NOTE: Given the subject matter of this post, I feel compelled to make clear this post in no way reflects the views, opinions, or positions of Brendan.
A friend of mine posted a link to this note on the idea of jury nullification.
Which got me thinking. The idea of a inalienable right to trial by jury came out of the Crown’s capricious application of the law against treason. That is, the point of juries is to nullify capricious or unethical state action. A judge can do a better and more efficient job of finding fact within the confines of the law. The point of juries then, is that you don’t trust judges not to act in collusion with the state.
Thus the question becomes, absent the positive power, right, dare I say responsibility, of nullification on behalf of juries, what is the point of having them? The ethical conscience of a community might not always be what we would like, indeed there are egregious cases of it being completely bereft of such, but none the less, the point of a jury is to reflect the conscience of the community in the court room as a check on the power of the state. And given the above, isn’t it rather unethical, if not blatantly contrary to the point of the Constitution, not to tell juries they indeed possess this power?
I’m generally inclined to agree with your post, but I assume there must be some good reason lawyers come out of law school brainwashed to frown on the idea of jury nullification.
yeah, I guess I didn’t do a good enough job of Brendan baiting….
I don’t follow your logic. The “point of juries” is that you can trust them more than judges “not to act in collusion with the state,” so therefore you think it follows automatically that they must be allowed to not just determine the facts, but rewrite the law? Huh? Why wouldn’t it be consistent with your description of the “point of juries” that they simply act as a non-collusive finder of fact, one that can be trusted more than judges “not to act in collusion with the state” with respect to facts? Certainly that gives them less power than if nullification were allowed, but it hardly renders them powerless or pointless.
I’m not taking a position on whether you’re right or wrong that jury nullification is sometimes appropriate, even mandatory. I just don’t think your argument for why it may be appropriate or mandatory makes much sense on its own terms. Perhaps you can clarify?
Heh, Brendan unwittingly proved my point in the first comment. 😉
I didn’t find dcl’s logic that difficult to follow. He is stating that part of the genesis of the jury trial was to inject into the process a way for the People to nullify the application of a particular law — whether that law be capricious as written or simply applied capriciously in a particular prosecution — in a courtroom setting to avert an injustice. He buttresses that argument with an assertion that judges are tightly bound to the state (i.e. they are a permanent member of the judicial branch and represent an implement of the government), and thus the option of jury nullification is required as a check against the judicial system in general and the judge specifically. Agree or disagree, the logic is pretty straightforward.
I suppose for me the logic follows that if the purpose of a jury is simply to be an impartial finder of facts that there are more efficient and less inconvenient ways to accomplish those goals.
The demand for an absolute right to a trial by jury must come from something deeper. And that something deeper is part and parcel from when juries arose. Out of autocratic or semi autocratic state action and capricious application of justice. To ensure justice a jury is needed to act as a check against irrational (if technically legally correct) prosecutions or laws that are wantonly unethical or investigations that proceeded in ways that the government attempts to argue are legal but are indeed wantonly unconstitutional (warrantless searches of email comes to mind). All of these things should indeed be stopped by Judges in our system. But the jury trial doesn’t come from our system it comes form Common Law (actually it predates Common Law also, but that’s a much longer story) where that check did not yet exist. The right to a trial by jury is really the right to be tried by persons of conscience. Absent that there is not a point in the expense of juries.
Thus if a jury feels that someone should not be punished by the state for some action that the state has proved our system has failed if they non the less find guilty because the judge has admonished them that they are only to find fact. This simply isn’t the case, and this admonishment is only a recent development and it is wrong. It is merely an attempt by lawyers and judges to have more control and predictability of court proceedings.
And I say all of this even though it goes very much against one of my biggest pet peeves, that both the state and our criminal justice system are far far to lenient on drivers that kill people and this issue would only get worse if juries were explicitly told they have the power to nullify. Because juries inherently have a great deal of situational bias to be sympathetic to the driver anyway.
But to me, if nullification is off the table then there really isn’t any point to bother with a jury.
I might concede I pressed the point perhaps a touch to far at the end of my post. More sensible is to say it is unethical and unconstitutional to tell juries they don’t have the power. It might be reasonable to not tell juries anything at all on the matter of nullification. I still feel that is being a bit disingenuous as to their original intended function, but is at least a little less state collusive.
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