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Jury nullification

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Jury nullification is a de facto power of juries to acquit a guilty defendant based on a refusal to accept the law under which the defendant is charged with a crime. While most courts consider nullification a fundamental abuse of jury power (mistrials have been called when a defense counsel attempts to persuade the jury to nullify a verdict), in practice, many countries with a trial-by-jury system (particularly the United States) tend to feel that the deliberations of a jury are private and sacrosanct, and such verdicts generally are allowed to stand (especially in such jurisdictions where double jeopardy -- the right not to be charged twice with the same crime -- attaches).[1]

In practice[edit]

In practice, jury nullification is often used as a protest of a law. Frequent jury nullification of sedition laws in colonial America and alcohol control laws during Prohibition led to legal reforms in those cases, as well as draft evasion cases in the early 1970s, but nullification was also often used to acquit white defendants charged with the murders of blacks in the Jim Crow South. The acquittals of Michael Jackson and O.J. Simpson were occasionally labeled as jury nullification by the media, whether or not they actually were (in this case, on the basis of the perception the prosecutions were politically-motivated show trials that had become media circuses.)

Jury nullification is not inherently a crank issue; it is simply a de facto power of juries, nor is the promotion of jury nullification necessarily a crank issue when it is done to remind juries they have this right with the intended effect of ensuring the law is not unjustly applied and ensuring against showboat trials by prosecutors trying to advance their own careers.

However, jury nullification is also a cause célèbre among some activist groups who see it as a key to advancing their particular crank issue, particularly wingnut groups such as tax protesters and the militia movement - who see in jury nullification a potential wedge for making the tax code unenforceable if they can convince a few jurors of their frivolous arguments against the tax code. The Citizen's Rule Book is an anonymous booklet promoting jury nullification from a fundamentalist Christian slant (our rights come from God, Biblical law is a higher law than secular law, jurors should acquit when man's laws conflict with the Bible, etc.)

It has also become popular among people protesting the War on Drugs[2] (the producers of the HBO crime drama The Wire, for example, came out in favor of its use in drug trials in a 2008 article in Time Magazine[3]). In the 1800s, the abolitionist and individualist anarchist Lysander Spooner advocated it, and wrote a book on the subject that is still referenced by advocates of jury nullification today.[4]

On the left, George Washington University professor Paul Butler advocates widespread jury nullification in all trials of African American defendants as a means of overcoming systemic racial disparities in the court system,[5][6] and civil disobedience and direct action groups on the left often advocate it as well.[7] Loony libertarians are often advocates of jury nullification.[8][9][10]

Fallacies[edit]

Advocacy of jury nullification as a means of protesting laws with which people disagree is often done out of opposition to those laws. Yet, as a strategy, jury nullification does nothing to establish any legal precedent against those laws. A fallacy exists among some of its promoters (particularly of the tax protester ilk but also among some marijuana legalization advocates), that jury nullification will result in making those laws of no effect when in fact all it does is result in making those laws unevenly enforced.

One juror practicing jury nullification and holding out for acquittal will merely result in a hung jury, and the case can be and often is retried. The few cases where the entire jury moves to acquit a defendant can be contrasted to the many where technical violations of those same laws resulted in a conviction. For this reason, civil liberties groups like the ACLU have not been particularly keen on joining the jury nullification cause, on the grounds that it results in uneven (and hence, in the eyes of some, unfair) application of the law while accomplishing nothing toward repealing bad laws, which should be the real goal. The ACLU does defend the advocacy of jury nullification on First Amendment grounds,[11] which is distinct from advocating one way or the other on it themselves. Jury nullification advocates counter by pointing to some specific instances where widespread refusal of juries to prosecute and general noncooperation with the law, most notably during alcohol prohibition in the United States, fugitive slave laws, and draft resisters during the Vietnam War, did help bring an end to those laws.

Fully Informed Jury Association[edit]

In the United States, a Montana-based group called the "Fully Informed Jury Association," or FIJA, was one of the most visible advocates of jury nullification. FIJA was originally founded by Libertarian activists in Montana, and much of their work was on ill-fated attempts at passing constitutional amendments to state constitutions establishing that jurors be informed of their right to nullify a law, often using the ballot initiative process, passing out literature outside courthouses, and on convincing state governors to declare a "jury rights day" (a strictly ceremonial gesture).

More recently, FIJA is under new leadership, and seems to be making common cause with some pseudolaw advocates, especially in FIJA's annual distribution of a "Freedom Calendar"[12] that is full of atrociously reasoned "common law" references, Bible thumping and godbothering, and loaded "patriotic" imagery.

FIJA's own literature on jury nullification is legally sound[13] and has been used by people across the political spectrum,[14] but their tendency to work with cranks like "Christian patriot" activist M.J. "Red" Beckman[15] and distribute the aforementioned Freedom Calendar has probably done their cause more harm than good, and at the least indicates they just don't know where to draw the line.

In England[edit]

Although best known in the US, the concept comes from English common law. Famous examples include Bushel's Case in 1670, where a judge attempted to fine his jury for contempt of court because they returned a verdict contrary to his instruction in a case of two Quakers accused of unlawful assembly; one juror, Edward Bushel, refused to pay the fine, and another court agreed he could not be punished simply for returning a verdict. Much more recently, the acquittal of Clive Ponting in 1985 is considered another case of jury nullification: he was on trial for violating the Official Secrets Act after he had passed secret papers to an opposition MP, Tam Dalyell, but was found not guilty by the jury.[16][17][18]

See also[edit]

References[edit]

  1. Juries can also (and probably have) convicted an innocent defendant as well, but is less effective due to the defendant's right to an appeal after conviction; this has sometimes been lumped in with jury nullification but, in fact, it is the opposite of jury nullification.
  2. For example The November Coalition
  3. "The Wire's War on the Drug War", Time March 5, 2008
  4. Lysander Spooner, An Essay on the Trial by Jury, 1852
  5. Paul Butler, "My Jury Service to America", The Huffington Post, July 1, 2009
  6. He has authored numerous articles in scholarly journals on the subject, starting with "Racially Based Jury Nullification: Black Power in the Criminal Justice System," Yale Law Journal 677-725, 1995
  7. For example Climate Ground Zero, and Dissident Voice: A Radical Newsletter in the Struggle for Peace and Justice
  8. Doug Casey on Juries and Justice, LewRockwell.com, November 4, 2010
  9. Vin Suprynowicz, "The Rights of Juries Take Another Hit", Las Vegas Review-Journal, May 13, 2001
  10. Radley Balko, "Justice Often Served by Jury Nullification", Cato Institute, August 1, 2005
  11. Benjamin Weiser, "Prosecution Explains Jury Tampering Charge", The New York Times, November 27, 2011
  12. Freedom Calendar official site. The calendar is published in St. Paul, Minnesota, not by FIJA, and appears to be distributed by several different groups. Here is an interesting criticism of the calendar for excluding women's rights and African-American history, but really the calendar is nuttier than the Citizens Rule Book, looks like it could be a parody and might lead someone who is otherwise sympathetic to jury nullification to write off FIJA for distributing this kind of garbage.
  13. Judges don't like it but there isn't much they can do, although there has been the occasional attempt at prosecuting FIJA pamphleteers for "jury tampering" and articles fuming over the practice, e.g. Frederic B. Rodgers, "The Jury in Revolt? A 'Heads Up' on the Fully Informed Jury Association Coming Soon to a Courthouse in Your Area", The Judges' Journal, Summer 1996
  14. Their standard brochure is True or False?
  15. Alexander Cockburn, "Beat the Devil", The Nation, July 17, 1995
  16. Jury Nullification: Do The Right Thing?, Dan Bunting, UK Criminal Law Blog, Nov 5, 2013
  17. See the Wikipedia article on Bushel's Case.
  18. See the Wikipedia article on Clive Pointing.