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More on Nullification
Monday, March 10th, 2008Via the comments section, here’s an excellent on-topic piece from 2002 by the always-terrific Joe Bob Briggs.
12 Responses to “More on Nullification”
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thanks for the education- OUTSTANDING!
A question for the lawyers out there (or anyone who knows): If someone is acquitted through jury nullification, what can the prosecutor do in terms of appeals? How easy is it in general for the state to appeal a jury verdict and is there any prtection from a judge in a higher court who just wants to say “the law is the law”?
I’m not an expert on jury nullification by any means, but as far as appealing a nullification verdict is concerned, I can’t really think of any direct means of appealing it since appeals generally deal with questions of law, not fact. The most likely scenario I could envision would be where the losing party moves the trial judge for a judgment not withstanding the verdict (”JNOV,” which means that no logical jury could possibly have reached such a verdict). If the judge denied the JNOV motion, the losing party could then appeal THAT decision. My guess is that if there was any evidence whatsoever that could be construed as grounds for the jury’ verdict, the nullification verdict would stand. On the other hand, if every bit of evidence weighed against the jury’s verdict, then the appellate court would have to basically rule on whether or not jury nullification is permissible.
#2: Once the jury delivers its verdict, there’s nothing the prosecutor can do. The defendant is acquitted, and can’t be tried again.
If jurors complain during deliberations that a juror is talking about nullification, a judge could declare a mistrial, or dismiss the juror and replace him, then have the jury continue with deliberations.
And I guess in theory a prosecutor could press perjury charges if a juror admits he nullified after saying during voir dire that he wouldn’t, or that he’d judge the facts, and not the law. But I’ve only heard of that happening once.
But if you nullify by simply refusing to convict, without explicitly explaining that you’re nullifying, there’s really nothing they can do.
Sorry, Radley. I completely overlooked the fact that a JNOV motion is civil in nature (guess what kind of law I practice…). Naturally there are plenty of civil cases which are tied to the WoD, but my guess is that nullification isn’t as prevalent outside of a criminal context.
Interesting. I wonder what all of the enthusiasts would make of another situation. I was on a jury about 8 years ago in which a person was suing for wrongful termination. 11 of us were convinced that the employer (the State of Texas) had, in fact, violated its own published rules and had railroaded the employee for reasons other than job performance, to the point of inventing documentation shown at trial to be bogus. One juror refused to agree to our conclusion. That juror cited testimony that the plaintiff drank and was rumored (no testimony) to have done so during working hours. The juror “did not hold with drinking” and “did not think that those who drank should be on the public payroll”. After we wasted three days trying to argue the point, we were dismissed as a hung jury.
So the question is: Once you have convinced the jury that they are under no obligation to follow the law, do you care if they decide to just make up their own law and convict on that basis? (Yes, it goes the other way, too) Having imparted to them their omnipotence, how do you deal with the outcome. Somehow, despite the enthusiasm here, I am leery of the testimony concluding with a judge saying, “Well that’s it. Y’all jes go off and think on it a bit and come back and tell us what ya think.”
…but despite all the problems inherent in a “y’all go off ‘n’ come on back after yew’ve thought a spell” system - and i’ll be the first to admit there are plenty of problems with it - it’s got an 800-year history of working better than pretty much *every other* system.
i’m one of those crabby guys who thinks the world is full of dumbs***s who oughtn’t vote or breed. but the “y’all go own” system is MUCH much better than a system in which the berobed lawyer sitting on the bench says something like “y’all go off and come back with the verdict i’m going to instruct yew to deliver”, which is what we’re working up to.
Central Texas,
The jury can’t just go and make up its own laws to press against an individual. It can only decide guilty or not guilty of whatever charge the prosecutor has brought. Now I am assuming that you meant, do you mind if the jury convicts someone of a breaking a law that was not proven with the evidence just because they want him to go to jail? In practice, with 12 jurors, it would be unlikely (though not impossible) that you would get 12 jurors that want to throw someone in jail for not breaking the law just because they want to. If they have that much hatred against the accused then I guess he’s pretty much screwed anyway.
Knowledge of jury powers benefits more the person who is being prosecuted unjustly in some form or fashion. You may still have some of the 12 that are “He broke the law, and regardless of whether you or I like it, he must suffer the consequences.” The end result is you get hung juries. If a prosecutor gets enough hung juries, he MAY stop prosecuting those types of laws, or at least will be much more selective. That is the brilliance of knowledgeable jurors, even if the whole jury doesn’t agree, even one can prevent a guilty verdict. This sounds scary when one thinks about this occurring during a murder trial, for example. But how many people would acquit a murderer that had been proven beyond a reasonable doubt by the evidence to be guilty? On the other hand, if someone has been proven guilty of a far lesser crime that someone in good conscience feels is an unjust law or misapplication of an otherwise good law, that is the type of instance where the jury system DEPENDS on the good sense of the jurors to prevail in order to prevent a miscarriage of justice.
I was one of 100 candidates recruited for several trials, but all settled out of court except one. So we had 100 candidates for one trial. The defense & prosecution interviewed us publicly (I only told them my job title, age, family situation–which are all completely normal) and then they took turns eliminating candidates. So that’s 12 chosen out of 100. Since there must be a consensus to convict, it doesn’t take an advanced knowledge of statistics and psychology to understand that such a jury is hardly going to be composed of the plaintiff’s peers (in intellect, race, financial standing, etc.).
On a side note, I snuck a peek at my “candidate number” on their list when I first arrived. It was that number the defense eliminated first :-). It had to have been my job title–which is a senior engineer in a technical field.
Although I rarely like to say, “there oughta be a law”, I do believe jury selection is one area in which there should be extremely rigid and clear federal laws.
That the piece is from 2002 just underscores how much (nothing) has happened in the last five years. …Depressing.
– Has there even been ONE jury nullification anywhere recently?
From the conclusion of US vs. 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. 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 (Emphasis mine -k.)
It can’t get any plainer than that…and judges who claim otherwise and who demand that juries must follow their instructions are engaging in obstruction of justice and should be impeached.
In a part you didn’t quote, that same case says 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.”