Jury Nullification-A legal weapon against the system

This is directly from Wikipedia. This is important info that any prospective juror sohould be aware of, but the court WILL NOT INFORM THEM. This could be a very handy weapon against the legal system.


Jury nullification
From Wikipedia, the free encyclopedia

Jury nullification refers to a rendering of a not guilty verdict by a trial jury, disagreeing with the instructions by the judge concerning what is the law, or whether such law is applicable to the case, taking into account all of the evidence presented. Although a jury’s refusal relates only to the particular case before it, if a pattern of such verdicts develops, it can have the practical effect of disabling the enforcement of that position on what is the law or how it should be applied. Juries are reluctant to render a verdict contrary to law, but a conflict may emerge between what judges and the public from whom juries are drawn hold the law to be. A succession of such verdicts may signal an unwillingness by the public to accept the law given them and may render it a “dead-letter” or bring about its repeal. The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict than officials who may be unduly influenced. Jury nullification is a reminder that the right to trial by one’s peers[1] affords the public an opportunity to take a dissenting view about the justness of a statute or official practices.

I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.
—Thomas Jefferson, 1789 letter to Thomas Paine

Historical examples include American revolutionaries who refused to convict under English law,[2] juries who refuse to convict due to perceived injustice of a law in general,[3] the perceived injustice of the way the law is applied in particular cases,[4] and cases where the juries have refused to convict due to their own prejudices such as the race of one of the parties in the case.[5]

Jury nullification is a de facto power of juries, and is not normally disclosed to jurors by the system when they are instructed as to rights and duties. The power of jury nullification derives from an inherent quality of most modern common law systems—a general unwillingness to inquire into jurors’ motivations during or after deliberations. A jury’s ability to nullify the law is further supported by two common law precedents: the prohibition on punishing jury members for their verdict, and the prohibition on retrying criminal defendants after an acquittal (see related topic double jeopardy).

Jury nullification is the source of much debate. It is maintained that it is an important safeguard of last resort against wrongful imprisonment and government tyranny. It is also viewed as an abuse of the right to a jury trial that undermines the law and violates the oath sworn to by jurors. There are fears that nullification could be used to permit violence against socially unpopular factions.[citation needed] It can be argued that jury nullification could be used to nullify important defendants’ rights, such as the Fifth Amendment right not to testify or the right of self-defense.[citation needed] While supporters argue that jury nullification can be used only to acquit and not to convict because a judge must set aside a conviction that is clearly at odds with the law and the facts, the fact that jury verdicts are treated with great deference in United States courts means that the safeguards are not absolute and a jury that dislikes a defendant has the ability to convict an innocent defendant through nullification. Jury nullification may also occur in civil suits, in which this distinction between acquittal and conviction is of course irrelevant.[citation needed]

Nevertheless, there is little doubt as to the ability of a jury to nullify the law. Today, there are several issues raised by jury nullification.

*    First, whether juries can or should be instructed or informed of their power to nullify.
*    Second, whether a judge may remove jurors “for cause” when they refuse to apply the law as instructed.
*    Third, whether a judge may punish a juror for exercising his power of jury nullification.

[edit] Common law precedent

The early history of juries supports the recognition of the de facto power of nullification. By the 12th century, common law courts began using juries for more than administrative duties. Juries were composed primarily of “laymen” from the local community. They provided a somewhat efficient means of dispute resolution with the benefit of supplying legitimacy.

Largely, the earliest juries returned verdicts in accordance with the judge or the crown. This was achieved either by “packing the jury” or by “writ of attaint”. Juries were packed by hand-selecting or by bribing the jury so as to return the desired verdict. In cases of treason or sedition, this was frequently the case. In addition, the writ of attaint allowed a judge to retry the case in front of a second jury when the judge believed the first jury returned a “false verdict”. If the second jury returned a different verdict, that verdict was imposed and the first jury was imprisoned or fined.

This history, however, is marked by a number of notable exceptions. In 1554, a jury acquitted Sir Nicholas Throckmorton, but was severely punished by the court. Almost a century later, in 1649, a jury likewise acquitted John Lilburne for his part in inciting a rebellion against the Cromwell regime. The theoretician and politician Eduard Bernstein wrote of John Lilburne’s trial:

His contention that the constitution of the Court was contrary to the fundamental laws of the country was unheeded, and his claim that the jury was legally entitled to judge not only as to matters of fact but also as to the application of the law itself, as the Judges represented only ‘Norman intruders’, whom the jury might here ignore in reaching a verdict, was described by an enraged judge as ‘damnable, blasphemous heresy.’ This view was not shared by the jury, which, after three days’ hearing, acquitted Lilburne — who had defended himself as skilfully as any lawyer could have done — to the great horror of the Judges and the chagrin of the majority of the Council of State. The Judges were so astonished at the verdict of the jury that they had to repeat their question before they would believe their ears, but the public which crowded the judgment hall, on the announcement of the verdict, broke out into cheers so loud and long as, according to the unanimous testimony of contemporary reporters, had never before been heard in the Guildhall. The cheering and waving of caps continued for over half an hour, while the Judges sat, turning white and red in turns, and spread thence to the masses in London and the suburbs. At night bonfires were lighted, and even during the following days the event was the occasion of joyful demonstrations.

By the late 17th century, the court’s ability to punish juries was removed in Bushnell’s case[6] involving a juror on the case against William Penn.

In 1670, William Penn was arrested for illegally preaching a Quaker sermon. Despite the fact that the judge demanded a guilty verdict and that preaching the sermon was illegal, the jury in that case acquitted Penn and was subsequently imprisoned, fined, and kept for three days without food or water as a result. Four jurors refused to pay the fine, and one, Edward Bushnell, obtained a writ of habeas corpus. Chief Justice Vaughn, sitting on the highest court in England, discharged the writ, released them, and called the power to punish a jury “absurd”.

In 1681, a grand jury refused to indict the Earl of Shaftesbury. Then in 1688, a jury acquitted the Archbishop of Canterbury and six other Anglican bishops of seditious libel.

Juries continued, even in non-criminal cases, to act in defiance of the crown. In 1763 and in 1765, juries awarded £4,000 and £300 to John Wilkes and John Entwick, respectively, in separate suits for trespass against the crown’s messengers. In both cases, messengers were sent by Lord Halifax to seize allegedly libelous papers.

In Scotland Jury Nullification had a profound effect bringing in (or as others believed reviving) the verdict of “not proven”. It was in 1728 that one Carnegie of Finhaven accidentally killed the Scottish Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of “proven” or “not proven” depending on whether they believed the facts proved the defendant had killed the Earl. However if the jury brought in a “proven” verdict they would in effect cause this innocent man to die. To avert this injustice, the jury decided to assert what it believed to be their “ancient right” to judge the whole case and not just the facts and brought in the verdict of “not guilty” which remains in Scotland to this day. Over time however, juries have tended to favour the “not guilty” verdict over the “not proven” and with this the interpretation has changed. Now the “not guilty” verdict has become the normal verdict when a jury is convinced of innocence and the “not proven” verdict is only used when the jury is not certain of innocence or guilt.

[edit] Nullification in the United States

John Peter Zenger, a printer in the English colony of New York, was tried for seditious libel in 1734 for publishing a newspaper critical of the governor. The jury acquitted Zenger despite the judge’s instructions; this is perhaps the most famous early instance of jury nullification in the colonies that became the United States.

The use of the jury to act as a protection of last resort was espoused by many influential people surrounding the framing of the U.S. Constitution. For example, John Adams said of jurors: “It is not only his right but also his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

First Chief Justice of the US John Jay wrote: “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… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy”.

It was over time that judicial and legal opinion slowly changed to consider jury nullification only a power and not a right of juries, as judges and prosecutors wanted stricter enforcement of laws that juries nullified. This shift stemmed from the 18th century conflict between two factions of English jurists, the first led by Lord Camden, which was originally prevalent in what became the United States, and the second led by Lord Mansfield. The position of the latter was called “Mansfieldism” by Jefferson[7] and the shift has been called “Mansfieldization”.[8]

[edit] Nullification in practice

Nullification has a mixed history in the United States. Jury nullification appeared in the pre-Civil War era when juries occasionally refused to convict for violations of the Fugitive Slave Act. However, during the Civil Rights era, all-white juries were known to refuse to convict white defendants for the murder of African-Americans.[9] During Prohibition, juries often nullified alcohol control laws,[10] possibly as often as 60% of the time.[11] This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition.

In the 21st century, many discussions of jury nullification center around drug laws that some consider unjust either in principle or because they are seen to discriminate against African-Americans. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification,[11] and a recent rise in hung juries (from an average of 5% to nearly 20% in recent years) is considered additional evidence that juries have begun to consider the validity or fairness of the laws themselves.[12]

[edit] Court rulings

In recent years, judges seem to like jury nullification less and less. While unable to take away the power of nullification, they have done much to prevent its use.

The first major decision in this line was Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840),[13] which held that the bench could override the verdict of the jury on a point of law.

The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. Jurors are likely to be struck from the panel during voir dire if they reveal awareness of the concept of jury nullification.[14]

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.

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. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. U.S. vs Moylan, 417 F 2d 1002, 1006 (1969).[1]

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

…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. Id.

In 1972, in United States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense’s chance to instruct the jury about the power to nullify. However, in Dougherty the then-chief judge David L. Bazelon authored a dissenting in part opinion, arguing that the jury should be instructed about their power to render the verdict according to their conscience if the law was unjust. He wrote that refusal to allow the jury to be instructed constitutes a “deliberate lack of candor”.[15]

In 1988, in 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 1997, in U.S. v. Thomas[16], the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).

We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

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.[17] However, the ruling could not overturn the practice of jury nullification itself because of double jeopardy: a defendant who has been acquitted of a charge cannot be charged a second time with it, even if the court later learns jury nullification played a role in the verdict.

Although the Supreme Court has not directly confronted the issue recently, dicta in several opinions by Justice Antonin Scalia seems to imply a strong belief in the importance of the jury, in which the potential for nullification might be thought implicit; juries, Scalia has argued, are “the spinal column of American democracy,” Neder v. United States, “function as circuitbreaker[s] in the State’s machinery of justice,” Blakely v. Washington, and while trial by jury “has never been efficient… it has always been free,” Apprendi v. New Jersey.

[edit] Advocacy groups

Some advocacy groups and websites such as the:

*    Fully Informed Jury Association
*    The Jury Rights Project
*    The Jury Education Committee

argue that private parties in cases where the government is the opponent have the right to have juries be instructed that they have the right and duty to render a verdict contrary to legal positions they believe to be unjust or unconstitutional. These and other organizations contact citizens directly and lobby for legal reforms regarding instructions given to jurors.

*    Constitution Society Presents historical documentation that supports the proposition that to be a lawful jury trial, all issues of law must be argued in the presence of the jury, with the exception of those that cannot be argued without revealing evidence that is properly excluded.

[edit] Opponents

A notable opponent of jury nullification is former judge and unsuccessful Supreme Court nominee Robert Bork. In an essay he wrote jury nullification is a “pernicious practice”.[18]

[edit] Nullification in Canada

Although very rare, nullification does occur in Canada, however the Crown (prosecution) has a broader power to appeal rulings than in the US. So while a jury may ignore a judge’s direction, Canadian law allows the prosecution to appeal from an acquittal (see also Double jeopardy). The often referenced case of jury nullification being appealed all the way to the country’s highest court in Canada is the 1988 Supreme Court case, R. v. Morgentaler, 1988 SCR 30 [2]. In addition, the Supreme Court of Canada, in a more recent decision R. v. Krieger 2006 SCC 47 [3], confirmed that juries in Canada have the power to refuse to apply the law when their consciences require that they do so. The issue was also touched upon in R. v. Latimer, 2001 SCC 1 [4], where “The trial did not become unfair simply because the trial judge undermined the jury’s de facto power to nullify. In most if not all cases, jury nullification will not be a valid factor in analyzing trial fairness for the accused. Guarding against jury nullification is a desirable and legitimate exercise for a trial judge; in fact a judge is required to take steps to ensure that the jury will apply the law properly.”

[edit] Nullification in the UK

In 1982, during the Falklands War, the British Navy sunk an Argentine Cruiser – the “ARA General Belgrano”. A government employee (civil servant) named Clive Ponting leaked two government documents concerning the sinking of the cruiser to the press, and was subsequently charged with breaching the Official Secrets Act. The judge in the case directed the jury to convict Ponting as he had clearly broken the Official Secrets Act by leaking official information about the sinking of the Belgrano during the Falklands War. His main defence, that it was in the public interest that this information be made available, was not a defence at all in law, but the jury nevertheless acquitted him, much to the consternation of the Government. He had argued that he had acted out of ‘his duty to the interests of the state’; the judge had argued that civil servants owed their duty to the government.

[edit] Nullification in popular fiction

On the American legal drama Law & Order, in the eighth season episode “Nullification,” the members of a Christian Patriot militia are indicted for murder and armed robbery for their role in the attempted hijacking of an armored car. At trial, the leader of the militia (Denis O’Hare), who represents the group pro se, argues that they are fighting a war against the illegitimate government of the United States, and that therefore the defendants are prisoners of war unlawfully detained in violation of the Geneva Conventions. In his testimony, and later in his closing argument, he explicitly argues in favor of jury nullification in the case as a blow against the “New World Order” and government tyranny. Although the prosecution manages to disqualify and replace two jurors who express sympathy with the militia cause, the trial ends in a hung jury, as one or more jurors agree with the argument in favor of nullification.

Although that is the only time that Law & Order specifically addresses the issue of jury nullification, it has occurred in other episodes. In the eighth season episode “Burden,” for example, a jury, deprived of evidence demonstrating the work of a serial killer, votes to acquit an egomaniacal physician (John Hickock) who claims that the death of a young boy in a persistent vegetative state was an act of euthanasia. Later, in the eleventh season episode “Standoff,” a jury acquits a corrections officer (Matt Mulhern) who hired a contract killer to eliminate his fiancee’s rapist.

On the legal drama The Practice, which follows criminal trials from the defense attorney’s perspective, the characters use jury nullification on a fairly regular basis, especially when they defend clients accused of so-called victimless crimes such as prostitution, bookmaking, or drug possession. The strategy usually used in such situations, known as “This Is America” to its practitioners, was essentially an appeal to patriotism.

During the first season of the show, a multi-episode story arc concerns the defense of a grieving father (Jack Laufer) who murdered his daughter’s recently-acquitted killer (Greg Wrangler). Although the official defense is diminished responsibility, it amounts to a pitch for jury nullification, given overwhelming evidence of premeditation. After a prosecution spanning four episodes, the defendant is acquitted on all charges.

Published in: on June 16, 2007 at 4:35 pm  Leave a Comment  

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