Jury nullification wins over dumb law

[Quantum Windbag]

There is a pervasive myth that three states supposedly allow jury nullification instructions: Georgia, Maryland, and Indiana. See State v. Morgan Stanley & Co., 194 W.V. 163, 175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 704 n.147 (1995). Some lists also include Oregon. This is presumably because those states have laws or constitutional provisions suggesting that criminal jurors are judges of the law and the facts. But the myth is false. Despite their differing constitutions, all four states have held that a jury has, at most, the power to acquit a guilty man, not the right, and should not be told that it may ignore or nullify the law.See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 S.E.2d 642, 647 (Ga. 1990).

(I did not write this. I did a little Googling and came across this statement in a post on a thread on some obscure legal discussion board somewhere. Nonetheless, whoever wrote this knows what he/she is talking about - it is a totally correct statement.)

This is where legal analysis confuses me. How can I have the power yet not have the right to do something that is perfectly legal? Or is this expert also going to try and claim that if a jury nullifies the state has a right to throw the verdict out.

Double jeopardy is what keeps the power, and the right, to nullify in the hands of the jury.

 

[MikeK]

no. jury nullification is not supported by the common law. nor does it derive from the magna carta, the dongan patent or any other old english laws or proclamations.

The power of the jury to judge the justice of the law and to hold laws invalid by a finding of "not guilty" for any law a juror felt was unjust or oppressive, dates back to the Magna Carta, in 1215. At the time of the Magna Carta, King John could pass any law any time he pleased. Judges and executive officers, appointed and removed at his whim, were little more than servants of the King. The oppression became so great that the nation rose up against the ruler, and the barons of England compelled their king to pledge that he would not punish a freeman for a violation of the law without the consent of his peers.

http://www.isil.org/resources/lit/history-jury-null.html

as for the constitution being a legal syllabus, who are you? who is some juror to decide what is constitutional and put themselves before the courts, while lying to the court to take such a stand?

I didn't say the Constitution is a legal syllabus. I said it isn't.

As to who I am, I am one among many who disagree with your authoritarian/submissive view of the world and agree with the following legitimate experts on the subject:


Several state constitutions, including the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790 specifically provided that "the jury shall be judges of law, as well as fact." In Pennsylvania, Supreme Court Justice James Wilson noted, in his Philadelphia law lectures of 1790, that when "a difference in sentiment takes place between the judges and jury, with regard to a point of law,...The jury must do their duty, and their whole duty; They must decide the law as well as the fact." In 1879, the Pennsylvania Supreme Court noted that "the power of the jury to be judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights."

John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: "The jury has the right to judge both the law as well as the fact in controversy." Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: "The jury has the right to determine both the law and the facts. " U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902: "The jury has the power to bring a verdict in the teeth of both law and fact." Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court, stated in 1941: "The law itself is on trial quite as much as the cause which is to be decided."

In a 1952 decision (Morissette v United States), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated:

"Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter."

In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the Court said: "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."

So any court that seeks to constrain me from exercising what clearly is my right to follow the dictate of my conscience deserves to be lied to. If you believe the constraints placed on jurors by the regulations imposed for the purpose of leading a jury down a narrowly restrictive path it logically follows that there really is no need for juries. We might as well accept that a judge should simply refer to the "facts" and issue the verdict himself. Because as an endowed legal expert he certainly must be more capable of doing so than are a dozen lesser humans.

 

[MikeK]

There is a pervasive myth that three states supposedly allow jury nullification instructions: Georgia, Maryland, and Indiana. See State v. Morgan Stanley & Co., 194 W.V. 163, 175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 704 n.147 (1995). Some lists also include Oregon. This is presumably because those states have laws or constitutional provisions suggesting that criminal jurors are judges of the law and the facts. But the myth is false. Despite their differing constitutions, all four states have held that a jury has, at most, the power to acquit a guilty man, not the right, and should not be told that it may ignore or nullify the law.See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 S.E.2d 642, 647 (Ga. 1990).

(I did not write this. I did a little Googling and came across this statement in a post on a thread on some obscure legal discussion board somewhere. Nonetheless, whoever wrote this knows what he/she is talking about - it is a totally correct statement.)

If jurors have the power, why do they not have the right?

If the Law says they should not exercise their power, why does the Law not simply repeal that power?

 

[George Costanza]

This is where legal analysis confuses me. How can I have the power yet not have the right to do something that is perfectly legal? Or is this expert also going to try and claim that if a jury nullifies the state has a right to throw the verdict out.

Double jeopardy is what keeps the power, and the right, to nullify in the hands of the jury.

Juries can nullify. But, juries are always instructed to follow the law. Nullification, by definition, means the jury does not follow the law. Therefore, if a jury does nullify, it is doing so in violation of the court's instruction to follow the law.

Nullification verdicts are extremely rare for a number of reasons. First of all, many, if not all, potential nullification jurors are eliminated on voir dire, and never get seated. Secondly, the court does instruct the jury to follow the law, and that is what juries do. Finally, it takes all twelve jurors to render a not guilty verdict and, once the first and second factors previously mentioned swing into effect, it is almost impossible to get all twelve jurors to agree to nullify.

What does happen quite often, is a hung jury resulting from one maverick juror who is bent on nullification. But hung juries only mean a retrial, since jeopardy does not attach when the jury is hung.

 

[George Costanza]

There is a pervasive myth that three states supposedly allow jury nullification instructions: Georgia, Maryland, and Indiana. See State v. Morgan Stanley & Co., 194 W.V. 163, 175, 459 S.E.2d 906, 918 n.27 (W.V. 1995); Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 704 n.147 (1995). Some lists also include Oregon. This is presumably because those states have laws or constitutional provisions suggesting that criminal jurors are judges of the law and the facts. But the myth is false. Despite their differing constitutions, all four states have held that a jury has, at most, the power to acquit a guilty man, not the right, and should not be told that it may ignore or nullify the law.See, e.g., Miller v. Georgia, 260 Ga. 191, 196, 391 S.E.2d 642, 647 (Ga. 1990).

(I did not write this. I did a little Googling and came across this statement in a post on a thread on some obscure legal discussion board somewhere. Nonetheless, whoever wrote this knows what he/she is talking about - it is a totally correct statement.)

If jurors have the power, why do they not have the right?

If the Law says they should not exercise their power, why does the Law not simply repeal that power?

http://www.usmessageboard.com/law-a...ication-wins-over-dumb-law-7.html#post3131731

 

[MikeK]

Juries can nullify.

Correct.

But, juries are always instructed to follow the law.

Correct

Nullification, by definition, means the jury does not follow the law.

No. It means the jury does not follow a judge's instructions. If nullification were against the law, why does the law not prohibit it?

Therefore, if a jury does nullify, it is doing so in violation of the court's instruction to follow the law.

The power to nullify is a component of the law as it applies to juries. If it were not, the law would clearly forbid it. The power to nullify, along with the double jeopardy provision, exist for a very specific reason.

Nullification verdicts are extremely rare for a number of reasons. First of all, many, if not all, potential nullification jurors are eliminated on voir dire, and never get seated.

True. And the reason for this is very few contemporary juror candidates are aware of the rules imposed to restrict their power. But there are indications that FIJA is gaining ground in its effort to bring the public up to date on how to circumvent the restriction.

Secondly, the court does instruct the jury to follow the law, and that is what juries do.

Again, the power to nullify is a component of the law. If it were not it would not exist.

Finally, it takes all twelve jurors to render a not guilty verdict and, once the first and second factors previously mentioned swing into effect, it is almost impossible to get all twelve jurors to agree to nullify.

At the present time this is true. But if the power to nullify becomes more widely known that will change.

What does happen quite often, is a hung jury resulting from one maverick juror who is bent on nullification. But hung juries only mean a retrial, since jeopardy does not attach when the jury is hung.

Better than nothing.

Your position in this issue is analogous to the farmer and the traveling salesman in that the Farmer instructs the salesman not to screw his daughter and the salesman says, "Okay. Now go to sleep."


Again, George. Please answer these questions -- and not with a link to this thread:

If jurors have the power, why do they not have the right?

If the Law says they should not exercise their power, why does the Law not simply repeal that power?

 

[jillian]

If jurors have the power, why do they not have the right?

you have the power to murder someone too. but you do not have the right to do so.

If the Law says they should not exercise their power, why does the Law not simply repeal that power?

because the 'power' is not a legal one which requires repeal.

you talk about jury nullification like it is some noble thing protecting people FROM oppressive laws.

if used, can't it as easily, and more likely, be used by people who don't like being constrained FROM doing things like discriminating; or lynching people; or engaging in hate crimes?

there are courts and there is a process.

 

[Gadawg73]

Jury charges and the judge's instructions are following the law.
The law the Legislature of that state has passed.
If it isn't then the case is automatically appealed based on that and an appellate court rules in favor of the defendant if they were wrongly convicted if a judge's charges and/or instructions did not follow THE LAW.
You folks can dance around it all you want but it is impossible to polish a turd.

 

[Oddball]

And the jury box is where the citizens decide of the justness of laws foisted upon them by mere politicians.....The litany of which curiously includes NO LAW which precludes them from doing so.

 

[MikeK]

If jurors have the power, why do they not have the right?

you have the power to murder someone too. but you do not have the right to do so.

Murder is a crime. Jury nullification is not.

Try again.

 

[Gadawg73]

And the jury box is where the citizens decide of the justness of laws foisted upon them by mere politicians.....The litany of which curiously includes NO LAW which precludes them from doing so.

No it doesn't. That happens at the BALLOT BOX.
The jury debates the evidence, NOT THE LAW.
Would you want your fate decided at the hands of the mob masses without any rights under the law as the mob decides what laws are just and which ones are not?
You need to re-think that one.

 

[MikeK]

you talk about jury nullification like it is some noble thing protecting people FROM oppressive laws.

It is exactly that, as is revealed in the recorded history of and need for Jury Nullification, which you purposefully ignore.

if used, can't it as easily, and more likely, be used by people who don't like being constrained FROM doing things like discriminating; or lynching people; or engaging in hate crimes?

What you and others of your perpetually intimidated minority mindset are attempting to do by impeding the intended right to nullify is analogous to impeding the lawful sale of rope to prevent lynching.

there are courts and there is a process.

And there is more than one way to kill a cat.

 

[Gadawg73]

If jurors have the power, why do they not have the right?

you have the power to murder someone too. but you do not have the right to do so.

Murder is a crime. Jury nullification is not.

Try again.

Under your theory juries should be able to discuss the case with anyone, read anything and everything in the media about the case, research everything they want to and disregard all the evidence and facts presented at trial because their aunt Hazel from Climax, Ga. believes the defendant is cute, their horoscope said it was a bad day, her palm reader advised that the defendant was not gulity and they thought the Judge needed a hair cut.
Anything and everything does not go in a court of law in a civilized society.
We were founded as a nation of LAWS, not men and their differing religions, principles, morals and other prejudices.

 

[Gadawg73]

you talk about jury nullification like it is some noble thing protecting people FROM oppressive laws.

It is exactly that, as is revealed in the recorded history of and need for Jury Nullification, which you purposefully ignore, clearly reveals.

if used, can't it as easily, and more likely, be used by people who don't like being constrained FROM doing things like discriminating; or lynching people; or engaging in hate crimes?

What you and others of your perpetually intimidated minority mindset are attempting to do by impeding the intended right to nullify is analogous to impeding the lawful sale of rope to prevent lynching.

there are courts and there is a process.

And there is more than one way to kill a cat.

I respect that and if you want to move to a country where they allow a jury to decide your fate when charged on opinion and the evidence and not the law and the evidence that is your right.
But we do not want mob rule here.
We are a nation of laws here and we want the US Constitution, not mob rule of the masses, to instruct juries as to the LAW.
Delta is ready when you are.

 

[MikeK]

And the jury box is where the citizens decide of the justness of laws foisted upon them by mere politicians.....The litany of which curiously includes NO LAW which precludes them from doing so.

No it doesn't. That happens at the BALLOT BOX.
The jury debates the evidence, NOT THE LAW.

Jury Nullification, which is a power contained in the Law, enables a jury to weigh both evidence and the Law. But the contrived instructions issued by judges that endeavor to circumvent that power are easy enough to ignore by anyone who understands the oppressive purpose of such instructions.

Would you want your fate decided at the hands of the mob masses without any rights under the law as the mob decides what laws are just and which ones are not?
You need to re-think that one.

Would you want your fate decided by some judge who has a personal, political or financial interest in sending you to prison whether you deserve such punishment or not?

 

[Quantum Windbag]

If jurors have the power, why do they not have the right?

you have the power to murder someone too. but you do not have the right to do so.

Yet, if a jury nullifies, there is no recourse for the state to punish them, because nullification is not illegal. Why do I not have the right to do something that is legal?

If the Law says they should not exercise their power, why does the Law not simply repeal that power?

because the 'power' is not a legal one which requires repeal.

you talk about jury nullification like it is some noble thing protecting people FROM oppressive laws.

if used, can't it as easily, and more likely, be used by people who don't like being constrained FROM doing things like discriminating; or lynching people; or engaging in hate crimes?

there are courts and there is a process.[/quote]

What a great point. To bad jury nullification does not have historical examples that show it has a noble purpose.

Wait, it does.

The most famous nullification case is the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels, the only issue the court said the jury was open to decide as the truth or falsity of the statements was ruled to be irrelevant, the jury returned with a verdict of "Not Guilty." Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.
More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.

Jury Nullification: History, questions and answers about nullification, links

Do I need provide examples of the government misusing the law in order to prove that it happens occasionally? You notice I am not advocating doing away with the entire court system just because it is occasionally abused, why do you want to remove the power of juries to nullify simply because it is occasionally abused, especially since the examples you bring up are much more likely to result in a hung jury than nullification.

The power to nullify is the last line of defense of the people against oppressive laws. Can it be misused? Of course, but it is much more likely that a law will be oppressive and misapplied than that a jury will nullify simply because everyone on the jury supports killing all white people. or black people for that matter.

 

[MikeK]

I respect that and if you want to move to a country where they allow a jury to decide your fate when charged on opinion and the evidence and not the law and the evidence that is your right.
But we do not want mob rule here.
We are a nation of laws here and we want the US Constitution, not mob rule of the masses, to instruct juries as to the LAW.
Delta is ready when you are.

I would expect this rather stereotypical, "Move to Russia if you don't like it," response from some tobacco-chewing yokel rather than someone with the credentials you've boasted. But I suppose there is something in the water down there.

I would like you to respond to the the message and intent of the following commentary:


Several state constitutions, including the Georgia Constitution of 1777 and the Pennsylvania Constitution of 1790 specifically provided that "the jury shall be judges of law, as well as fact." In Pennsylvania, Supreme Court Justice James Wilson noted, in his Philadelphia law lectures of 1790, that when "a difference in sentiment takes place between the judges and jury, with regard to a point of law,...The jury must do their duty, and their whole duty; They must decide the law as well as the fact." In 1879, the Pennsylvania Supreme Court noted that "the power of the jury to be judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights."

John Jay, the first Chief Justice of the U. S. Supreme Court stated in 1789: "The jury has the right to judge both the law as well as the fact in controversy." Samuel Chase, U. S. Supreme Court Justice and signer of the Declaration of Independence, said in 1796: "The jury has the right to determine both the law and the facts. " U. S. Supreme Court Justice Oliver Wendell Holmes said in 1902: "The jury has the power to bring a verdict in the teeth of both law and fact." Harlan F. Stone, the 12th Chief Justice of the U. S. Supreme Court, stated in 1941: "The law itself is on trial quite as much as the cause which is to be decided."

In a 1952 decision (Morissette v United States), the U. S. Supreme Court recognized the powers of juries to engage in nullification. The court stated:

"Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges....They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter."

In a 1972 decision (U. S. v Dougherty, 473 F 2nd 1113, 1139), the Court said: "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."


What would you have to say to those individuals? Move to another country?

 

[Quantum Windbag]

Jury charges and the judge's instructions are following the law.
The law the Legislature of that state has passed.
If it isn't then the case is automatically appealed based on that and an appellate court rules in favor of the defendant if they were wrongly convicted if a judge's charges and/or instructions did not follow THE LAW.
You folks can dance around it all you want but it is impossible to polish a turd.

I am not trying to polish a turd, but I am asking why a jury, when it believes the law is being abused, has to follow it. Sure, the courts will more than likely intercede and set the guy free, but why should an innocent man have to spend any time in jail just because the prosecutor and the judge decided to railroad him?

 

[Quantum Windbag]

you have the power to murder someone too. but you do not have the right to do so.

Murder is a crime. Jury nullification is not.

Try again.

Under your theory juries should be able to discuss the case with anyone, read anything and everything in the media about the case, research everything they want to and disregard all the evidence and facts presented at trial because their aunt Hazel from Climax, Ga. believes the defendant is cute, their horoscope said it was a bad day, her palm reader advised that the defendant was not gulity and they thought the Judge needed a hair cut.
Anything and everything does not go in a court of law in a civilized society.
We were founded as a nation of LAWS, not men and their differing religions, principles, morals and other prejudices.

Where does he say anything like that? Why do you feel the need to resort to strawman arguments?

 

[Gadawg73]

Ok, you guys have my interest. As an open minded American, country boy done well, I have ordered Jeffrey Abramsons 1994 book We The Jury: The Jury System and the Ideal of Democracy and look forward to a great read. Should get it in a few days and will enjoy reading it.