Rule Of Law And Jury Nullifiction

[mawilson]

I am responding to various posts of Jun 13&14, 2004 on the topic of Jury Nullification. I am not a lawyer or legal expert, but an experienced juror in the Superior Courts of Ventura County, California. I am also not an anarchist or libertarian. I advocate the rule of objective law. My position is as follows (addressing only criminal jury trials):

The purpose of a criminal trial is to obtain justice for the accused. All the elements which come together in a trial are to serve this purpose. These elements include the specific charges, the applicable law, evidence presented, and the functions of the judge, counsel, and jury. In a trial, the law is in service of justice; a trial is not in service to the law. If a juror finds that the law is in opposition to justice for the accused, he should render a verdict of Not Guilty.

My theory in this is that the charges, the law, and the evidence must jointly prove guilt of an actual crime on the part of the accused. That these prove that the accused violated the law is insufficient. With one exception, indicated below, the law must define an actual crime, one entailing a violation of rights.

The exception, mentioned above, in the instance of non-objective law, is the accused having flouted the law. If this is in evidence, the juror should render a Guilty verdict. This would be just to the accused as he knowingly violated the principle of the rule of law, as well as the law he flouted.

It may be said that this places the authority of jurors outside and above the law. This is true and it is proper because it is the last-resort means, in a single instance, of subordinating society and its laws to moral law.

Here I address objections and other points:

The purpose of the Not Guilty verdict in opposition to the law is not to go about changing the law. Although it may incidentally promote that, its purpose is justice for the accused.

Even under the most rigorous system of objective law, laws are made by men who can produce some non-objective laws.

Betsy: “…the jury is only supposed to rule on the facts and not on the law. If they do, they are breaking the law.” It is the law that juries are to be instructed to act only as finders of fact. It is not clear that juries are bound by law to abide by that instruction. Perhaps someone could cite the law under which jurors are so bound.

Stephen_speicher: “Jury nullification is a form of anarchism, one in which the person is, in effect, making his own law.” Jury nullification has the effect of making the law void in respect to the charges at hand in a particular case. This is not making a law. It is rendering the law silent.

DavidOdden: “Refusing to convict, when the facts indicate that the defendant did the deed proscribed by the law, violates the law.” What law does such a juror violate?

If jury nullification is a form of anarchy, then we should replace citizen juries with expert government jurists who will apply the law regardless of individual justice and who will not, through hubris or susceptibility to emotional appeal, produce such outcomes as in the OJ criminal case. Is this what you are arguing for?

[DavidOdden]

DavidOdden: “Refusing to convict, when the facts indicate that the defendant did the deed proscribed by the law, violates the law.” What law does such a juror violate?

Speaking of OJ, I will quote briefly from Judge Ito's instructions to the jury in People v. Simpson, since it is happens to be at hand.

You have heard all the evidence and it is now my duty to instruct you on the law that applies to this case.....

You must base your decision on the facts and the law. You have two duties to perform: first you must determine the fact from the evidence....

Second, you must apply the law that I state to you to the facts as you determine them and in this way arrive at your verdict and any finding you are instructed to include in your verdict.

You must accept and follow the law as I state it to you, whether or not you agree with the law.

You must not be influenced by pity for the defendant (etc. many requirements pertaining to the impropriety of irrational considerations omitted).

If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditated, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree....

The purpose of the court's instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict...

I don't recall whether the form of jury instructions is mandated verbatim by the legislature in California, but even if they are not, instructions by a judge have the same legal status as legislation.

Your opinion on the purpose of a criminal trial is noted but not supported. The presumption is that laws are just and that there consequently is no distinction between justice vs. criminal guily / innocence. Thus, the function of a trial is to determine guilt or innocence, and the function of the legislature and appellate courts is to determine the relationship between law and justice. So now we have two opposing opinions.

My opinion of the OJ case is that while I think it is quite probable that he is a murderer, the prosecution failed to establish guilt beyond a reasonable doubt, so in terms of finding of fact, I can accept a not guilty verdict in this instance. At the same time, I am not at all persuaded that that jury would have found him guilty, if the prosecution had objectively made that case.

I oppose the existing jury system because of two fundamental failures of juries. First, they are often incapable of rendering correct and objective factual judgements, especially when it comes to evaluating expert scientific testimony. Second, they are chronically (though not universally) incapable of comprehending the requirements of the law and applying the law despite their emotional prejudices. So the existing jury system is structurally incapable of delivering real justice even if they all take a Scalia-like literalist approach to the law, simply because jurors lack the training required to properly interpret the import of the evidence and especially to understand what the law requires. However, letting the government run the show with a panel of expert agents would be worse. So given the choice of anarchism vs. fascism in the courtroom, I would chose the anarchism of the current jury system, until a better system can be devised.

[mawilson]

Your opinion on the purpose of a criminal trial is noted but not supported.

David, did you mean that you do not support my opinion or that I had not supported it in my post?

If the latter:

My support for my assertion that the purpose of a criminal trial is to obtain justice for the accused is that the trial is a part of the process of determining what shall be done to the accused, if anything. What is done to him is a matter of justice.

[Spearmint]

Jury nullification undermines the rule of law because, under objective law, the jury is only supposed to rule on the facts and not on the law.  If they do, they are breaking the law.

Surely the 'rule of law' is undermined whenever a law that is unconstitutional gets upheld in court? A jury that is guided by the Constitution is more respecting of objective law than one which is guided by the transient whims of leglislators.

[Betsy]

Surely the 'rule of law' is undermined whenever a law that is unconstitutional gets upheld in court?

Not necessarily. The federal and state constitutions allow for an appeals process and for unjust laws to be to be voided as unconstitutional.

A jury that is guided by the Constitution is more respecting of objective law than one which is guided by the transient whims of legislators.

They might be. Then again, individual jurors can be motivated transient whims too -- by religion, prejudice, envy, and considerations at odds with the constitution -- when they are deciding if a given law is fair and just.

Legislation may not be perfect, but I prefer a public process where the participants are held accountable at election time to the idiosyncrasies of unelected jurors.

[Spearmint]

Not necessarily.  The federal and state constitutions allow for an appeals process and for unjust laws to be to be voided as unconstitutional.

This is true, I was mainly wanting to point out that what consitutes 'objective law' might actually be somewhat subjective. There are those that believe that the authority of the Constitution should take precedence over any existing laws in the event of conflict even on the individual level (I align myself with this side), and there are those that believe that all existing laws should be upheld at individual and court level even when they conflict with the Constitution (I assume you are in this camp). I think we can all agree that unconstitional/immoral laws _should_ be overturned, but the question here is what to do in the meantime, while we are waiting for this to happen. As you can probably tell, I am absolutely against the enforcement of unjust laws, and if I am in the position to prevent their enforcement without endangering myself, I will do so. I do not believe that it is correct to sacrifice innocent people in order to "uphold the rule of law". With this in mind, I am obviously going to support jury nullification under the present circumstances.

[DavidOdden]

Surely the 'rule of law' is undermined whenever a law that is unconstitutional gets upheld in court? A jury that is guided by the Constitution is more respecting of objective law than one which is guided by the transient whims of leglislators.

The constitution actually gives no laws per se, rather is says what laws can be and says who has what powers. So the jury can't "apply" the Constitution in a case. For example, murder is not prohibited in the Constitution -- how then can a juror apply the Constitution in a given instance of murder? And can they? Should they? For example, when you read the "Full Faith and Credit" clause, do you really understand what that means (and allows)? Literally? Not, what would you like it to mean, but what does it actually mean? It apparently does make the Defense of Marriage Act constitutional. I can't think of a clear case where a clearly unconstitutional law could be so identified by a jury (could you correctly identify the constitutionality of the Defense of Marriage Act, or yesterday's Protection of Marriage Act?)

One of the fundamental problems with law is that it is always subject to interpretation. Any law is a general statement of what cannot be done: it is not a specific prohibition against a specific act at at one time. Then the decision that "this act is prohibited by law" requires understanding of the law in its full context, including the basic principles of legal interpretation that are part of common law (which is different from the statutes that have been passed in a jurisdiction). You cannot always, automatically read and understand whether the act is legal or illegal (very often because laws are written badly, also because crucial original definitions are not self-evidently applicable when new facts are discovered).

Legislators are certainly capable of giving in to whims -- like yesterday's howler, the Protection of Marriage Act; but so are jurors and even judges. Ultimately, the judges are the most important, because they have the greatest power of interpretation. One of the keys to objective law is to make principles of interpretation actually be part of the Constitution. The Constitution should identify in very clear (and Objectivist) terms what the function of government is; and that purpose should have the role of an "axiom", so that all laws must be explicitly validated by reference to that purpose, and that purpose is not open to legal challenge. The Constitution should require that all interpretations of law be validated by reference to that purpose.

There are other important problems in developing objective law, especially in understanding "what the law says". There are various meta-rules in common law like the rule of lenity and the last antecedent rule (which IMO is a crock): the matter of how to interpret law is really a fundamental problem. I advocate a more Scalia-like approach to interpreting law -- and a Virginia-like approach of dealing with the "oops" problem (I don't know that they are actually very good in general about fixing boneheaded mistakes, but I thought it was a good sign that within about 2 weeks they righted their inadvertent imposition of a Sunday closure law on business).

[Spearmint]

Actually you're possibly correct here; there's quite a lot of complexity involved in Constitutional interpretation. I was focusing mainly on clear-cut cases where a law is obviously unconstitutional (eg the draft), and not considering more run-of-the-mill cases. I'll have to think about this a bit more.

[Grames]

I wish to append to this discussion a link to "Of Dissent and Discretion" by Glenn Harlan Reynolds, University of Tennessee College of Law.

Abstract:

A review essay centering around Clay S. Conrad's Jury Nullification: The Evolution of a Doctrine, and focusing on the largely unexamined - and not always positive - role of prosecutorial discretion. Plus, some suggestions on how to ensure that such discretion is better supervised in the future.

Keywords: prosecutor jury discretion nullification conrad

Accepted Paper Series

Date posted: September 11, 2007

11 pages pdf format.

Links:

"Of Dissent and Discretion" (available for free download)

Jury Nullification: The Evolution of a Doctrine (will cost you)

historical background: The Palladium of Justice: Origins of Trial by Jury