Wednesday, December 05, 2012

Jury Nullification and the Enforcement of the Juror's Oath

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.


Anonymous said...

"Doing that would produce evidence that the juror had perjured himself in swearing to follow the judge's instructions on the law."

Assuming that advocating nullification during deliberation could be construed as perjuring oneself (i'm not sure this has, or could ever happen), I think there are still a couple options:

1) Would it be possible to insist that, although at the time of swearing the oath you were willing to convict on the basis of the law, you subsequently reconsidered the morality of the law itself? I.e., that you weren't lying, but changed your mind?

2) Even if 1 couldn't get you off the hook for perjury, you could always just insist that your decision to not convict is based entirely on the factual evidence, and try to convince others on those grounds.

Jehu said...

All you need to do is demand an impossible standard of evidence. Demanding a probability of one in a billion or less to convict an innocent person (of THAT particular crime) will get you there. Just make that probability of a bogus conviction reasonable when dealing with reasonable laws, and 'unreasonable' otherwise. You may be able to communicate this with wink,wink,nudge, nudge to the other jurors and you can do the motivated skeptic thing on all the prosecutor's case.

David Yosifon said...

I was recently called for jury duty as well (never was called into the box for questioning). I was surprised by how insistent the judge was on whether the potential jurist was willing to convict even if they disagreed with the law. I had thought that nullification was a right of the juror to be exercised with discretion, and not necessarily a wrongful act by a juror. Anyway, we might distinguish between jury nullification used to free someone who is technically guilty, and jury nullification that is used to convict someone who is technically not guilty. We might respect or allow the former while forbidding the latter.

Anonymous said...

If you want to argue based on the unjustness of the law, you could argue to the jury that we must be very skeptical of the evidence when prosecuting an unjust law. After all, surely there are some crimes where we must be more cautious in conviction than others. A reasonable general rule is that we must be more cautious in passing judgement when the risk of harm is greater. And since unjust laws tend to do more harm than good, we must be extremely cautious.

For example, you may assume one or more of the witnesses for the prosecution may be lying and/or colluding. This source of doubt becomes more reasonable when they are trying to perpetrate an injustice. By arguing in this manner, you can present your arguments about how unjust the law is, rather than just obstinately disagreeing and waiting for a hung jury.

David Yosifon said...

Just spoke with Jerry Uelmen and he confirms that nullification is considered a wrongful act by a jury, that lawyers may not argue for it, but that jurors who did it many not be punished for it. An interesting kind of act, at the very furthest periphery of the rule of law.

Daublin said...

"At the very furthest periphery of the rule of law" is an apt description.

David, don't you think the standard for nullification should be higher than "ought not to be a crime"? Otherwise, what is the point of having law?

David Yosifon said...

well put question, Daublin.

Jehu said...

I find the whole 'rule of law' nonsense being pushed by judges and prosecutors around jury nullification laughable. Discretion intervenes at EVERY level of the policing process. Police departments do not seek to enforce every law, policemen do not seek after every criminal, prosecutors don't even bother to prosecute every offense. All this holier than thou nonsense is ridiculous---we can be as arbitrary as we damned well want to but you, the juror, must follow our instructions in good faith. Even issuing anti-nullification instructions is, in my view, serious bad faith on the part of the whole legal system.

MikeP said...

I'm curious as to whether, in practice, jurors who do that get prosecuted for it, and if so how often.

I am aware of only one case in recent times: Laura Kriho in Colorado. From Wikipedia...

Circa 1996, Laura Kriho was the sole juror holdout in a drug possession trial, one eventually declared a mistrial. Kriho was found in contempt of court and charged with perjury and obstruction of justice for learning from the Internet that the defendant could face a four- to twelve-year prison term if convicted, a fact that had not been disclosed to the jury by the court. Additionally, while not asked about her opinions about the fairness of the drug laws or her own prior legal history, she was prosecuted for obstruction of justice for failing to volunteer this information on her own. The trial court found "that Kriho had intended to obstruct the judicial process and that her actions had prevented the seating of a fair and impartial jury", but after four years of legal battles the charges were eventually dropped after a district court ruled that her statements during secret jury deliberations could not be used against her. It has been argued that improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to a fair trial.

Laird said...

"Anyway, we might distinguish between jury nullification used to free someone who is technically guilty, and jury nullification that is used to convict someone who is technically not guilty. We might respect or allow the former while forbidding the latter."

Sorry, but the latter is not "nullification". Jury nullification is a negative power only, not a positive one. It can only be used to prevent a wrong, not to commit one. A jury can only convict someone of the crime with which he is charged, not sua sponte come up with some new one which it fancies better. The worst that can happen is that a juror who harbors an unreasonable prejudice against some person or group could vote to convict on the basis of evidence which the rest of us would consider insufficient. Which, at bottom, is merely agreeing with the prosecution.

As to the idea of some "standard" for jury nullification, that is wholly unnecessary and probably impossible. The standard is every individual's personal moral conviction that some specific action should not be deemed criminal, either at all or in that particular circumstance. Jury nullification is one more check (the final one) on the excesses of the government. It can, and should, be used when the government attempts to criminalize actions which are blameless, or when a prosecution is politically motivated, or where there is an obvious miscarriage of justice. It one more element in our system of checks and balances, and its degegration by judges and prosecutors should itself be criminal.

MikeP said...

David, don't you think the standard for nullification should be higher than "ought not to be a crime"? Otherwise, what is the point of having law?

The three main points I can think of:

1. So police, prosecutors, and judges police, prosecute, and judge something limited and enumerated instead of whatever they want.

2. To give some direction to the population on how to behave at the boundaries of moral discretion.

3. To allow legislators to demagogue.

Jury nullification is a check on (1), provides more moral guidance to (2), and is really only a problem for (3).

jdgalt said...

The Laura Kriho case isn't the one I'd seen before, but there is precedent saying you can't be punished for the way you vote (though research such as hers is a different matter, and calls for better computer security than she appears to have had).

Still, I would be circumspect about using nullification arguments, because the most likely result is that you get thrown off the case. There is no right to be a juror, and many courts routinely put 24 or even 36 people in the jury box just so they'll have the ability to throw people off for dissent without causing a mistrial.

Chris Hibbert said...

David: says that jurors can't be punished for their verdict. (Kriho wasn't prosecuted on the basis of the verdict, but because of other activities forbidden to jurors.)

The Laura Kriho case is distinct from jury nullification. There are separate laws that prohibit jurors from researching the facts of the case and of the law after they have been empaneled. Those laws have been upheld consistently, and jurors occasionally punished. Jury nullification is more specific, and says that jurors can rule that the law doesn't apply, but this doesn't give them authority to do their own research once on the jury.

Laird is correct that Jury Nullification doesn't allow juries to convict counter to the judge's rulings as to what the law says. If they do, the Judge has the power to overrule the conviction. The reason Judges hate Nullification so much is that they don't have the authority to throw out an acquittal in the same way.

MikeP said...

One paragraph from Wikipedia must have given the wrong impression. I followed this in real time when it happened. Kriho was prosecuted and convicted based on her intention during jury selection to ignore the judge's instructions -- i.e., to exercise jury nullification -- not because of what she researched during deliberations.

From the ruling:

Ms. Kriho, through her counsel, has mischaracterized the issues in this case. This case is not now and has never been about how Ms. Kriho voted during jury deliberations. This case is about whether Ms. Kriho misled the trial court and the trial attorneys about important matters during the jury selection process with the intent to remain on the jury and obstruct the legal process. The Court admitted evidence of Ms. Kriho's conduct during deliberations only as it was relevant to the issue of Ms. Kriho's conduct during the jury selection process. This mischaracterization of the case has made it more difficult to focus upon the real issue: Ms. Kriho's conduct during jury _selection_, not jury _deliberation_.
THEREFORE IT IS ORDERED that, based upon this Court's finding that Ms. Kriho deliberately and willfully withheld and concealed information which was relevant and important to selecting a fair and impartial jury, and that Ms. Kriho did so with the intent of serving on the jury for the purpose of obstructing justice, the Court finds Ms. Kriho in Contempt of

Her conviction was overturned on appeal because the evidence used against her came from jury deliberations. But it was her behavior during jury selection that she was prosecuted for.

chriscal12 said...

Clay S. Conrad's book Jury Nullification: The Evolution of a Doctrine suggests that prosecuting jurors for delivering independent verdicts is extremely rare, and that proving a juror is acting independently is nearly impossible, given the secrecy of jury deliberations.

Mark Bahner said...

"Kriho was found in contempt of court and charged with perjury and obstruction of justice for learning from the Internet that the defendant could face a four- to twelve-year prison term if convicted,..."

That raises a interesting (if slightly off-topic) issue. I'd ask judge Friedman for a little latitude to explore this. ;-)

The trial on which I was a juror was a civil trial, on an issue of potential medical malpractice during a surgery and afterwards.

I, along with the rest of the jury, had no medical knowledge related to the case. We were forbidden to discuss the case, and I as I recall, to gather information potentially related to the case outside the courtroom.

It seemed to me that it might be a lot better to let the jurors ask questions of both sides, like a Supreme Court case.

Luckily, it seemed pretty clear to me (and the rest of the jurors) that there was no medical malpractice, although I thought there was clearly harm that resulted somehow from the surgery. The whole system just seemed terrrible. If the money spent on the trial had simply been given to the plaintiff it seems to me that just about everyone would have been better off (except the plaintiff's lawyer, for whom I have little sympathy).

Sorry, your honor. It won't happen again. (Soon, anyway. ;-))

John T. Kennedy said...


This year New Hampshire passed a law which allows defense lawyers to argue for nullification before a jury, so it seems unlikely that that any juror could get in trouble for nullifying there. It seems to me this is a very simple change in law that could have profound libertarian results if applied across the country. What do you think?

Murna Gilbert said...

If judges could reach different conclusions on the same facts, surely the law must excuse you for opposing what you think to be a bad law. Jurors, in my opinion, are merely asked to give their opinions on the facts, with the jury instruction serving as guidance. Most jurors vote in accordance with their conscience, regardless the instruction they are given, they just don't say it out loud. Should the law castigate you for voicing your convictions? I think not. Let's not forget, the law gets its legitimacy from morality...

Milhouse said...
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Milhouse said...
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djb said...

Is there anything in the writings of Thurgood Marshall or similar persons where they discuss the issue of swearing to uphold a collection of laws some of which they believe to be immoral? I imagine Marshall might have taken some oath like that when joining a Bar association (in MD ?)

Anonymous said...

Isn't taking an oath to follow instructions of which you know not the details analogous to signing a blank check or contract? Imprudent at best, I think.

Anonymous said...

As to charges of perjury after the fact (in case of nullification, jury proceedings are considered secret. While another juror complaining to the judge might get you tossed of the jury, they have no way of pressing charges and having it stick. There are precedents.