Monday, December 03, 2012

True and Dangerous: Jury Nullification

"Some statements are both true and dangerous. This is one of them."

The quote above is my standard example. The fact that a true statement can be dangerous provides an argument for suppressing freedom of speech. Which is why that true statement is dangerous.

I am currently on call for jury duty, which reminds me of an example of the same principle which both I and my readers are considerably more likely to face as a real moral choice. We rarely have the opportunity to suppress speech or writing, whether or not we approve of such suppression. But I, like those of my readers who also live in countries under the Anglo-American jury system, may well have to decide whether or not someone accused of a crime will go to jail for it.

The last time I was here, a year or two back, I got as far as the point at which the judge questioned prospective jurors. She asked me whether, if I disagreed with the law the defendant was accused of violating, I would still be willing to vote for conviction if I thought he was guilty. I replied that I would not—and was dismissed from the jury. 

In that particular case, it was, for me, a real issue, since the defendant was accused of having carried a concealed handgun. The most visible supporter of laws permitting concealed carry has for many years been John Lott, a friend and ex-student of mine. And, well before he coauthored an empirical piece supporting the claim that concealed carry reduced confrontational crimes, I had sketched the theoretical argument in my Price Theory. If I had remained on the jury and concluded that the defendant was guilty, I would probably have voted for acquittal on the grounds that he did not deserve to be punished for breaking a law that ought not to have existed.

That is an example of jury nullification, the doctrine that jurors should nullify bad laws by voting to acquit those accused of violating them—even if they are guilty. 

It is also an example of the "true and dangerous" problem. I do not believe that right and wrong are made by act of Congress or majority vote. Hence I do not believe that it is just to imprison someone for doing something which he has a moral right to do, even if he does not have  a legal right to do it. I do not believe that it is morally legitimate for me to participate in violating someone's rights, save perhaps in extreme circumstances (for examples, see other things I have written, especially Chapter 41 of The Machinery of Freedom). It follows not only that I may acquit someone guilty of doing something that ought not to be illegal, I am in most circumstances morally required to.

But ...

Suppose everyone accepts the principle. Further suppose that some significant fraction of the population, say 20%, believe that certain people do not have rights, or at least do not have the right to live—gays, blacks, communists, illegal immigrants, whatever. One of them goes around murdering such people. When he is arrested, the odds are high—about .93—that at least one of his fellow believers is on the jury. If the doctrine of juror nullification is widely accepted, that is enough to keep him from being convicted.

Some statements are both true and dangerous. Including this one.


Anonymous said...

Of course, just one vote is not enough to acquit--there would be a hung jury. With those numbers, you would expect him to be convicted after about 14 retrials. The problem is not that he is wrongfully acquitted, but that the cost of convicting becomes prohibitive. He will thus be in a stronger position for plea bargaining, and so get a lighter sentence.

Anonymous said...

The number is probably less than 14 retrials, depending on how easy it is to determine if someone is a member of the 20% during jury selection.

jdgalt said...

I would have lied in order to stay on the jury and nullify. It's for the greater good.

As for your what-if at the end, yes, jury nullification can be and has been abused. But the mechanism is a good one, on the general principle that it's much less common for a large fraction of the population to be unreasonable on any particular issue than for one, or a few, or a hundred, government people to be unreasonable on that issue. The jury is thus a general "sanity check" on everything legislators, cops, and judges do.

Scott G said...

I was dismissed from a Santa Clara County court in a case in which a man was alleged to have possessed methamphetamine on a public street in San Jose. During jury selection, I answered that I did not believe it to be a crime to use or possess this drug, and therefore did not consider the man to be guilty of a crime worthy of prison time. I'm curious to know if you would have answered similarly?

Certainly I don't want people selling meth on the public sidewalk in front of my house, but putting someone in jail for doing so seems like a harsh punishment. It seems that fining him would be more appropriate. Do you agree?

Anonymous said...

John David Galt is right. Lying to prevent serious harm to a morally blameless person is not only permissible but (in low-cost situations like jury duty) obligatory.

Mark Bahner said...

"I would have lied in order to stay on the jury and nullify. It's for the greater good."

I've been on only one jury, and it was a civil case many years ago. But I think that before I answered questions from the lawyers and judge, I was sworn to tell the truth.

Charles Collom said...
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Charles Collom said...
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Charles Collom said...

The most intriguing thing about the hypothetical is that you wouldn't have to have a large group of people who were willing to kill, just a large enough group who held the belief that the victim deserved death.
But gays or blacks are perhaps less likely to end up creating this scenario than medical doctors who perform abortions. After all, a significant percentage of Americans believe every abortion is a first degree murder.
Moreover, gays (of which I am one) and blacks are much more likely to forms groups which will avenge the death of a group member if they couldn't rely on social order. What on earth would doctors do--buy insurance from an assassins guild? Presumably RICO is still enforced, and even though there are many nerds who would find an assassins guild "kick ass" there would be little compunction about putting them behind bars.
So the gays join the Pink Pistols (a thing) and the blacks join their clique of choice, but the doctors are hanging out there all pale and disheveled.

Note: My spelling and grammar are killing me. I'm not re-reading this post again.

jimbino said...

Yep, your life and freedom often depend on 12 people too dumb to get out of jury duty. Probably from the same pool as those who vote.

If I want out of jury duty, I just say there's no way I could support the state constitution. That's always true of those 5, like Texas's, that require you to acknowledge a supreme being.

Anyhow, I can't believe that a prospective juror is required to take an oath. Indeed, no person is required to take an oath, and in any case, the whole idea of the special validity of an oath is a throwback to the days when religion and superstition ruled.

MikeP said...

I am in Santa Clara County too. I was put in the jury box and was dismissed because I answered that I couldn't follow the judge's instructions if I disagreed with them or the law.

That was 16 years ago, and I haven't been asked back since. How did you avoid being blackballed?

Chris Hibbert said...

I'm with John David Galt. I'm disappointed that you didn't find a way to claim that you expected to follow the Judge's instructions. I could say "I would be willing to vote for conviction if I thought the defendant was guilty." It would be harder to say "I expect to follow the Judge's instructions", but for my fellow citizens safety, I'd try to say that straight, too.

The whole point of Jury Nullification is that the jurors are responsible for deciding questions of guilt and innocence by their own lights. If people who understand Jury Nullification allow Judges to define the terms and exclude people who might make up their own minds, then no one will be left to nullify.

MikeP said...

Chris Hibbert,

The perjury admonishment prior to jury selection in California is very harsh:

"Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court, and that failure to do so may subject you to criminal prosecution?"

And the question of whether you can judge solely the facts and not the law is very clear, as is the juror's oath:

"Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?"

It is unfortunate that California is not Oregon, Maryland, Georgia, or Indiana, where the power of a juror to judge the law is enshrined in the state constitution. But it's not, and you are seriously testing the judge and the system if you perjure yourself in the pursuit of nullification.

David Friedman said...


Yes. That's similar to the way in which I was dismissed from a Santa Clara jury, although in my case it was concealed carry.

I don't think the person you describe deserved a fine either.

sconzey said...

I think people should be allowed to acquire a permit to carry a concealed firearm. But I would also vote to convict someone guilty of breaking the law to carry a concealed firearm, for the same reason I would vote to convict someone guilty of carrying a concealed firearm without a CCW permit.

gooch said...


What part of the following do you not understand?
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

ALL laws that Infringe upon the individuals inherent unalienable right to self defense and the choice of tools to defend themselves is, was and always will be unconstitutional.
This goes all the way back to the so-called tax law of 1934.

Read the Constitution.

How are you going to explain to a victim of violence that they cannot respond with violence to being attacked?

CCW Permits are unconstitutional as well as unnecessary.
IF I want to carry a bazooka for my personal protection I have that RIGHT [Not Privilege] which was given to me when I was born by My Creator.

The Constitution does not Give me that Right it merely enumerates [lists] it among many others.

Read the Constitution.

Jury Trials are specifically mentioned in the Constitution for two reasons.
1- So a tyrannical government cannot abuse its populace without notice and ...
2- So that the populace can Nullify unjust laws proposed, voted on and instituted by unjust tyrants.

Read the Constitution.

Jehu said...

Part of the point of jury nullification is that you shouldn't be able to send people to jail based on a law that doesn't have serious supermajority support among the ordinary population. I personally advocate the use of jury nullification on a pretty wholesale basis. The method I suggest is simply demanding an impossible standard of evidence when you want to nullify. There's no need to tip your hat that you're going to use jury nullification.

Anonymous said...

sconzey your point is radically implausible. It implies that if the Nuremberg Laws were enshrined in our law you would uphold them as a member of a jury. But surely you shouldn't.

Scott G said...

"I don't think the person you describe deserved a fine either."

Okay, but what about the case of fining someone who is driving drunk on a public road or private road (which the driver doesn't own)? It seems that because of the higher likelihood of the drunk driver causing property damage to another, it would be a good idea to fine drunk drivers in order to reduce the likelihood of them causing damage.

Do you agree with the fine for drunk drivers in this case?

If so, then what about for someone selling meth on a public sidewalk then? It seems the dope dealer might be like a drunk driver in that he is increasing the likelihood of property damage being caused to others, with a big difference being that it is the drug user who buys the drugs from the dealer who has an increased chance of causing property damage.

Maybe you agree that a person walking around on meth should be fined for the same reason the drunk driver should be fined?

Anonymous said...

For those interested, Mike Huemer, a philosopher at the University of Colorado, gave an online talk about the ethics of jury nullification a few weeks back. A video is available here:

Anonymous said...

I would have been tempted to lie too.

But I gather that since David is a law professor who has written about, and will continue to write about the issue, publicly, it would be easier for the state to find evidence that he lied, hence not worth it.

Laird said...

The core of the problem is that judges (and/or prosecutors during voir dire) are even permitted to ask such an improper question. The power of jury nullification is an ancient principle of Anglo-Saxon law, reaching back to such famous trials as those of William Pitt in England and Peter Zenger in America (long before there was a United States). And I believe that that Supreme Court has affirmed it, although I don't have the cite (can anyone help there?). I can understand why judges and prosecutors hate it (it's a threat to their power), but I don't understand why we put up with that.

Where I live the federal jury questionnaire has several explicit questions directly related to jury nullification. I don't see how this is legal (although I also don't know how it could be challenged; who would be seen to have standing?), and I agree with several commenters above that there is a moral imperitave to lie on that form. (Perhaps that's the only way this could ever be challenged: by someone charged with perjury for lying on the federal jury form. But I doubt that such a case would ever get very far; the prosecutor would probably be terrified that the Supreme Court might actually get it right and affirm the power of nullification, so he would likely dismiss the case if the defendant showed signs of fighting for that right.)

This is an important issue which deserves wide dissemination. The Fully Informed Jury Association does great work in this regard and deserves support.

David Friedman said...

For anyone curious about how it turned out ...

I got to the point of being questioned as a possible alternate juror, by the found the two alternates they needed without getting to me

The judge turned out to be a graduate of the school I teach at. Her main concern, questioning me, was whether I would insist on ruling by my view of the law rather than by what she told us. My response was that there were some issues where I might well do so, but I didn't think the question would arise in the current case, which was one of assault.

She seemed to find that satisfactory, since she didn't dismiss me. They got two other alternates before the attorneys got to questioning me.

MikeP said...

In my case I was not asked whether I thought I would have had a problem with applying the law as the judge instructed. It was a case where a car salesman was apparently trying to get people buying cars to collude with him in keeping the sales tax. The judge kept calling the people buying the cars "victims" though it seemed to me that the state Board of Equalization was the victim. Maybe it was enough of a state crime that the judge was pre-sensitized to nullification.

Anyway, he did not prod me on why I wouldn't follow his instructions, only going so far as to ask "is it don't want to, or is it won't?" Then he called the lawyers to the far side of the bench for a quiet chat that I imagine went "If I push this prospect, we may spoil the whole pool." I was excused from the jury forthright.

Fun fact: The first peremptory challenge from the prosecutor was used to dismiss Marc Andreessen. And the judge didn't seem to know who he was even though he was on the cover of Time a few months prior.

VangelV said...

It is also an example of the "true and dangerous" problem. I do not believe that right and wrong are made by act of Congress or majority vote. Hence I do not believe that it is just to imprison someone for doing something which he has a moral right to do, even if he does not have a legal right to do it.

But you have argued elsewhere that morality is relative and usually take the utilitarian approach to issues. A utilitarian has no need to bring the issue of moral principles into a discussion because he does not believe in fixed moral principles to begin with.

Note that this issue is very clear and obvious to one who bases his positions on the principles of Natural Rights. If you start there and use your logic it is easy to see why a law that violates those rights should not be obeyed.

VangelV said...

Further suppose that some significant fraction of the population, say 20%, believe that certain people do not have rights, or at least do not have the right to live—gays, blacks, communists, illegal immigrants, whatever.

You have that now. The majority of voters thinks that 'rich' people do not have the right to keep the same portion of what they earn as the rest of the population. And they vote accordingly.

One of them goes around murdering such people. When he is arrested, the odds are high—about .93—that at least one of his fellow believers is on the jury. If the doctrine of juror nullification is widely accepted, that is enough to keep him from being convicted.

This would not be an issue if the state did not have a monopoly on law enforcement and the courts. Insurance companies that did not protect their customers by ensuring that the guilty were punished would lose business to those that would and justice would be done.

Chris Hibbert said...


I could calmly read the perjury admonishment you cite and still claim that I intended to render a verdict according to the evidence and the instructions of the court. It's possible that I'd be prosecuted if I made an impassioned plea to my fellow jurors, but I'd be willing to take that chance for the right case. I'd be surprised if the prosecutors didn't back down before me as others here have pointed out. They don't want to lose a precedent-setting case, and believe that the law would be on my side.

Joshua L. Lyle said...

Regarding your hypothetical, isn't there a necessary supposition about whether there is a contravening group within the society that would similarly nullify the prosecution of vigilantes that murder the murderers protected by jury nullification?

It seems much like the balance in weregild. A rich person might be able to afford to commit many murders, but each time they also grant someone the wealth to afford to murder them.

Milhouse said...

A recent example of the sort of bad nullification of which you warn, was the acquittal of Lemrick Nelson in the murder of Yankel Rosenbaum. His guilt was clear, but the jury was unwilling to convict him of murdering a Jew.

Also the acquittal of El-Sayid Nosair in the murder of Rabbi Meir Kahane; in that case it was blatant, since they convicted him of everything but the murder itself. What they were really saying was that he "needed killing".

Noobystok said...

So what did the founding fathers mean by well regulated militia? Because they weren't talking about a well regulated standing army when they wrote the second amendment. You need to not only read the constitution but also all of the applicable debates and correspondence of the framers of our constitution to understand their intent. When you repeat things like "read the constitution" in your posts it only exaggerates how blindly uninformed you are.

You're asking what he doesn't understand and it is, sadly, evident that aren't even in a position to be doing so.

Xerographica said...

FYI... I just posted a critique of your preferred system of justice. Of course any thoughts would be appreciated!