Radiolab on jury nullification

I have written many times about jury nullification, the little known right of juries to acquit defendants even if the defendant has clearly violated the law, if the jury feels that the law used to convict them is unjust.

We are all familiar with the process by which laws are created. We, the citizens, vote legislators into office. These legislators propose and debate bills. Once passed by the legislature and signed by the elected executive, these bills become laws and that, we think, is the end of the story unless courts rule the law to be unconstitutional. We are now obliged to follow the laws. If we do not like a law, the only option is to get the legislature to change it.
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Jury nullification allowed in New Hampshire

Juries are almost always told that it is their job to judge the facts of the case before them and it is only up to the judge to interpret the law. But that is wrong. Juries can judge both the facts and the law and have the right to acquit someone of a crime if they feel that the law under which the person was convicted is an unjust one, even if the facts of the case clearly show that the person is guilty. Such a result is known as ‘jury nullification’. [Read more…]

Former federal prosecutor calls for jury nullification of marijuana laws

A former federal prosecutor calls upon people, if they serve on a jury, to use nullification as a means to change marijuana laws. He uses the case of Julian P. Heicklen, which I have discussed before.

If you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.

Jury nullification is not new; its proponents have included John Hancock and John Adams.

The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”

He points out that, “How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot.”

I agree with him.

Proponent of jury nullification may not get a jury trial

I have written before about the important practice of jury nullification, in which juries exercise their option to be the ultimate judges of the validity of laws and have the right, if they think that the law itself is unjust, to acquit someone of a charge even if the person is clearly guilty of violating the law. (See here and here)

Juries have this right because they, not the legislators, are the ultimate judges of a whether a law is just and are the ultimate bulwark against governments that can manipulate the system to pass laws that are not in the public interest. Judges and prosecutors often oppose sharing information about this right with juries, another example of the desire of the elites to prevent ordinary people from exercising any power. Judges want to preserve their right to be the sole interpreters of the law while prosecutors do not want to allow another mechanism for acquittal.
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Man prosecuted for publicizing jury nullification

I have written before (here and here) about how few people know about ‘jury nullification’, which is the right of juries to acquit some one even if there is no doubt that the law had been broken, if they think that the law used to convict is itself unjust. It is thanks to jury nullification that we now have constitutional protections of freedom of the press and association and assembly.

Although the right of juries to nullify is well established, judges and prosecutors tend to not like it to be well known, the former because it means that juries have the right to ignore their instructions and the latter because they want juries to convict.

Now there is a case where a retired Penn Sate chemistry professor standing outside a courthouse handing out leaflets informing potential juries of their right to nullify has been arrested and charged with jury tampering.

Scott Horton also talks about the case and the history of jury nullification. Sam Smith also discusses the case.

Jury nullification over pot possession?

I have written before about ‘jury nullification’, the right of juries to decide that a law is wrong and refuse to convict someone of a crime even if the facts are clear that that person is guilty. (See here and here.)

I said last year (see the post script to this) that drug laws against minor offenses such as possession of marijuana in small amounts are the most likely to be nullified and recently there was another example of this.

Jury service and jury nullification-2

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.
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Jury service and jury nullification-1

By a coincidence, while writing and posting my series on the law and religion in public schools, I was also called for jury service and spent the better part of the week of November 5, 2007 in the Cuyahoga County Common Pleas Court in downtown Cleveland.

I feel strongly that the jury system is one of the greatest inventions of modern society and has been the foundation for democracy and creating and preserving freedoms. So I feel that to serve on a jury is a privilege and do not resent doing my time on the jury though it does involve some minor inconveniences and disruptions in work and home routine.

This was the third time I have been called for jury duty but I have yet to actually sit in on a case. For those not familiar with how it works, at least in Cuyahoga County where I live, when you are called for jury duty to the Common Pleas Court, it is not for a particular case but to be part of a large pool of jurors that serve many courts. So much of the time is spent waiting until your name is randomly called as needed if a case cannot be settled and should need to go to trial.
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The history of jury nullification

The history of juries nullifying laws is very interesting. In yesterday’s post I discussed the celebrated case of John Peter Zenger. But there’s lots more. As Doug Linder writes:

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.

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Jury nullification

In a democratic system, laws are created by the people as a means of maintaining order. Unlike in a police state, where compliance to laws is arrived at by using the force of the state security apparatus, democratic societies can only maintain their open nature because of voluntary compliance based on the belief that the laws are just and should be followed. This voluntary compliance is obtained because we believe that we ourselves are the architects of the laws that govern us.

But how do these laws come about?

We are all familiar with how the process works, at least on the Schoolhouse Rock level. We, the citizens, vote legislators into office. These legislators propose bills. Once passed by the legislature and signed by the elected executive, these bills become laws. So we tend to think that we, the people, have created the laws that govern us through the medium of representatives elected to act on our behalf.
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