Jury nullification.

[Danzig]

I noticed that the topic of Jury Nullification came up in a different thread. I wanted to elaborate on the topic.

Here's some information about Jury Nullification:

In fact, the power of jury nullification predates our Constitution. In November of 1734, a printer named John Peter Zenger was arrested for seditious libel against his Majesty's government. At that time, a law of the Colony of New York forbid any publication without prior government approval. Freedom of the press was not enjoyed by the early colonialists! Zenger, however, defied this censorship and published articles strongly critical of New York colonial rule.

When brought to trial in August of 1735, Zenger admitted publishing the offending articles, but argued that the truth of the facts stated justified their publication. The judge instructed the jury that truth is not justification for libel. Rather, truth makes the libel more vicious, for public unrest is more likely to follow true, rather than false claims of bad governance. And since the defendant had admitted to the "fact" of publication, only a question of "law" remained.

Then, as now, the judge said the "issue of law" was for the court to determine, and he instructed the jury to find the defendant guilty. It took only ten minutes for the jury to disregard the judge's instructions on the law and find Zenger NOT GUILTY.

That is the power of the jury at work; the power to decide the issues of law under which the defendant is charged, as well as the facts. In our system of checks and balances, the jury is our final check, the people's last safegard against unjust law and tyranny.

A Jury's Rights, Powers, and Duties:

But does the jury's power to veto bad laws exist under our Constitution?

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".

For more information please visit fija.org

[robc]

I may be mistaken, I'm not a legal professional or legal historian, but isn't it true that a judge can "set aside" a jury decision? Doesn't this capability trump the existence of "jury nullification"?

[Doug.38PR]

I may be mistaken, I'm not a legal professional or legal historian, but isn't it true that a judge can "set aside" a jury decision? Doesn't this capability trump the existence of "jury nullification"?

They aren't supposed to. Most judges and DAs don't even want people to think Jury Nullification is legal or that it even exists. They will have you believe that you have to judge the case based on how the law reads, period and come back with a decision based soley on that.

Jury Nullification is a long standing legal tradition that goes back centuries. It is a final defense against unjust laws and rulings. That's why we are judged by a fair and impartial jury. If a law is passed that is unjust or is not serving justice in said case then they jury has the right to nullify that law and set that man free

[Danzig]

I'm glad that the topic came up. I received my first jury summons last week. I've been eager for the opportunity to sit on a jury. I know that I may not get selected. Even if I do, the case at hand may not lend itself to jury nullification. But it will be a good opportunity to see the system at work.

[Danzig]

Thanks for a clarification Doug. Jury Nullification is NOT about letting the guilty go free..it's about nullifying bad laws.

[STAGE 2]

As I stated in my post on the other thread, jury nullification is not a a right or a duty. It is a byproduct of our jury system. As long as we have free and independent jury system, jurors are going to be able to make a decision based on their own individual beliefs be it the guilt of the defendant, the validity of the law or how many clouds are in the sky.

In the last 50 years, every court opinion that has addressed this point has reiterated this fact. Some have even gone so far as stating that there is no right to jury nullification.

The framers set forth a process by which bad laws are to be changed. The jury box wasn't part of this process.

[44 AMP]

If either side learns you have even heard the term "jury nullification" you will not be seated on the jury.

[Abstract]

A judge can NOT set aside a jury verdict of not guilty in a criminal case.

[Danzig]

Excuse me Stage2? Can you not read? Straight from a Chief Justice of The Supreme Court of The United States:

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".

Jurors have the RIGHT to judge the LAW as well as the facts of the case. When in the course of JUDGING A LAW a juror finds it in error..it's his duty to NULLIFY it by finding against that law.

Today...we call that Jury Nullification.

[Marko Kloos]

Thanks for a clarification Doug. Jury Nullification is NOT about letting the guilty go free..it's about nullifying bad laws.

It can also be used to let the guilty go free, and I'd wager a guess that it has been used more in that fashion than the other way.

There have been quite a few all-white juries letting white defendants go free for killing non-whites, especially during the Civil Rights era in the Deep South.

Jury nullification is a two-sided sword...great when it works to right the wrongs of an unjust law, bad when it serves to nullify a just law.

[Danzig]

True 44 AMP. As jurors we have to ensure that we are seated on juries. Otherwise the juries are nothing but the lapdogs of the government.

[Danzig]

Good point Marko...but letting the guilty go free is NOT jury nullification.

[alan]

I've been called for jury duty several times, and for business reasons, was previously excused, I spent most of the time on the road. Recently, within the past month or so, I was again called for jury duty. Being now retired, I reported as required and sat around for about half a day. I never did get on an actual jury, the case I might have served on was settled, more or less at the last minute. So much for that, however we now come to the crux of things.

In-so-far as I know, the prosecutor prosecutes the case, the defense does their job, the judge instructs the jury. At this point, the jury retires to think about things, and come to a conclusion, if it can. It remains however, that in the last analysis, it is The Jury that brings in a verdict, judges charges being adisory.

Regarding people who cannot accept that responsibility or those who lack understanding of the real function of juries, they likely should not serve on juries.

[SecDef]

Stage2 wrote in another thread: Even if I agreed with everything you stated, there is nothing in the constitution which speaks to the role of juries. As a result it is malleable according to the various judicial opinions and statutes enacted.

What's the current situation in terms of a defense attorney bringing up nullification? Seems to me that it would not be technically wrong to inform the a jury of its power, it would just be undermining the defense's argument. Is it just a bad tactic?

Seems to me that jury nullification is about as useful as pardons (but with a lot less lobbying)... they apply to specific situations, yet don't do a heck of a lot overall to help or hinder our society.

[Danzig]

SecDef,

Judges and prosecutors intentionally try and weed anyone out of the jury pool who actually knows about jury nullification.

Persons have gotten in trouble for talking about jury nullification with other jurors or for disseminating information on the subject.

The legal system tries hard to ensure that the deck is stacked in the government's favor. Can't let a bunch of intelligent people sit on a gun law case if they know how illegal the laws are..and also know of their right to judge the law!

[STAGE 2]

Excuse me Stage2? Can you not read? Straight from a Chief Justice of The Supreme Court of The United States

I can read just fine. You didn't bother to state the rest of that opinion or the later decisions that have brought up jury nullification which are as much precedent as we have.

US v Moylan

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.

…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.


U.S. v. Krzyske

The jury asked the judge about jury nullification. The judge responded "There is no such thing as valid jury nullification." The jury convicted the defendant, and the judge's answer was upheld on appeal.

In 2001, a California Supreme Court ruling on a case involving statutory rape led to a new jury instruction that requires jurors to inform the judge whenever a fellow panelist appears to be deciding a case based on his or her dislike of a law.



Again. Jury nullification is an inherent byproduct of our system. All of these opinions say the same thing... namely that as long as we have free juries, nullification will be a possibility. It is NOT the right or duty of juries. This much is made clear in courtrooms everyday. Judges specifically inform juries they are NOT to determine whether or not a law is valid.

Individual jurors may use thier position to indeed nullify a law. However this runs contrary to our judicial system. There is a process for eliminating bad laws and it is not in the jury box.

[SecDef]

Danzig: That's why I wanted to know the defense attorney's role. If the point is to provide the best defense possible, is this a viable thing to mention in passing in a closing?

Or would a judge find an defense attorney in contempt or somesuch?

[Danzig]

SecDef, I think that the Judge would declare a mistrial in that case..and perhaps, you are right, hold the defense in contempt.

Stage2, all you showed is what's already been mentioned: The government doing it's best to destroy the liberty upon which our nation was founded.

JUST because the government says something..doesn't mean it's so. Heck..when the government says something...often it's the exact opposite that's true.

Jury Nullification has been a right of the citizens for centuries. The right doesn't evaporate simply because some statist judges say it doesn't exist.

[Crosshair]

Hmmm, mabee we can get CSI to work in our favor. Put in a few Jury Nullification cases in the episodes .

[Danzig]

There's been at least one that made an erroneous reference to a bad guy getting off as a case of jury nullification. There may have been an case where true jury nullification was exercised but I am not specifically aware of it.

Not sure if it was one of the CSI series or if it was one of the Law and Orders..

[STAGE 2]

Stage2, all you showed is what's already been mentioned: The government doing it's best to destroy the liberty upon which our nation was founded.

You guys kill me. You sit here all day and talk about how our rights are being eroded and liberty trampled upon.

Please Please PLEASE show me here its written in the constitution where jury nullification is a right. Better yet, show me where the constitution outlines the power of a jury at all.

You can't. Specifics like this were left up to the courts and the legislature to work out. Thats what the framers intended. The constitution wasn't meant to deal with every single problem or situation, only to hit the high points. Since jury nullification didn't make it in, it obviously wasn't a pressing matter.

Jury Nullification has been a right of the citizens for centuries. The right doesn't evaporate simply because some statist judges say it doesn't exist.

Yes it does. Or if a legislature enacts a law eliminating it, it does. This is how our system works. In case you didn't notice, there is no "law" in the constitution. Legislatures and courts make up the vast body of law we have including procedural law. A court can set precedent or congress can pass a law regarding jury nullification.

Bottom line, a right can't be trampled upon if it was not there to begin with. There is NO enumerated right to jury nullification PERIOD.

[Danzig]

Stage 2, the Constitution does not list all of our rights. It doesn't claim to. The Constitution was not written about US, the citizenry, it was written about the government. As a lawyer you should have been taught that.

Jury Nullification predates the Constitution, the Declaration of Independance, etc.

I an't believe that you are making the argument that if it's not in the Constitution it's not a right. You do that with a lot of things. You give power to the government that should ultimately belongs to the people. The government is meant to be the slave, not the master..but you are constantly reversing that role..making us out to be the slaves beholden to an all powerful government.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

These words point out the reason that the US Government was instituted. It also makes clear that the government was meant to be the servant of the people..not the other way around and that WE have the final say over what the government does..not the other way around. And when the government becomes an enemy of the rights of the people..it very existence is subject to the will of the people.

[Danzig]

quoted from Stage 2: "Bottom line, a right can't be trampled upon if it was not there to begin with. There is NO enumerated right to jury nullification PERIOD."

Stage 2, read the ninth amendment and get back to us.

[STAGE 2]

Stage 2, read the ninth amendment and get back to us.

The Sixth Circuit Court of Appeals stated as follows in Gibson v. Matthews,

[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution.

Professor and constitutional scholar Laurence Tribe shares this view. He writes, "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."

Likewise, Justice Antonin Scalia has expressed the same view, in Troxel v. Granville...

The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

Fundamental rights have been clearly defined and jury nullification is not among them.

But, even if I were for a moment to agree with you that there is some fundamental right of jury nullification, it is not beyond the power of the judiciary or the legislature to explain what this right is or how far it extends.

But theres also the problem of state trials. Take texas for example, where in their charge to the jury they expressly state that the jury is not to take the wisdom of the law into account. This is perfectly acceptable with their constitution and their history of jurisprudence. What are you to do about that? You can't turn to the federal system since its not applicable.

So we are back to the start. In all our years of case law, there isn't anything stating jury nullification is a fundamental right. As such, the legislature and courts can proscribe it as they see fit. You have no legal grounds to complain.

[Socrates]

Shot, shovel, and shut up.

Vote, verdict, and shutup.

Jury Nullification in action...

S