Is Advocacy of Jury Nullification a Crime?
More on the case of the feds arresting a guy for handing out pamphlets.
13 Responses to “Is Advocacy of Jury Nullification a Crime?”
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February 26th, 2011 at 12:58 pm
Lots of legal commentary at
http://volokh.com/2011/02/25/suppression-of-jury-nullification-advocates-speech-outside-courthouse/
February 26th, 2011 at 3:12 pm
The ham sandwich fights back.
As in a good prosecutor could get the Grand Jury to indict a ham sandwich.
February 26th, 2011 at 4:35 pm
I do not go with that conscience bull shit. I go with letter of the law as in “Evidence must be given that proves beyond reasonable doubt that the defendant is guilty” I literally hold them to their word… I was a jurist in a case where everyone knew the man was guilty but the cops botched the case so badly we all thought it was a reno 911 episode… Armed robber walked… Sloppy evidence gathering, Wrong notes, detective who was not involved with the case and a cashier who was obviously an accomplice… I understand jury nullification but I also understand that completely ignoring the law for how I feel makes me no better then the criminals who break it in the first place….
February 26th, 2011 at 4:42 pm
John Smith raises a great concern. However, I have never thought of the Jury Nullification Doctrine as permitting a jury to convict on less than “beyond a reasonable doubt.” I understand the doctrine to mean that the jury has the right to decline to convict, regardless of whether the evidence proves violation of the criminal statute under which a person is prosecuted. The verdict applies to that case only, and the statute remains in effect. In that way, the jury stands as a final check on an abusive prosecution. In other words, the Jury Nullification Doctrine works only one way: to stop a conviction, and does not work to achieve a conviction where the evidence fails to prove one.
February 26th, 2011 at 5:34 pm
Nullification worked well in NY in the case of a Floridian who had left his handgun in his glove box. That would be considered normal in Florida and in much of the Deep South. Good for that jury.
On the other hand, I try usually to avoid having the handgun where it could be seen, unless purposely open carrying in a legal jurisdiction.
Before traveling, consult Handgunlaw.us
February 26th, 2011 at 7:49 pm
My favorite part of this case: the best evidence rule. The pamphlet that the retired professor was handing out will be seen by the jury. Hysterical.
February 26th, 2011 at 9:44 pm
John Smith: MJM has it right. Jury Nullification does not a jury voting to convict despite the evidence; it is a jury voting to acquit despite the evidence, because the law itself is unjust – even if it is only unjust in that particular case.
This is reflected in the fact that the trial judge can overrule a jury conviction as “inconsistent with the evidence”, or the defendant can appeal a conviction to a higher court, but a jury’s decision to acquit is inviolable.
February 26th, 2011 at 9:48 pm
“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 direction of the court.” –John Adams
“The jury has a right to judge both the law as well as the fact in controversy.” – John Jay, First Chief Justice of the U.S. Supreme Court (1789-1795)
“The jury have an undoubted right to give a general verdict, which decides both law and fact.This distribution of power, by which the court and jury
mutually assist, and mutually check each other,” Hamilton continued, “seems to be the safest, and consequently the wisest arrangement, in respect to the trial of crimes. …” –Alexander Hamilton
“The jury has the right to determine both the law and the facts.–Samuel Chase, U.S. Supreme Court Justice, 1796Signer of the Declaration of Independece
“The jury has the power to bring a verdict in the teeth of both law and fact.”–Oliver Wendell Holmes, U.S. Supreme Court Justice,
1902
“The law itself is on trial quite as much as the cause which is to be decided.”–Harlan F. Stone, 12th Chief Justice, U.S. Supreme Court
“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. … If the jury feels that the law under which the defendant is accused is unjust … the jury has the power to acquit …” (emphasis added).–U.S. v. Moylan, U.S. Fourth Circuit Court, 1969
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…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 or passion, the jury has the power to acquit, and the courts must abide by that decision.
4th Circuit Court of Appeals, United States v. Moylan, 1969
[The jury has an] unreviewable and irreversible power…to acquit in disregard of the instructions on the law given by the trial judge…The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.
D.C. Circuit Court of Appeals, Unites States v. Dougherty, 1972
February 27th, 2011 at 1:34 pm
I support jury nullification wholeheartedly, but let’s not forget that it has been used for absolutely evil in the very recent past. Only 50 years ago, there were plenty of that would never convict a white man of murdering a black man.
I just think this is important to keep in mind. The right is a doubled edged sword, like all rights are.
February 27th, 2011 at 10:56 pm
But that’s not at issue whether it’s a good or bad thing. What’s at issue is if it’s a legal thing. You’re using the same rhetoric that’s used by the antis.
It’s not the tool that we need to question, but the individual using the tool. In this case, Jury Nullification is a tool that can be used to keep crappy courts and laws in check. Sorry if that comes across wrong, not trying to be a jerk, just trying to put it into perspective.
February 27th, 2011 at 11:12 pm
In John Adams era, in many states, the jury had the interpretation of the law within its purview. That’s not the law any longer.
In general, I oppose jury nullification as I don’t think that a tiny minority of twelve people have the right to veto the laws of a democracy.
February 27th, 2011 at 11:14 pm
Tango, the jury does not have the legal right to ignore the law, but they have the power to do so. There’s a difference. When a jury ignores the letter of the law, they are acting illegally. However, absent some stupid actions on the jury’s part, their power to do so is not reviewable.
February 28th, 2011 at 12:28 am
SPQR, they can’t ignore the law, but they can find a man not guilty of any crime in the trial they are working. Even if they have video evidence of someone doing an act, DNA evidence putting him there, and 32 eye witnesses; if they do not believe that he was guilty, they can still vote as such.