The fourth time I was empanelled was for a criminal case involving charges of felonious assault where the defense said that it would argue self-defense. Once again, there was an oral voir dire, which included questions about whether we had ever been involved in any physical altercation.
It was during the voir dire that I ran into a problem. One of the prosecuting counsel asked if the jurors would be willing to convict a person on the facts of the case even if they felt the law under which the person was being prosecuted was unjust. It was clear that he expected you to answer ‘yes’ to this question. We have all seen at least some courtroom dramas where the judge instructs the jury on the law to be applied and the jury is asked to judge based only on the facts of the case, and not to judge the validity of the law itself.
What is not well known is that the jury has the right, in criminal cases, to acquit the accused even if he or she is clearly guilty on the facts, if the jury feels that the law that was used to convict was unjust. This procedure is known as jury nullification and I have written about it before. (See here and here.) In the past, juries have nullified laws and brought in acquittals in cases involving freedom of assembly, freedom of the press, harboring fugitive slaves, and so on, and their repeated refusal to convict have led to the repeal of those unjust laws and given us some of the basic freedoms we now take for granted. But despite this fundamental right that juries possess, courts do not inform juries of this right and are actively hostile to doing so.
I was placed in a quandary by the prosecutor’s question. What I knew about the case at hand was such that it seemed highly unlikely that it would involve an unjust law. But since I knew about jury nullification, I could not in good conscience agree to a blanket statement that I would convict even if I felt the law to be unjust. But if I said in open court that I could not convict based on an unjust law, then I would have to explain the whole business of jury nullification. While that might have been educational for my fellow jurors, it might have prejudiced the entire jury panel and thrown a spanner in the works for a case that did not involve a high principle. So I asked the judge if I might talk to him privately. This was allowed and the judge, all the counsel, the court recorder, and I moved to his chambers next door where I explained my problem. We then went back to the courtroom where the prosecutor asked me a few more questions. Then she dismissed me from the panel.
I expected this to happen. Prosecutors do not like jury nullification because it works only one way, and that is against them, since it only gives jurors the right to acquit on the basis on an unjust law.
This is the problem currently with jury nullification. It is a right of juries that is not only not publicized but actively hidden from jurors by the court system. If someone is aware of it and says so, he or she is likely to be struck from the pool of potential jurors in criminal cases. There are ways to get around this, apparently based upon the fact that the oath or affirmation one takes during voir dire is not enforceable, so one can apparently say that one will convict on the basis of the law even if one has no intention of doing so. Whether one takes this route has to be up to the individual. But I am uncomfortable doing this, especially in a case where there is no high principle involved. When one swears or affirms that one is going to tell the truth, one is obliged to follow the spirit as well as the letter of the law. Politicians use the careful parsing of statements to lie to us and make us think they mean one thing while intending to do another. But it is this kind of behavior that leads to bad governments and gets us into wars. There is no reason for ordinary people to copy that kind of disgraceful behavior. I much prefer that the issue of jury nullification become public knowledge so that juries routinely know about it, even without being told by the judge, the way we currently know about our Miranda rights. The best way to do this might be for the popular courtroom dramas in TV and film to deal with it frequently. For example, I think the William Penn trial would make a terrific film, that would put the focus on jury deliberations even better than the classic Twelve Angry Men, both for its dramatic content and for its educational value
As things stand now, it looks like I will never be able to serve on a criminal jury because of my knowledge of jury nullification.
It is important that everyone know about jury nullification because we have entered an era in which there are increasing violations of those rights we have long taken for granted. Laws are being passed that are taking away many cherished and hard-won rights, such as habeas corpus. We are already having trials in which ordinary people are being subject to harsh treatment and even torture and tried under draconian and unjust laws, all in the name of security and fighting the so-called war on terror, but in reality to serve the power needs of the state.
If we are called as jurors for such trials, we have to be willing to uphold our constitutional right to acquit people who are accused of crimes under unjust laws, when in reality what they may have been doing is standing up for fundamental rights. If we are asked to convict someone on the basis of evidence that has been obtained under torture, we should be willing to acquit, simply on the grounds that using torture to acquire evidence is cruel and unjust and any information gleaned from such practices is inherently suspect.
POST SCRIPT: Catholic priests caught in the lingerie section
I came across this funny clip from the 1990s British TV comedy series called Father Ted.