constitutionality of any statute of the United States.’ Whart. St. Tr. 713, 714, 718.
And still did he not disavow the opinion he uniformly delivered.
But it must be observed that, by the same law which recognizes this reasonable distribution of jurisdiction, you have, nevertheless, a right to take [156 U.S. 51, 65] upon yourselves to judge of both, and to determine the law as well as the fact in controversy.
“If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant’s natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.” — Chief Justice Harlan F. Stone
If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence. — 4th Circuit Court of Appeals, US v Moylan, 1969
The jury has the power to bring in a verdict in the teeth of both the law and the facts. — Justice Holmes, Homing v District of Columbia, 138 (1920)
It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the directions of the court.– John Adams
It certainly does! At the time the Constitution was written, the definition of the term “jury” referred to a group of citizens empowered to judge both the law and the evidence in the case before it. Then, in the February term of 1794, the Supreme Court conducted a jury trial in the case of the State of Georgia vs. Brailsford (3 Dall 1). The instructions to the jury in the first jury trial before the Supreme Court of the United States illustrate the true power of the jury. Chief Justice John Jay said: “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision.” (emphasis added) “…you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy”.
As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an ” unreviewable and irreversible power… to acquit in disregard of the instructions on the law given by the trial judge…. (US vs Dougherty, 473 F 2d 1113, 1139 (1972))
“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision.” (US vs Moylan, 417 F 2d 1002, 1006 (1969)).
The jury has the right to judge both the law as well as the fact in controversy.” -John Jay, First U.S. Supreme court Justice, 1789.
“The jury has the right to determine both the law and the facts”. Samuel Chase, U.S. Supreme Court Justice, signatory of the Declaration of Independence, 1796.
“…juries are not bound by what seems inescapable logic to judges…” U.S. Supreme Court, 1952.
Horning v. District of Columbia, 41 S.Ct. 53, 54 (1920), where Justice Holmes stated, “[T]he jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts . . .” This directive has been recognized by this court in United States v. Burkhart, 501 F. 2d 993, 996-97 (6th Cir. 1974), where we approved a district court’s instruction that the jury consider only the facts and law before them. In light of Horning, Avery, and Burkhart, we are compelled to approve the district court’s refusal to discuss jury nullification with the jury. To have given an instruction on nullification would have undermined the impartial determination of justice based on law.
The above is the citation that most closely supports your view, yet they did affirm the jury’s right to find a verdict in teeth of the law. The decision actually stated a judge does need not inform the jury of this right and the upheld the judge’s instructions omitting such, though asked by the defense to so inform the jury. They held that his omission of this information in his instructions was not reversible error and further held that by not so informing the jury the judge avoided undermining th impartial determination of justice based on law. Nowhere did they disaffirm the jury’s right to find in the teeth of the law.
January 24th, 2008 at 7:59 am
Actually, they didn’t. Read the cases more carefully, and you’ll notice a pattern: most of the quotes that come from court rulings, and all the quotes from the past century, acknowledge the jury’s power to nullify, they don’t assert that it has a “right” to do so. If they thought the jury had a right to nullify, they would not simultaneously uphold jury instructions that say the opposite, or voir dire questions aimed at keeping out jurors inclined to exercise that “right.” It makes no sense to say “[t]o have given an instruction on nullification would have undermined the impartial determination of justice based on law” if the court believed that nullification was part of of the law juries are supposed to be following.
January 25th, 2008 at 12:33 am
actually you obfuscate. they used both words,” power” and “right”.
If I were a guessing man, I would guess you are a part-time prosecutor with an axe to grind.
If they thought the jury had a right to nullify, they would not simultaneously uphold jury instructions that say the opposite,
They did not uphold jury instructions that say the opposite. Not in any of those cases. The closest they came was when they held the judge was not required to inform the jury of their right or power to nullify. They did not hold that the right or power did not exist. …… United States v. Burkhart, 501 F. 2d 993, 996-97 (6th Cir. 1974), where we approved a district court’s instruction that the jury consider only the facts and law before them.
Now here is the part where the court obfuscates and misled in this case. To have given an instruction on nullification would have undermined the impartial determination of justice based on law.
The appeal didn’t ask for reversal on the judge’s refusal to issue an instruction, the appeal was based on the judge’s refusal to inform the jury of this power.
It makes absolute sense and is perfectly accurate for them to have held that “…. t]o have given an instruction on nullification would have undermined the impartial determination of justice based on law” . It would have been just as undermining of the impartial determination to have instructed the jury that they must return a guilty verdict. Both are true, but neither was the question before the court.
I think you need to read more carefully. The case under discussion here is the one most judges and prosecutors use as justification for denying the right of a jury to be informed of their power, and voir dire is the process by which they weed out informed persons who have independent knowledge and can pass it on to other jurors in deliberations, so that the prosecution is made easier. Your position isn’t the law, never has been the law, if it were defense attorneys who attempt to inform juries of their power would not face contempt charges and professional censure because there would be no need as they would have no information to impart.
January 25th, 2008 at 12:42 am
That last sentence sounds weak and I admit it does. Until you compare it to common practice in a courtroom where an attorney says something that isn’t true (legally speaking) or lawful. In which case the jury is simply told to disregard, yet in this instant the penalties for a practicing attorney are severe in the very first utterance before the jury, unlike other instances where the attorney is admonished to go forth and sin no more and the jury is told to disregard.
January 25th, 2008 at 8:11 am
Potatoe, potahto. Of course the judge wasn’t going to instruct them that they should render a verdict according to their attitude toward the law. The question was whether the judge would issue them an instruction to the effect that they could. Advising them they can or cannot do something is an instruction.
Let’s try this at a more abstract level. Can you name anything else, apart from nullification, that juries have a clear right to do (not a mere power or ability to do with impunity), but which lawyers cannot advise them of their right to do? Or for that matter, which would not form the basis of appeal if they did? You through out one example, directing a jury to render a guilty verdict. Could you see a court upholding the result if a judge did issue such an instruction?
January 25th, 2008 at 2:43 pm
Yes. US v. Fincher. The judge did exactly that after refusing to allow the jury to hear the defense.
No matter how you try, you cannot change the fact the nowhere has there been a ruling that negated the jury’s power to nullify, only that the judge doesn’t have to tell them they can.
I am starting to suspect you of dishonesty. I know you are educated enough to read. That doesn’t leave me many options in understanding your behavior.
January 25th, 2008 at 2:46 pm
The appeal hasn’t been heard yet in Fincher. Wanna make a little wager on who the court finds for?
January 27th, 2008 at 9:55 am
I don’t think you read my question very carefully. I asked whether you could think of anything apart from nullification which a court has clearly upheld a juror’s indisputable right (not mere ability or power) to do, yet where the court has also upheld the right of the judge to advise him not to exercise that right.
If courts believed juries had a right to nullify, they’d easily reverse every case in which the judge led them to reasonably conclude that they do not. They don’t because they don’t. It’s really that simple.