Wednesday, April 30, 2008

The Jury Nullification Problem

Recently I was called in for jury duty. When we got to the stage where the case was described, it turned out that it involved someone whose only offenses consisted of concealed carry of a handgun.

I informed the judge that I had been at least peripherally involved in the academic controversy over whether people should be allowed to carry concealed firearms. When the judge asked if I would judge the case according to the law rather than according to my own moral beliefs, I replied (truthfully) that I would not. I was dismissed from that case, sent back to be reassigned and, since they apparently didn't need jurors for any other cases at that point, sent home.

On the one hand, I think my position was correct. Right and wrong are not made by acts of the legislature. I don't have an obligation to help other people defend their rights, but I surely ought not help cause someone to be punished for doing something that I believe he has a right to do.

On the other hand, I am not at all sure that the world would be a better place if my position on the general issue were more widely held. One can easily imagine a world where members of some unpopular group—homosexuals, say, or atheists—were routinely murdered, with the murderers getting off because at least one member of the jury approved of the murder and voted accordingly.

That would not happen if potential jury members who held such views announced them in advance, as I announced mine, and so did not end up on the jury trying that case. But although I chose to volunteer my views on the issue of concealed carry, I do not feel I was morally obliged to do so. I can imagine a more extreme case, one where someone was at risk of execution or life imprisonment for violating what I considered a clearly unjust law, where I would think the proper thing to do would be to conceal my view on the subject in order to get on the jury and there prevent the unjust outcome.

The situation feels paradoxical, since I am both approving of a moral view and suggesting that its widespread acceptance might have seriously bad consequences. But logically speaking, there is no inconsistency. I don't claim to derive my moral views from something like Kant's categorical imperative, some rule requiring that I support those rules that I would like everyone else to follow.

Even the apparent inconsistency depends on the level at which my view is described. If it is "one ought to act according to one's moral views even when they disagree with the law," there is a potential problem. But that problem comes from other people having moral views that I think mistaken. It is only correct moral views—I, of course, think my views are correct, which is what it means to say they are my views—that I think one ought to act according to.

Few people would consider it odd or paradoxical to say that people ought to act morally. But suppose someone believes that it is moral to kill atheists. Having said that I think people ought to act morally, must I also say that people ought to kill atheists? Clearly not. So a better way of stating the situation would be to say that, in my view, widespread acceptance of a single true statement might have bad consequences, as a result of the combined effect of that true statement and other untrue statements.

There is no reason why a statement cannot be both true and dangerous. Indeed, the preceding sentence is such a statement.

30 Comments:

At 12:33 PM, April 30, 2008, Blogger Seth said...

It's illegal to lie in voir dire, so concealing your beliefs can be a crime.

Everyone ought to act morally. If someone has what he claims are moral views that are wrong, following them is not moral. (Yes, I realize that this translates to "Everyone should act the way I think is moral." I believe that. I don't think that acting that way ought to be enforced by anything more than my approbation.)

 
At 12:38 PM, April 30, 2008, Blogger Jonathan said...

I've never been called to serve on a jury, but I sympathize with your situation.

Perhaps you were over-scrupulous? In all legal cases, the members of the jury are not going to be legal experts -- most will surely know less about law than you do -- and are all bound to approach the case with their own individual biases and prejudices.

You are not peculiar in having your personal views on the case. You are peculiar in announcing them and disqualifying yourself.

But that's up to you. I believe that many people dislike jury service (which tends to be inconvenient) and would be delighted to find themselves disqualified from it.

 
At 1:46 PM, April 30, 2008, Blogger David Friedman said...

Seth points out that concealing my beliefs could be a crime. On the other hand, it would be a very difficult crime to prove if the juror not only concealed them in voir dire but in jury deliberations--if he said that he wasn't convinced the defendant was guilty, when in fact his objection was to the law he was guilty under.

Jonathan suggests that I was unusual only in raising my views. I think it's pretty clear from what happened that, if the judge and the attorneys had known my views, at least one of them would have wanted me disqualified. I'm not at all sure I could vote to convict on those charges, whatever the evidence.

Jonathan raises the fact that getting out of jury service may be a benefit. In my case, it wasn't clear in advance if I was getting out or only switching to another case, perhaps a longer one. But I can certainly imagine someone pretending to views that would disqualify him in the hope of getting out.

 
At 1:49 PM, April 30, 2008, Anonymous Arthur B. said...

The situation only looks paradoxical.

What is moral is not to act in accordance to "one own's moral view" as opposed to "what the law says", but to act morally regardless of what the law says.

It only becomes paradoxical because you somehow include moral relativism in the equation, but such a relativism is obviously not Kantian.

I believe jurors should apply natural right regardless of what the law says, and I am comfortable extending this moral requirement to everyone.

 
At 3:39 PM, April 30, 2008, Anonymous Anonymous said...

Why can plantifs in a civil case demand a jury but defendents in a criminal case be denied a jury (unless the crime is very serious)?

 
At 3:56 PM, April 30, 2008, Anonymous whswhs said...

I'm a little surprised that you got away with saying you would exercise jury nullification. The last time I was called for jury duty, I did not want to say, "I will disregard the law," because I have heard of people being legally punished for doing so—and I didn't want to find out that this was true the hard way.

Instead, I ended my response to the obligatory questions by saying, "I have doubts about my ability to be impartial in this case."

Naturally, they asked me to explain. And I said that I did not believe that the state had any legitimate interest in controlling the use, possession, sale, or production of addictive drugs; that I recognized that it was my legal duty to make a decision based not on my personal beliefs, but on the law; but that this would put me in a position where my legal duty required me to do something that I felt was wrong, and thus I would be in a state of inner conflict, which would make it hard for me to weigh the evidence objectively—for example, I might be excessively skeptical about the testimony of police officers in this case. I discussed the concept of cognitive dissonance briefly and explained how it applied.

They thanked me, and had us wait outside, and a quarter hour later the bailiff came out and told me I was free to go.

The interesting thing about this, for me, is that while I was talking about my difficulty in dealing with this case, I saw the prosecuting attorney trying to resist visibly smiling. . . .

 
At 5:59 PM, April 30, 2008, Blogger David Friedman said...

Anonymous seems to be misinterpreting the situation. The criminal defendant is entitled to a jury. But the process of selecting jurors involves a stage at which some potential jurors get eliminated for various reasons, and replaced with others.

 
At 7:47 PM, April 30, 2008, Anonymous DDR said...

<< On the other hand, I am not at all sure that the world would be a better place if my position on the general issue were more widely held. >>

Here's a possible solution to the dilemma. Ask yourself if your position is absolute (would be valid in all societies), or conditional (is valid now, but might not be your preference in other conceivable circumstances).

If your position is absolute, there is no worry about its applicability no matter how many people adopt it.

If your position is conditional, you don't need to worry about what would happen if everyone agreed with you. You would be free to alter your thinking if universal adoption caused problems. This kind of situation comes up all the time.

For example, say you want to be a computer programmer. In a Kantian sense, that could be an immoral position, because if everyone wanted to be a computer programmer, society would collapse. But the person who wants to be a computer programmer only wants to be one in the context of the present situation (job opportunities, etc.). So his preference is highly conditional on the present situation.

You might think that concealed carry should not be punished in our present society. But are there circumstances you can imagine where you would favor punishing concealed carry? Suppose it became common and led to an unacceptable murder rate. You might then say that new information has led you to revise your views.

So, a better statement of your position might be: In our present society, I do not believe that concealed carry should be punished.

 
At 8:55 PM, April 30, 2008, Anonymous whswhs said...

For example, say you want to be a computer programmer. In a Kantian sense, that could be an immoral position, because if everyone wanted to be a computer programmer, society would collapse. But the person who wants to be a computer programmer only wants to be one in the context of the present situation (job opportunities, etc.). So his preference is highly conditional on the present situation.

I think that kind of reasoning can so easily lead to ridiculous conclusions that it's better not pursued. For example, I prefer women to have sexual partners. If everyone had that preference, then (a) as a man, I would be left without a sexual partner, and (b) the human race would stop reproducing (or would reproduce only through artificial insemination). So obviously that doesn't work as a universal rule. But does that mean I can't have a preference, or that everyone is morally obligated to be bisexual?

I suppose by drawing lots and lots of boundary conditions around the choice of which preferences are to be universalized, we could avoid such problems. But the cost of defining those boundary conditions seems likely to be high.

On the other hand, though I Am Not A Kantian, I'm fairly sure that universalizing any preferences is not what Kant was talking about at all. His Categorical Imperative is "act so that you can will that the maxim of your action should be a universal law." That sounds as if he's talking about rules of conduct, and not about values or preferences. And, in fact, he talks about actions motivated by inclination as being "pathological" rather than "moral"—for example, saving the life of a friend is pathological because you would personally prefer the friend to live rather than die; a moral act would be to save the life of any human being simply out of regard for the rule that human life is to be preserved. That whole mode of thought seems to rule out any consideration of preferences, and any attempt to evaluate them by universalizing them.

After all, in Kant's time, some people were philosophy professors at Königsberg. But if everybody became a philosophy professor at Königsberg, then the city would have been insanely crowded, at least until they all starved to death because no one was raising crops or milking cows. So I don't think that was what Kant meant.

 
At 9:05 PM, April 30, 2008, Anonymous Nicholas D. Rosen said...

I've given some thought to this, although I've never been summoned to serve on a jury (well, summoned once, but the case was apparently either dropped or plea-bargained, so I didn't actually serve).

I believe that I should act according to law. If it were a case of possession of marijuana, I don't like the law, and I might have an extra degree of skepticism toward a police witness, for example, but I would adhere to the law, rather than substituting my opinion of what the law should be. In a case of gun possession, I would also adhere to the law, the Second Amendment in particular. Based on that, I would hold a statute clearly contrary to the Constitution to be invalid, and I would refuse to convict under it, no matter what the evidence.

That is a solution with which I am not entirely satisfied. In Nazi Germany, I believe that there would be a duty to disobey the law and sabotage it as far as one could, even if the law in question were perfectly valid and constitutional in a strictly juridical sense.

But where does one draw the line?

 
At 9:27 PM, April 30, 2008, Blogger montestruc said...

Well one thing that would tend to prevent me, and I think David from lying about such is the shear volume of words we have written on the internet on the subject making statements against the drug war, and in favor of jury nullification.

I imagine that they could be used as evidence against either of us if a prosecutor had one of us hang a jury, or help get someone acquitted on charges. That is where the juror in question had a long history of posting on the subject.

 
At 12:58 AM, May 01, 2008, Blogger Jonathan said...

Nicholas says, "In Nazi Germany, I believe that there would be a duty to disobey the law ... But where does one draw the line?"

I don't think it's consistent to say, "The law takes precedence over my own sense of what is right, um, except in certain extreme cases when it doesn't."

Personally, I go by my own sense of what is right, always. If I'm in agreement with the law, so much the better. If I'm not in agreement with some particular law, I may obey it for fear of punishment, but I don't respect it. Laws are created by mere humans who are more or less as fallible as I am.

 
At 1:44 AM, May 01, 2008, Anonymous Anonymous said...

"A defendant who is prosecuted in a single proceeding for multiple petty offenses does not have a Sixth Amendment right to a jury trial where the aggregate prison term authorized for the offenses exceeds six months. The right to a jury trial is reserved for defendants accused of serious offenses and does not extend to petty offenses. Duncan v. Louisiana, 391 U.S. 145, 159..."

The Supreme Court has ruled there is no Constitutional right to a jury trial except for very serious felonies with punishment exceeding six months in prison.

 
At 5:07 AM, May 01, 2008, Blogger jimbino said...

David,

You'd have greater moral dilemmas in Texas. Your being a law-school prof would probably serve to exclude you from jury service, since Texas jurors cannot decide questions of law, only of facts.

Furthermore, a juror in Texas has a duty to uphold the Texas Constitution, which bars atheists from service as jurors. This has been held unconstitutional in court, but the words are still there in the Texas Constitution to insult you.

 
At 5:36 AM, May 01, 2008, Anonymous Nils said...

The Supreme Court has ruled there is no Constitutional right to a jury trial except for very serious felonies with punishment exceeding six months in prison.

The 6th: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury [...]"

No mention of "very serious" nor any mention of length of incarceration.

So clearly the Supreme Court ruling on Duncan v. Louisiana is wrong.

 
At 7:47 AM, May 01, 2008, Blogger Charles said...

"Texas jurors cannot decide questions of law, only of facts."

Could you (or anyone willing) elaborate a bit on this. I was under the (apparently mistaken) impression that (in the US) the fact-law responsibility was universally jury-judge. That seems logical to me since the average citizen obviously doesn't know the law in detail.

Thanks - Charles

 
At 8:49 AM, May 01, 2008, Blogger Michael said...

"I am not at all sure that the world would be a better place if my position on the general issue were more widely held."

Here attention to fact is helpful. The world will always be full of many views, which point people considering action in different directions. I.e., no need to worry about this contingency.

And having a little subversion built into the system is probably good. Negative feedback improves system stability.

 
At 10:05 AM, May 01, 2008, Blogger Charles said...

On second thought, I don't think the comment I intended turns on the fact-law issue, so here goes.

"Right and wrong are not made by acts of the legislature."

This issue seems to me a little less clear-cut than is implied by this terse statement. In theory, laws in a democracy reflect the judgment of the citizens (in the US, of course, actually their reps) as to what limitations on liberty are necessary for an orderly society. Some reflect opinions on moral obligation, so in that sense it appears that some laws - in particular, criminal laws - do reflect the majority's opinions on "right and wrong". Of course, if "right and wrong" was intended to suggest some universal absolutes, my question would be (the totally predictable) "and from whence come these and how do they become known?" And if it was meant to address an individual's personal opinion, how is that relevant"?

But it strikes me that in any event, in principle once a law is in place most subsequent actions have little to do with moral issues. I don't see a criminal's decision whether to obey a law as a moral decision, just a cost-benefit trade (or maybe effectively a temper tantrum). Similarly with enforcing the law - a contractual commitment that government functionaries make - and with jury participation wherein a juror is asked to make a decision not on any moral issue but on factual (in the broad sense, sometimes including - apparently - legal) questions. (Note: I've been told elsewhere that this view is clearly wrong, but no elaboration was forthcoming. So for now, I'm sticking with it).

So in my (clearly wrong?) view, the sole question is what one does vis-a-vis enforcement of a law which violates one's personal moral opinions. A priori, a legislator can vote against it. But a posteriori, one has essentially two options: accept it, though possibly working to have it overturned, or refuse to accept it and engage in civil disobedience with respect to it (including things like jury nullification). And the apparently generally accepted "moral" rule re civil disobedience is that one accepts the consequences. Of course, any individual may reject the "generally accepted" rule and make a different moral decision - and live with it.

As to Prof F's specific situation, it appears that the judge offered him the option of civil disobedience, Prof F honorably accepted the challenge, and the judge (wisely, IMO) blinked. I see no fault.

"One can easily imagine a world where members of some unpopular group ..."

I may be missing a subtlety, but isn't this the unimagined deep South (et al) re blacks prior to about the 70s (or maybe even occasionally today, for all I know)?

- Charles

 
At 11:49 AM, May 01, 2008, Blogger David Friedman said...

Charles writes:

"in particular, criminal laws - do reflect the majority's opinions on "right and wrong""

It could be. But things don't become true just because the majority thinks they are true. I don't think you would want to say that Iraq had weapons of mass destruction--since (let us suppose) a majority of Americans thought they did--and only stopped having them when American opinion changed.

"and with jury participation wherein a juror is asked to make a decision not on any moral issue but on factual (in the broad sense, sometimes including - apparently - legal) questions."

If someone asks me to murder someone, I'm not obliged to do it--indeed, under most circumstances, I'm obliged not to do it. So why am I obliged to vote to put someone in prison when I believe he has violated the law but also believe he has done nothing wrong? Just because that was what I was asked to do?

"I may be missing a subtlety, but isn't this the unimagined deep South ..."

That would be one possible example, but I can think of lots of others.

 
At 12:37 PM, May 01, 2008, Blogger Steve_Roberts said...

An unpleasant situation to be in. The government demands that you put your conscience aside as a juror, or risk punishment (which I guess would be very damaging to the reputation and liveliehood of a law professor). As a clever guy, you head for the wriggle-room which gets you of the hook - at the cost of the defendant in the trial being unable to benefit from your principles. Welcome to the modern world ! It's hard to see why trial by jury was enshrined in Magna Carta if not to bring the jurymen's principles to bear on the case they try.

 
At 3:00 PM, May 01, 2008, Blogger Antti-Juhani Kaijanaho said...

When I started serving as a lay judge (a position not at all similar to a juror in the USA, though both are legal laypersons), I swore the judge's oath. I swore to judge based on law. I believe I was right to do so: it is very important that law is applied equally in all cases.

(In Finland, criminal cases are generally tried in front of a four-judge panels, of which three are laypersons and the presiding judge is a professional.)

I find the juror system deeply distressing. The jury nullification issue is just one of the reasons for that.

 
At 4:01 PM, May 01, 2008, Blogger Charles said...

"things don't become true just because the majority thinks they are true"

Even ignoring philosophical issues wrt "truth", I don't see how "true" applies here. I addressed public opinion on the issue of moral obligation. I have become convinced that that although opinions on objective issues may be right or wrong/true or false, opinions on moral issues can't. I rather hoped that my construction of the relevant paragraph suggested this position.

"why am I obliged to vote to put someone in prison ..."

And I'm not sure what is meant by "obliged" here - I didn't use it. If called to jury duty, one has options (decline to serve, agree to serve and engage in jury nullification, et al), one of which is chosen; and there are consequences. The only "obligation" I see is to live with one's choice and its consequences - which isn't really an obligation in any meaningful sense as there's no alternative.

Personally, I avoid using "morality language". At best I think it serves no useful function and at worst it obfuscates. To me, "X is immoral" means nothing more than "I/we disapprove of X", possibly with an implicit exclamation point (cf Ramsey's ladder).

- Charles

 
At 5:11 PM, May 01, 2008, Blogger happyjuggler0 said...

David,

I'd love to be on such a jury, and if it were not for your fame and public record I'd have said you were inexcusably irresponsible for telling the judge what you told him. But given your special circumstance I can see how in your case you might be in jeopardy if you did so.

To me it is clear as day that it is simply impossible to declare someone guilty of carrying concealed given the constitutional "right of the people to keep and bear arms shall not be infringed". There simply is no guilt there to be convicted of.

As a matter of justice, not law, anyone who votes to convict in such a situation ought to be permanently deported.

 
At 5:17 PM, May 01, 2008, Blogger Don said...

Right and wrong are not created by the legislature, but legal and illegal are created by the legislature. I would have no problem convicting someone for violating a law I disagree with. I accept and follow the laws not only to avoid prosecution but because I find that changing the laws is easier when you can get others to agree with you. If you accept the system as it is and work within it, you will more likely be able to move the system in the direction you want it to go. Political Theory is the view of the politics one wishes to have. Politics is the real world where actual decisions are made. Walking away from the jury is a good way to insure that your views will never gain acceptance. A jury is a good model of our society. If you're not willing to participate and listen to others, don't expect others to listen to you. If you're ever before a jury, I guess you better pray that they all agree with you whatever the law is.

 
At 9:53 PM, May 01, 2008, Anonymous js290 said...

I thought jury nullification referred to the jury judging not just the evidence of the case but whether the law should even exist. The jury not only says the defendant isn't guilty because they disagree with the law, but more importantly, the law should not exist at all. It's suppose to be the last form of checks and balances on the government.

If jury nullification was actually used, being on a jury may actually be half way interesting. But, even in states that have jury nullification, the practice of it seems to be highly discouraged.

 
At 7:41 AM, May 04, 2008, Blogger MensaRefugee said...

Why fret when so many laws were created by Judges disregarding the Constitution?

The part of the question should be: Were the laws against concealed carry created by a judge practicing "Judicial activism" (doing what he sees fit regardless of the law or people) or "Judicial Restraint" (Doing what he is authorized to do, by Congress and the people).

Of course this isnt a complete answer (after all the law could be made via Judicial Restraint, but you are still strongly against it)- but it reduces greatly the permutations of conflict. Especially in this day and age.

 
At 7:29 AM, May 05, 2008, Blogger mjh said...

I think Charles may be saying something similar to what I'm saying. Apologies if this is redundant.

But humility requires that I examine my sense of right and wrong. I used to believe that protectionism was right - in the sense that it was a more effective means to producing wealth. I now disagree with that. I think it's wrong. Without at least considering the possibility that I'm incorrect in my view, I would likely still believe something that was false.

The result of this is that if there's legislation that is currently in force, with which I disagree, I have to at least consider the possibility that I'm wrong in my disagreement.

My opinion on how to handle the situation is to do exactly what Prof F did: I would expose my disagreement and identify that I can't enforce a law that I believe to be wrong. And if I feel the need to change that law, I should make use of the legal mechanisms by which laws are changed. If I'm right, then I ought to be able to convince others that I'm right, and we ought to be able to change a wrong law.

Of course, given Caplan's myths I may still be right in my disagreement with a given law, but be unable to motivate the political will to change it.

 
At 3:47 AM, May 06, 2008, Anonymous MachineGhost said...

All, read the Juror's Guide at the Fully Informed Jury Association:

http://www.fija.org/

 
At 3:28 PM, May 11, 2008, Blogger John T. Kennedy said...

I don't see any "jury nullification problem". Is there a "hammer problem" due to the fact that while I may morally drive nails nails with a hammer, an evil person might hit innocent people in the head with one?

When you recognized the right of the defendant to carry a concealed weapon, why didn't you qualify that with a nod to the danger that he might walk into a day care center and start blowing children away?

The only danger in any of these cases is that individuals will make the wrong moral choices - and this isn't a "problem" anyone can solve for anyone else because it's simply the human condition.

 
At 3:55 PM, May 11, 2008, Blogger John T. Kennedy said...

David,

Do you thin we'd be better or worse off if *all* criminal convictions were nullified by juries?

I say we'd be better off.

 

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