They Do Need a Checkbox for That

SayUncle gets jury duty, and notes that among the reasons listed for being dismissed does not include, “will judge the facts and the law.” Well, we can’t have that, the system working how it was intended to. That would lead to chaos!

I’ve written in the past, though I can’t for the life of me find it now, about my own views on nullification. It’s really one of those things they ought to teach in civics class, to whatever extent they even teach civics anymore. Juries are a check against the power of the state, and in the United States, it’s generally worked to oppose highly unpopular laws:

In the United States, jury nullification first appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act. Later, during Prohibition, juries often nullified alcohol control laws,[23] possibly as often as 60% of the time.[24] This resistance may have contributed to the adoption of the Twenty-first amendment repealing Prohibition, the Eighteenth amendment.

Of course, the flip side of nullification is that it was also extensively used in the reconstruction era to acquit those who committed crimes against blacks, but were unambiguously guilty.

But generally speaking, I believe in the people judging the law, as well as the facts. The only caveat there is, the legal system has to work, so I would generally frown on  one person hanging a jury because they don’t agree with the law. That has to really be over a matter where there’s a general sense of the members of the jury that the law is unjust, or it’s particular application is unjust. But in order for that to happen more often, people have to know that a jury’s verdict is final.

11 thoughts on “They Do Need a Checkbox for That”

  1. Heh, I’m old enough that in my days they still taught us about John Peter Zenger and how his 1735 jury nullified seditious libel as long as it was true, and how this was a very good and important thing (landmark according to Wikipedia).

    Now, I grant you that was before the United States formed, but I was led to believe that this case and the principle of jury nullification were well established long before slavery became the issue of the day. Imagine the things they taught in flyover country in the late ’60s and ’70s….

    1. Oh, I forgot to make clear this was in the public school system of my home town of Joplin, MO (unless this was the sort of thing taught to first graders in the Christian school I attended while my father was posted to Alabama, which I doubt. Even if the people running it did ultra-neat things like putting everyone in the chapel/auditorium to watch things like Bell Science films (many directed by Frank Capra), which along with the 2nd run of Johnny Quest and the moon race ensured I’d pursue a science career. Oh, yeah, all things nuclear were still cool back then. :-).

  2. I think William Penn was released because a jury refused to convict, if my memory is correct. If I don’t have my stories mixed up, they even refused to convict after being jailed for a period of time for their refusal to convict. And that was all the way back in the 1600’s.

    Anyway, Lysander Spooner’s “Essay on the Trial by Jury” is an excellent read. It really gives you a sense of just how far we’ve veered off course.

    1. Yeah, you’re right about William Pen.

      Digging a bit more into Wikipedia, there’s a rich history of common law jury nullification, and apropos of your point about Penn%27s jury being jailed as well it%27s clear there was a long period where trials the state cared about were fantastically more adversarial that today, where the jury itself was on trial and liable to prison or fines if they came to the wrong verdict or a second jury came to the right verdict.

  3. Jury chatter is usually about ways to get off. I personally would volunteer monthly if I had the time. A few smart folks would seriously break the system.

    And it needs breaking.

    1. I’ve found it hard to get ON a jury. My wife was called once since we moved here. I was called shortly before we moved here. I had served on a Court Martial, and was looking forward to comparing a civilian jury to it. However, they kept postponing the trial, and our move finally came and I never did serve on that jury.

  4. Something I’ve wondered about is, I was once listed as a regional contact for FIJA, and I may still be, though it’s been more than 20 years since I’ve been active. If called for jury duty, should I disclose that fact, even if I’m not asked during voir dire?

    What I’m thinking is, I know some jurors have been charged with perjury for not volunteering facts about themselves that they were not asked, that later were presumed to have biased them when they hung the jury they served on. To the best of my recall those perjury prosecutions weren’t successful, but defending yourself is expensive even when you’re vindicated. It would be much more desirable to just not risk getting into the situation!

  5. “Of course, the flip side of nullification is that it was also extensively used in the reconstruction era to acquit those who committed crimes against blacks, but were unambiguously guilty.”

    I think those examples were more of a case of the judges, prosecutors and defenders all conspiring to make sure that the only people that got on the jury were the people they knew would vote a certain way.

  6. Is there an actual legal precedent for nullification in the US? In the sense that it is written down as a known practice? I always assumed it was something Judges allowed. But if they wanted to, they could always overturn what the Jury ruled.

    1. It’s an inherent power of juries. A single juror can keep his mouth shut and a minimum force a mistrial. Or the whole jury can. And while judges can overturn guilty verdicts, they aren’t allowed to overturn a finding of not guilty, although they could and I think have declared mistrials when they detected nullification, some jurors have even been prosecuted for it (see the above “keep your mouth shut … suggestion).

      I’m told feminists pushed for lower sentences for rape in various states because some were so high juries would frequently acquit because they thought the sentences were too disproportionate for the particular crime they were judging.

  7. I may have mentioned thus before, but I learned about jury nullification in college, in a required ethics class (the requirement was for computer science majors). And this was lessees than 20 years ago.

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