> the question of jury nullification could be taken up by the Supreme Court
The “question” of jury nullification is a fundamental flaw of the jury system. Legalising it invites mob rule. Directly challenging it undermines the prerogative of a jury. So...we just don’t talk about it. If it were to be solved, it would involve the abolition of the jury system. Which nobody wants.
Judges talk about it all the time, usually in less direct language, when they give the jury their instructions. The solution is: judges talk about it, but can't really stop a jury from doing it.
I don't think it is accurate to define it as 'mob rule.' Generally, in mob rule, the mob decides who is guilty and punishes them arbitrarily. In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc..)
I won't lie to a judge or to anyone in court. But I won't ever convict someone if the death penalty is on the line. I expect to be excused, but if not... That isn't 'mob rule.' That's a power granted to me as a juror by the system. Presidents and Congress have grasped far more power than that without explicitly (and sometimes without even implicitly) being granted that power.
> In jury nullification, the mob decides who is technically guilty but unjustly punished (because the law is bad, because the punishment is too severed, etc..
Jury nullification is a jury acting on its own accord, without respect to the law.
Overruling unjust punishment is the archetype. The Northern jury nullifying Fugitive Slave Act convictions, for instance. The flip side of that coin is Southern juries nullifying lynching convictions. One can make a value judgement on that not being jury nullification, but it's the same mechanism.
I remain unconvinced. It is the law that gives juries this power. Can it be used for what you or I consider bad purposes? Sure. But so can any other power granted by the law. It is generally accepted that powers, both explicit and implicit can be used by the government. This includes elected officials and unelected bureaucrats. I see no reason not to extend the same to jurors.
> It is the law that gives juries this power. Can it be used for what you or I consider bad purposes?
The law grants this power to juries under the premise that they behave objectively. If jury nullification became commonplace, I would expect we'd see calls to join the rest of the world in abolishing popular juries. I think that would be a net loss.
If I believe that the law as applied to particular case is unjust I would nullify without second thought. Fuck the law if it goes against basic human values. And I am glad that as fucked as US justice system is it still allows for such outcome. At least in theory.
It's funny that so much energy is expended talking about how Jury Nullification is a flaw in the system when the courts themselves can simply overrule congress by agreeing with each other due to Marbury vs Madison (which was essentially judicial nullification).
While nullification has mostly been used for ill in the past, at least it's a grassroots democratic process. Why should someone be punished if their peers don't think it should be a crime? That's pretty small d democratic, much more so than elections where your vote barely counts.
> Marbury vs Madison (which was essentially judicial nullification)
Last I checked, juries aren't co-equal with Congress.
> Why should someone be punished if their peers don't think it should be a crime?
If cases become a matter of selecting your sampling bias, the legal system becomes unpredictable. That, in turn, subverts the rule of law--you no longer know if what you're doing is legal based on the law per se.
If jury nullification becomes commonplace, the jury system would need to be revised or thrown out. If you have trouble imagining this, imagine a group you are highly unsympathetic to, now put them in a zip code, now put them on a jury, now write the headlines they rulings would produce.
I'd point out that until Marbury v Madison the supreme court was not a co-equal branch. It was simply an interpreter of what congress passed with no ability to declare things unconstitutional. It was a power grab by the courts.
You can claim declaring laws unconstitutional is kind of an implied power, but it is certainly no where in the text.
Other thinkers have said that legalism is fake and there is really only contests between political factions with a legal gloss to pretend things are fair and objective. If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority.
> If you take that critique seriously, then the courts shouldn't have that power and congress should decide what is constitutional as they are actually elected and represent legitimate authority
Philosophically, I like this argument. Practically, dear god.
The U.S. system was supposed to balance the stability of monarchy (executive) and aristocracy (judiciary) against the justness of democracy (legislative). Our executive is, by design and decidedly, not monarchic. That removes a "slow thinking" system, leaving the "fast thinking" executive and legislature. We see the results in our political volatility.
Given the last two hundred years, Marbury was right. We needed a dampener, so to speak. People not incentivized by poll numbers.
P.S. Thank you. This has been a fun discussion and distraction.
You are right, but I can also imagine the inverse where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency. The unevenness at the local level is problematic, but so is evenness of really bad laws.
For example, a jury should feel free to simply dismiss charges brought under the espionage act.
I should also point out that nullification was unfortunately mostly used to acquit lynchers. I'm not sure why precisely that only that particular heinous act inspired enough solidarity to nullify the law as opposed to anything good, so historically nullification has been mostly a bad thing.
> where authoritarian laws cause activists or whistleblowers to be in jeopardy in contravention of all decency
The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged.
The moment you let juries start deciding whether the law is just, versus deciding if a law was broken, you remove the veneer of objectivity that has kept our courts somewhat sacred. It also becomes problematic for lawyers to remove jurists for ridiculous political views, as it becomes a First Amendment issue. Currently, that isn't a problem--your political views don't matter. Only your objectivity does.
> The short answer is jury nullification is an unavoidable thing. If matters get bad enough, it will kick in. (Though if things get that bad, they'll be eliminated.) That doesn't mean it should be encouraged.
I think the fundamental flaw is failing to recognize that the jury system is intended to be a form of mob rule, and that "jury nullification" should be considered a feature, not a bug.
I haven’t read the Federalist Papers, but I would assume that they touched on the reasons why the right to a jury trial was included in the Constitution.
For your interest, jury nullification has been addressed directly by the Supreme Court in Canada. They reasoned that a judge does indeed has a duty to stop jury nullification with proper jury instruction, and by preventing council from raising the prospect of nullification to the jury:
> It is no doubt true that juries have a de facto power to disregard the law as stated to the jury by the judge. We cannot enter the jury room. The jury is never called upon to explain the reasons which lie behind a verdict. It may even be true that in some limited circumstances the private decision of a jury to refuse to apply the law will constitute, in the words of a Law Reform Commission of Canada working paper, "the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law" [...] But recognizing this reality is a far cry from suggesting that counsel may encourage a jury to ignore a law they do not support or to tell a jury that it has a right to do so.
But as they noted, they also reasoned that jury nullification is an integral and unavoidable part of the system, and that leaving juries the final say on the verdict, without appeal, is the intended effect, as a firestop against government abuse. They also reasoned there's no way to actually address jury nullification, beyond ensuring that the jury is properly instructed, without effectively getting rid of juries altogether.
The Canadian cases cite an unusual amount of American and British non-binding precedent (even for the Canadian courts, which tend to borrow freely from other common law jurisdictions when relevant) for their legal reasoning. The legal logic in the Canadian cases closely follows American rulings on jury nullification in the appellate courts, even though it hasn't gone to SCOTUS. The principles and constitutional rights in question are basically identical. I'd be very surprised if the American Supreme Court didn't issue a carbon copy ruling on the topic.
A prosecutor can't appeal an acquittal. Jury nullification is only considered in cases where (for instance) judges instruct juries in ways that prohibit them from considering jury nullification and the defendant is found guilty.
The reality is jury nullification is here to stay because jurors are not required to explain their findings nor can they be punished for finding things 'wrongly.' Judges, per the SCOTUS, are free to discourage this behavior, but there's nothing to stop it and no imaginable mechanism to even bring such a stoppage to the SCOTUS.
I’m not the person you replied to but I believe the “question” of jury nullification they were alluding to was whether or not it can be argued by the defendant. I’m not a criminal lawyer but from what I recall the answer (for lawyers representing defendants, at least) is no.
Again, not a criminal lawyer, but I doubt a judge would ever instruct a jury with respect to nullification. It’s not relevant. The role of the jury is fact finder. The function of the jury is not to determine right from wrong or good law from bad law.
> You cannot substitute your sense of justice, whatever that means, for your duty to follow the law, whether you agree with it or not. It is not for you to determine whether the law is just or whether the law is unjust. That cannot be your task. There is no such thing as valid jury nullification. You would violate your oath and the law if you willfully brought a verdict contrary to the law given to you in this case.
On the juries I’ve served the instructions were extremely limiting and there was an implicit “no jury nullification here”, but they were not as direct as the judge in this case.
One of the things SCOTUS said in regards to this particular case: "While jurors undoubtedly should be told to follow the law, the statement that there is no valid jury nullification misstates the role of nullification because an acquittal is valid, even if it resulted from nullification."
There is also no implied punishment so the judge in case overstepped.
I agree that the judge overstepped. The SCOTUS didn’t. They can say whatever they want in their decision but if a judge can say that jury nullification is invalid and the conviction is still upheld it means a judge can say that jury nullification is invalid.
