The one minute case for jury nullification

This is Swampyank's copy of "The Jury&quo...
Image via Wikipedia

The role of a jury is to apply the law to the facts

A trial ought to be, a fact-finding process, conducted in order to determine whether pre-existing legal principles are applicable to a specific case.  It should not be a religious, philosophical, or political discourse – that is, the rules by which guilt or responsibility is determined must be known beforehand.  It is not up to the judge or jury to determine what the law ought to be, only to apply it to the established facts.  If the law was determined rather than applied at trial, it would be impossible for anyone to obey it.  Furthermore, a just legal system should be uniform – people must have assurance that outcomes will not depend on the particular judge and juror they stand before.

We have a personal moral responsibility to treat other men with justice 

However, while it is not the job of the juror to determine whether the law is just, it is his moral responsibility to treat other men justly.  Someone who is hired to be a repo agent may not have a contractual obligation to determine whether the collateral he collects is for debts which are legitimately are in default, but he has a moral obligation to refuse his assignments if he suspects that he’s seizing legitimate property.  If he refuses assignments based on tenuous grounds, he may justly be fired, but if he has some certainty that he’s seizing legitimate property, he becomes as much a thief as his employer.  Likewise with the juror.

A law based on invalid principles is inherently unjust

One criticism of jury nullification is that a jury is not neither qualified to judge the law nor does it have any legitimacy in doing so.  And this is certainly true as a matter of law.  A juror who disagrees with the practical implementation of the moral principles behind a law ought to defer to the established process.  He can always exercise his disagreement and try to effect change in his role as a private citizen.

But, the situation is different when a juror disagrees with the moral principles behind a law.  A law based on incorrect moral principles is unjust regardless of the facts of the case.  The conviction of anyone based on such as law is necessarily an act of aggression.  Any participation in the process, even solely in the function of determining the facts, is an immoral act.  No judge can honestly ask a juror to breach his integrity, or blame him for refusing to do so.    Everyone, regardless of his role, has a personal moral obligation to treat others justly and refrain from willingly participating in injustice.

Jurors should refuse to enforce unjust laws

What should  a juror do if he objects to the morality of a law?  He should refuse to serve if he believes that the principles of a law are inherently unjust.  By doing so, he does not undermine the legal process, since another juror can be substituted, nor does he violate his own integrity.  A juror exceeds his role if he refuses to convict because he thinks that the punishment for an action is too harsh, but he acts properly if he refuses to serve because he does not believe the act being prosecuted to constitute an act of coercion at all.

If the court is unable to find enough jurors who accept the morality of the law, it has two choices:  either require the charges to be dropped, or offer the dissenting jurors to serve anyway.  If they do so, they cannot be blamed for acquitting the defendant based on their judgment of the law, in addition to their judgment of the facts. If laws are consistent with the basic moral principles of citizens, it should not be difficult to find sufficient jurors.

Further reading


Filed under Politics

2 Responses to The one minute case for jury nullification

  1. membwayne

    The logic of this argument is flawed. Say ninety percent of the population thinks a certain law is morally wrong. Because of random chance, the first twelve jurors selected all find the law to be wrong and refuse to serve. Of the next twelve two are found who “think”: “If it’s the law it must be good.” The other ten refuse to serve. Eventually, after an average of 120 potential jurrors, the jury is completed. But they are no longer a randomly selected jury of their peers, but one stacked in favor of the law. But the premise of the first paragraph was: “[P]eople must have assurance that outcomes will not depend on the particular judge and juror they stand before.”
    If you are unbiased in regards to the person on trial, the only thing you can morally do is to stay on the jury and vote your concience. The court has no right to preselect out those who would vote against a law. Otherwise, the jury becomes no more than a rubber stamp for whatever garbage is passed as “law”.

  2. paulg23

    “The role of the jury is to apply the law to the facts.” That’s a naive restatement of what judges typically say when lying to juries, and it ignores the history of the Anglo-American jury.
    The role of the jury (in a criminal trial) is not to determine the facts, but to determine (render a verdict) whether the defendant is guilty of the crime charged. If the offense charged is not a “crime” (say: smoking week, injecting heroin, selling alcohol on Sunday, criticizing the king), and a jury finds the defendant did commit the offense, then the jury becomes responsible for the conviction and ensuing punishment of an innocent person.
    Intelligent and moral jurors understood that there are moral consequences of their actions as jurors, and refuse to convict where conviction would be immoral. That understanding is embedded in the history [and the meaning] of trial by jury, and it was undoubtedly on the minds of the framers of the constitutional guarantee to the right to trial by jury, and that has been recognized by the U.S. Supreme Court, no friend to jury rights. Similar, America’s founders understood that laws which violate natural rights are immoral, and should not be enforced or followed. Getting yourself disqualified from jury service to avoid the responsibility of a juror often aids and abets the state’s violation of the individual rights of the defendant.
    Judges lie when they tell jurors their job is to determine the facts. Jurors are asked to determine whether the prosecutor has proven beyond a reasonable doubt, each and every element of the offense charged against the defendant, and to convict, if and only if they unanimously agree that has been done. Jurors don’t determine “what happened.” They aren’t writing a report.
    It us up to the prosecutor to attempt to prove what is charged. The jurors’ job is to determine whether they have – i.e., to render a verdict, which is a “mixed question of law and fact.” If the jurors’ job was to determine the facts, they would have to investigate the crime, interview witnesses, conduct research, all of which are expressly forbidden. What they are allowed to see and hear is carefully controlled and limited by the judge, often to the detriment of a true determination of justice.
    Jurors [under compulsion] are manipulated by prosecutors and judges, told to ignore the moral consequences of their actions, told not to investigate or research the case, told how and when to think – not to discuss the case with anyone, including other jurors, until they are deliberating – and used to further the agenda of the government which is prosecuting the case. Jury service is required by law, refusal can be punished as contempt of court. Disobedience such as researching the case, when you think a witness misrepresented or misunderstood something you could check out, is punishable as a crime. An honest juror cannot willingly follow the commands of the court, as to how to think and judge the defendant.
    “Jury nullification” is a term coined by enemies of jury rights to smear the concept of jury independence. The right to trial by jury means the right to trial by an independent jury.

Leave a Reply

Your email address will not be published. Required fields are marked *