In a recent post
, I discussed the issue of jury nullification, the question of whether a juror ought to vote for acquittal if he believes that the defendant is guilty, but of something that ought not to be a crime. I mentioned being dismissed from a jury some time back as a result of telling the judge that I might do so.
One commenter suggested that my mistake was not that I was willing to vote for acquittal in such a situation but that I told the judge that I was, that I ought to have said I would follow the judge's instructions and then voted for acquittal if the law that the defendant was accused of violating was one I disapproved of. His point was that if I could, at no great cost to myself, keep someone from being jailed for something he did not deserve jail for, I ought to do so.
Another commenter pointed out that, as a juror, I would be required to swear to follow the judge's instructions with regard to the law. Falsely swearing would be perjury, a criminal offense. Which raises two questions ...
The first is a moral question—ought I to be willing to perjure myself under such circumstances. I think the answer is that I should. I am generally unwilling to lie to people, but this is a special case, analogous to lying to a mugger about what money I have on me. I do not regard government as a source of moral authority, so a government trying to imprison someone for (say) smoking marijuana deserves to be treated like anyone else trying to violate rights. I would be uncomfortable lying to a judge under oath and might do it badly, but I do not think doing so would be wicked.
The second is a practical question—how likely is someone who swears to vote according to the judge's instructions on the law and then deliberately fails to do so to get into legal trouble as a result. My guess is that a juror who limits himself to telling the other jurors that he is not convinced of the defendant's guilt and so unwilling to vote for conviction would be pretty safe—unless he had previously put up a blog post defending jury nullification, or in some other way provided clear evidence of what he was doing. Perhaps even then.
But all one vote for acquittal can do is produce a hung jury; if the prosecution is determined to convict, it can always try the defendant again. A more ambitious project would be to try to persuade the other jurors to vote for acquittal on the grounds that what the defendant had done ought not to be illegal. Doing that would produce evidence that the juror had perjured himself in swearing to follow the judge's instructions on the law.
I'm curious as to whether, in practice, jurors who do that get prosecuted for it, and if so how often.
One further point occurs to me. In discussing the risks of jury nullification in my earlier post, I took it for granted that it would be used to prevent the conviction of someone guilty of something the juror thought ought not to be a crime. It could also be used to convict someone who was innocent of the crime he was accused of but belonged to a group that the juror disliked.
I think that is less of a problem, for two reasons.
To begin with, a single juror can't convict; the most he can do is produce a hung jury. So if only a few jurors share the dislike and the willingness to act on it, the result is not to convict the defendant but only to give the prosecution an opportunity to retry him. That might impose serious costs on the defendant, especially if he cannot offer bail, but less serious than conviction.
What about a situation where almost everyone dislikes the group the defendant is a member of and wants to use the legal system against them? In that case, jury nullification could convict the innocent defendant. But it probably isn't needed, since in that situation the government will almost certainly share the dislike and have other ways of acting on it.