Friday, December 10, 2010

Jury Nullification: True and Dangerous

I was recently involved in an exchange with a prominent jurist on the issue of jury nullification—the doctrine that jurors are entitled to nullify bad laws by refusing to convict a defendant who did something that is illegal but, in their view, should not be. He pointed out, correctly, that it is a very dangerous doctrine. If everyone believes in jury nullification and one person in five believes that it is all right to murder abortionists, someone who murders an abortionist is unlikely to be convicted. Similarly for any other target group that a significant minority believes deserves death.

He is correct that it is a dangerous doctrine. He may well be correct that we would be worse off if more people believed in it. But that does not tell us whether or note the doctrine is true. It is possible, after all, for something to be both true and dangerous. To take one obvious example, it is true that if you put together a certain mass of U235 in a certain way the result will be a very large explosion—but we might all be better off if nobody knew that it was true.

My rebuttal to his argument—which, as it happened, I did not have a chance to offer—is quite simple. Sodomy was a capital offense in England and parts of the U.S. into the second half of the 19th century. Suppose someone has been caught in the act and charged and you are offered a place on the jury. You believe that the other jurors will vote for conviction and that the defendant, if convicted, will be executed. You have three options:

1. Tell the judge that you are unwilling to decide the case according to the law, since you think the law unjust. You will be dismissed from the jury and replaced by another juror who will probably vote for conviction.

2. Agree to decide the case according to the law. Since the man is guilty, you vote for conviction and he is hanged.

3. Tell the judge (falsely) that you are willing to decide according to the law, remain on the jury, and vote for acquittal.

The first two alternatives result in the hanging of a man who has, in your view, done nothing wrong. The third is jury nullification. Which choice is morally correct?


Jeff said...

Choice 3 is morally correct, but if the law permits jury nullification then perhaps your statement to the judge is not false after all. Alternatively, since judges have never been willing to define "reasonable doubt," perhaps one could have a variable standard for reasonable doubt which takes into account the fairness of the law in question. Not to mention the harshness of the potential punishment.

In any event, if it is necessary to lie under those circumstances, I think you should.

ErolB1 said...

I don't think it's Jury Nullification that's dangerous, but rather a belief by a large minority of the population that certain violent acts are not crimes. If one person in five believes that killing abortionists is justifiable homicide then you'll have serious problems with social unrest and violence whether or not you try to suppress jury nullification from being applied in favor of the abortionist-killers. In fact, I'd worry about the problems being worse if jury nullification is suppressed.

Also, suppressing jury nullification is itself dangerous because doing so blocks the good that it produces. If people believe that the bad results from jury nullification outweigh the good ones, they should (at least) seriously reconsider their support for trial-by-jury in the first place.

Anonymous said...

There was a time that for a prosecutor to get a convection, he had to be able to demonstrate that the law would be known to rational people as common knowledge and that the person who committed the crime had to demonstrate a guilty mind.

For example:
If a person were to enter another's home and take their property, they would be guilty of theft.
But if a person were to enter another's home to retrieve their own personal property, they wouldn't be guilty of theft.

Today, we have laws where an American citizen, residing in America, can be tried in an American court and put in an American jail for breaking the law of another country.

Today, we also have police that watch casinos looking for winners so they can pull them other and take the winnings under the pretext that the money could be used at some point in the future to buy drugs. Due process never occurs.

Jury nullification is the only resource the American people have to try and take back control of our laws. Unfortunately, you'll never get on a jury if you declare your right to nullification.

Tim Worstall said...

Two trivia points.

On jury nullification the most obvious and glaring case is, in the UK at least, that of a civil servant charged with breaching the Officil Secrets Act. It was glaringly obvious that he had breached it and that under the Act he should be going away for a long time. The jury said "not guilty" and the assumption has since been (we don't in fact know because to interview people about what happened in the jury room is itself an offence) that they simply didn't think that what he did should be a crime.

I've not named the case as my stating that he was obviously guilty is a libel, given that he was found not guilty.

On a larger scale there is the issue of rape. It's strongly suggested that a number of not guilty verdicts are brought in in rape cases because there's a difference between what the law says rape is and what the average jury thinks rape is. The latter tending more towards Whoopi Goldberg's "rape rape" than the law itself does.

Finally, on sodomy being a capital offence. There was one year (I've never checked this but am told that it is true) in the 1800-1820 time span when more people were hung in the UK for sodomy than for murder.

EH said...

About as dangerous and just as democracy, id say.

Actually, there are two significat differences I can think of. The first is higher variance in a smaller group, which is bad.

On the flipside; this smaller group is also judging a single case, rather than nationwide policy including their own benefits, so there isnt much incentive for bias.

Personally, im more worried about democracy.

Anonymous said...

If 20% of the population believes that something should not be a crime, then perhaps people shouldn't be killed or sent to prison for it.

From that starting point, you can of course steer the discussion into any direction you want, by choosing one example over another. Murdering abortion doctors, racial violence? Or sodomy, possession of marijuana for personal medical use?

Either way, I'd say that if you have a system which uses randomly-selected laypeople to decide criminal cases, then nullification of laws they don't agree with is an inevitable consequence which you accepted when you chose that system. (Wasn't that the whole point of the "jury of one's peers" idea?) Same for jurors being overly influenced by their personal biases about the suspect's race and other irrelevant factors.

I'm not saying that professional judges would be above such influences; they're still human after all. But at least they are hopefully given *some* training on how to recognise and suppress their own biases and fallacies.

I live in a country without a lay jury system, and I don't have the impression that our system is less fair than that in the US or the UK, but admittedly that may be because my information about foreign systems is based on news stories about nonrepresentative cases.

Anonymous said...

A common scenario is the jury "nullifies" a serious charge but convicts on a minor related charge. What happens next is the judge may use his discretion to impose an unusually harsh sentence for the minor charge, effectively undoing the jury's verdict.

SheetWise said...

I remember a case about thirty years ago down south -- it was a child abduction, rape, and murder. When the perpetrator was found, it was front page news. He was extradited to the victims hometown, and there were crowds as the authorities brought him through the airport to stand trial. The victims father was in the crowd, and when he had the opportunity he shot and killed the perpetrator. What I remember most clearly was that the prosecutor never brought charges against the father -- he said it was a waste of time, since he could never get a jury to convict. That's an extreme case, but prosecutors make decisions every day about which cases they will pursue, and which ones they won't. Isn't that nullification of the law? The same decisions are made by officers who can and do selectively enforce laws.

I'd like to direct your attention to the work done by the Fully Informed Jury Association (

Unknown said...

The third option is obviously correct. In the world of morals, you get to do the thing that you can live with. If an option with a certain degree of certainty results in the death of another human being who has committed an offense that doesn't warrant the punishment, you are not passing judgement on the act of the offender but on the righteousness of the system by finding him non guilty.

Anonymous said...

Date rape is a tough call for a jury. Julian Assange is a perfect case. UK Mail Story.

Basically, he had sex with two women a few days apart and remained socially active with both women until they talked to each other and then cried rape.

GregS said...

Choice 3 is unequivocally the correct one.

The fear that people will nullify laws against REAL crimes like murder, theft, and rape is silly. It might happen rarely, but I think it's far more likely that laws against "crimes" that aren't really crimes will be nullified (like drug laws, prostitution laws, and other vice laws, along with laws that demand excessive punishment for minor crimes).

Read "Jury Nullification" by Clay Conrad. It's a really great source on this topic. He dispels the narrative that "all-white juries" routinely exonerated white killers of black men. The reality is that a racist local police force and judiciary often made no effort to see that justice was done. These exonerations were NOT spontaneous examples of "street justice" by groups of racist white men.

Historically, jury nullification was used in America to nullify fugitive slave acts and alcohol prohibition. This supports the thesis that only BAD laws will be nullified routinely. The right of a jury to deliver any verdict regardless of the law comes from the trial or William Penn, eventual founder of Pennsylvania, who faced a capital trial for preaching his religion. His jury was initially punished by the king for giving the "wrong" verdict, but a higher court repudiated the king and established the legal principle of jury independence. I always thought it was inspiring that a group of jurists stood up to the punishment of the king, while today even Americans are just cravenly deferential to the state or "the law."

Anonymous said...

Cars are dangerous. So are airplanes, natural gas, kitchen knives, guns (of course), the poisons under the kitchen sink, fertilizer, swimming pools, things made of glass, baseball bats, hammers, staplers, sewing needles, the stuff in your medicine cabinet, screwdrivers, tire irons, and electricity.

The question is: how likely are any of those things to be misused?

I'd argue the official actors in the system (judges, cops, prosecutors, defense lawyers, probation/parole officers, prison guards, legislators, governors, etc.) are far more likely to abuse their dangerous authority than a jury of 12, chosen fairly from the community, and making a decision through group deliberation.

The judge doesn't trust anyone who isn't part of the club. I'm a lawyer, and I've seen the members of the club up close, and they scare the bejesus out of me.

Anonymous said...

I'd have to agree. Our legal system is the largest criminal organization in America.

jdgalt said...

When most people don't consider an act (or omission) to be wrong, that doesn't prove it isn't wrong, but that is the way to bet. Unreasonable behaviors don't tend to be acceptable to large numbers of people. Thus, lawmakers' power to arbitrarily declare behavior wrong is much more to be feared than juries' power to tolerate that behavior.

Furthermore, a good case can be made that juries' right to nullify was the main or only reason the Founders bothered to give us the right to trial by jury. There were certainly plenty of cases of it before and during their time; William Penn's obscenity trial is probably the best known today.

Anonymous said...

Which is why the jury should not ever be asked if someone is guilty. Guilt is a matter of law and if are asking laypeople to interpret the law dont be surprised when they will. First prosecution and defense must plan with the judge what acts committed by the defendant will irrefutably prove that there was a crime. Than ask the jury members if they believe those acts were committed or not.

Mike Huben said...

"When you are young in this world, you believe that the class of deductive truths about social matters is larger than it turns out to be. The great attraction of libertarian thought lay in its deductive power. The hope was that you could axiomatize the system and sort of render social problems amenable to a set of principles that yielded necessary or deductive truths. That vision certainly fired my early academic life... Essentially, as I have gotten older and maybe a little bit wiser -- which why that 30 years really start to matter -- I have discovered, to my infinite regret, that most of the serious debates over the basic principles of any political order have an irreducible empirical content."
Richard A. Epstein, "Skepticism and Freedom"

Every institution, including juries, is susceptible of being undermined by corruption of its assumptions. Assumptions such as disinterest in the particular case, and such as willingness to judge according to the law. Jury nullification is dangerous the same way bribing jurors is dangerous.

Whether jury nullification would be better or worse than not having it is an empirical question: while Friedman can find an example where nullification would seem better to the subjective preferences of non-bigots, cases such as Emmett Till provide counter-examples that seem worse to non-bigots. Which would happen more frequently? Which is more utilitarian?

Nullification is not true in many ways, but there are a few that stand out. First, laws are not nullified: specific prosecutions are. It's not like a finding of unconstitutionality of a law: the law is not overturned. Second, while it seems jurors are granted Hohfeldian liberty to vote their conscience, they are charged with Hohfeldian duties as a precondition of getting on the jury. Those duties are based on the assumptions mentioned above. If those duties are violated, jurors are susceptible to punishment. In that sense, nullification is just another form of corruption. Nullification is no more "true" than bribery. Third, nullification doctrines promise better social results if government policy can be vetoed by minority sentiments. That's a basic contradiction of the liberal principle of democratic decision making by majorities, and causes all sorts of holdout problems.

Henry said...

I would much prefer to live in a society where laws are determined by the median voter rather than random voters. Yes, the median voter can have beliefs I dislike, but I'd rather not take a chance of psychopaths being the decision-makers.

That said, I pick option 3. I don't believe this is inconsistent since both prohibiting jury nullification and nonetheless practicing it myself advance my moral objectives.

js290 said...

In an immoral system of government, any opportunity to exercise jury nullification is probably the better choice.

But, perhaps the question that's actually being posed by this blog post is whether a jury system is indeed the best way to hand out justice.

For those interested, take a look at Arbitration of Disputes and Rectification of Injustice chapters of The Market for Liberty.

Ilíon said...

Option one is most moral. Option two *may* be moral, or may be immoral. Option three is probably always, or at least generally, immoral.

Also, option three is what (generally "liberal") nominees to federal court judgeships routinely do.

Yes, the idea of jury nullification is a dangerous idea, especially in a society, such as ours, in which the social consensus has been under sustained assault for a number of generations and is pretty much busted -- yet, something very like it is also how some of our common law liberties were initially secured.

NEVERTHELESS, I think that the reason the lawyer guilds don't like the idea has nothing to do with its danger to society and the just application of the law, but rather they object to the danger it poses to their control over the law.

Ilíon said...

Anonymous [concerning the benefits of professional magistrates, rather than lay juries, trying cases],

One of my sisters was prosecuted for “child endangerment” or some such bullshit. There were two roots to her prosecution:
1) her witch of a 12-year-old daughter was mad at her because she had rules;
2) she refused to plead guilty to the charges, forcing the prosecutor to bring the case to court.

Now, the police and/or the prosecution *knew* they didn’t have a case -- for, from some of the photo evidence (which the police threw in my sister’s when they arrested her, but which was not submitted as evidence in court) showed that the bruises on my niece’s face were made by the little brat herself and could not have been caused by a second person, unless that person were standing behind her.

However, since my sister refused to play their game -- most women (and likely most men) would have falsely confessed -- and forced then to try to prove their accusation to a jury, she is not a felon. The jury essentially laughed at the prosecution.

Now, all those people involved, except the jury, were “professionals” -- and they didn’t give a damn about justice. My sister was just one more body to use as a stepping-stone for career advancement.

And, incidentally, that niece later tried to get similar shit started against me.

ErolB1 said...

"Jury nullification is dangerous the same way bribing jurors is dangerous."

Nonsense. Juries not only have a duty to determine if the defendant's acts violated the law, but also to determine if that violation of the law was a crime. They have not only the power but also the duty to find the defendant not guilty - to engage in jury nullification - if they find that the defendant violated the law but did not commit a crime in so doing.

It is the attempt to prevent jury nullification that is as dangerous as bribing the jury. And it is the legal positivist view that all violations of the law are crimes that attempts to solve social problems according to simple axioms.

Roger said...

I don't think your example is that dangerous in the long run. The person who kills the abortionist killer in retaliation will also likely not be convicted so hopefully that likely retaliation would be a deterrent as great as risk of a conviction?

Anonymous said...

I'm usually a proponent of jury nullification, if properly used. However, there is a problem because too many jurors, consciously or subconsciously, use jury nullification to protect the police or prison officials from being held accountable for their crimes. said...

Thank you all for your excellent comments, and thank you, David for your excellent analogy. We find that most jurors who nullify do so in cases when there is no actual victim—when no other actual person has been injured.

Some nullifications we hear about these days are made against venal laws of recent parentage, designed to further obstruct individual rights while also filling the empty coffers of the tax collectors.

Laci The Dog said...

OK< here is a case for you to decie whether you actually believe in Jury nullification:

People of the State of California v. Orenthal James Simpson.

If you think that jury nullification is OK, then you should have no problem with what happened in that trial.

If you can't honestly follow the law, then you should ask to be excused from being a juror.