Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues

from the apparently-we-don't-want-fully-informed-juries dept

Radley Balko points us to the news that a judge in Florida has banned the distribution of certain flyers at or around the courthouse. Apparently, there’s a group called the Fully Informed Jury Association (FIJA) — which seems like a pretty good idea. Why wouldn’t we want fully informed juries? The group has been handing out pamphlets to jurors which basically say that the jurors should vote with their conscience and not feel pressured into voting against what they believe. Seems like pretty standard stuff.

However, it looks like Chief Judge Belvin Perry doesn’t like fully informed juries. He signed an order barring the group from handing out their pamphlets… raising all sorts of free speech and prior restraint questions. In order to try to get around the prior restraint question, Judge Perry stated that this “restriction upon expressive conduct” was “necessary to serve the state’s compelling interest in protecting the integrity of the jury system.” The judge clearly knows he’s treading in free speech/prior restraint waters in specifically noting that it’s a restriction of expression and calling out the “compelling interest” line. Of course, you can’t just say there’s a compelling interest. There actually has to be one, and I’m struggling to see how better informing a juror of their rights as a juror could possibly be about manipulating a jury or would harm the integrity of the jury system. Wouldn’t you think a juror who better understand what being a juror means increases the integrity of the system?

It’s almost as if the judge is admitting that they want uninformed jurors who don’t know their own rights.

It sounds like the group is fighting back, so hopefully the ban will soon be reversed and the judge will be given a refresher course in the First Amendment and free speech.

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Comments on “Judge Bans Handing (Factual) Pamphlets To Jurors; Raising First Amendment Issues”

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429 Comments
average_joe says:

The group has been handing out pamphlets to jurors which basically say that the jurors should vote with their conscience and not feel pressured into voting against what they believe. Seems like pretty standard stuff. *** Of course, you can’t just say there’s a compelling interest. There actually has to be one, and I’m struggling to see how better informing a juror of their rights as a juror could possibly be about manipulating a jury or would harm the integrity of the jury system. Wouldn’t you think a juror who better understand what being a juror means increases the integrity of the system?

Jurors are not supposed to “vote with their conscience,” and it is incorrect to state that that is their right. They are supposed to vote based on the facts in evidence and the law. To promote otherwise would certainly “harm the integrity of the jury system.” That’s all it would do. Pretty standard stuff.

Rich says:

Serving on a jury was one of the most disheartening experiences of my life. We were not allowed to take notes. We were not allowed to have a copy of the actual law in the jury room that the defendant was accused of break. The worst part was most of the other jurors just wanted to quickly reach an agreement (it didn’t matter whether it was guilty or not) because NASCAR was on.

Hugh Mann (profile) says:

Re: Re:

I actually found my one time on a jury to be fairly rewarding. While certainly nobody WANTED to be there, it appeared to me that – even though everyone came to that deliberation room with their own varied life experiences that influenced how they looked at the evidence – my fellow jurors were all trying to be fair and to do a good job. I felt that the disagreements we had during deliberations were based on opinions each juror came by honestly, and that when we did reach a verdict, everyone was satisfied that we had done the right thing.

HM

Ima Fish (profile) says:

My guess is that this is about jury nullification. The idea that a jury can ignore the law and acquit a person charged with a crime.

While courts recognize that jury nullification exists, they don’t like juries to actually know about it. They’re afraid of the chaos it’d create if juries knew they could ignore the law.

Here’s a good summary:

No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as [the proponents of jury nullification] claim, but inevitably anarchic. That is precisely why trial courts do not inform jurors of their power of jury nullification.

People v. Morgan, 101 Cal.Rptr.2d 314 (2000)

Richard (profile) says:

Re: Re:

Why do you think that juries need to be told they can nullify? It is pretty much obvious that the possibility of jury nullification is precisely the reason why we have juries in the Anyone who needs to be told that really shouldn’t be on a jury – but then juries are mostly made up of people who have nothing better to do so maybe….

ChimpBush McHitlerBurton says:

Re: Re: Re:

“Why do you think that juries need to be told they can nullify? It is pretty much obvious that the possibility of jury nullification is precisely the reason why we have juries in the (first place).”

The reason I suspect Richard, is that Judges and Courts routinely instruct the jury that it is their duty to “determine whether or not the law was broken only”. They do this specifically to mislead the jury into thinking that they have no moral justification to offer.

Basically, courts want to convict, and they don’t want juries judging the law before they judge the defendant. This goes against our whole system of a trial by your peers, but the courts don’t much care.

The folks who hand out these pamphlets outside the court do so because the court has made it clear to lawyers that if they even mention jury nullification, they will be disbarred.

Shameful.

CBMHB

Josh in CharlotteNC (profile) says:

Re: Re:

In the UK at least the jury has the right to vote innocent if they disagree with the law. Surely you have a similar system?

Yes, the term is called jury nullification. From my understanding (IANAL) however is that the concept has been weakened considerably. Prosecutors and plaintiff’s attorneys can get a juror removed if they can show that the juror is intending to do it. Neither judges nor the defense can actually mention that a jury has that power.

Anonymous Coward says:

Actually average_joe, its not the jurors duty to interpret laws. They are there to be the check on legislation that goes against public interest.
Take prohibition for example. It was not repealed because all the nice citizens wrote to their legislators and complained as your grade school teachers undoubtedly told you. It was repealed because bootleggers were brought to court and the jury would vote not guilty every time, even though it they were blatantly guilty according to the constitution.

This is a very seldom spoken fact about jurors because of the obvious legal ramifications it would cause when jurors start thinking in terms of their own conscience instead of some politicians ‘law’

average_joe says:

Re:

Completely untrue. The founding fathers considered jury nullification a necessary fourth check and balance to the other three in our government.

First of all, citation please. Secondly, even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.

Anonymous Coward says:

Re: Re:

“even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.”

You’re right, but they do (or at least should) have a first amendment right to do so, but that law is separate from jury nullification.

Richard (profile) says:

Re: Re:

Secondly, even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.

You are quite correct of course.

Although both statements are true the second is not a consequence of the first. (Since you have a first amendment right to stand outside the courthouse and say pretty much anything you like – whether the founding fathers agree or not.) However it is also a strawman – since no-one made that argument in the first place.

Not a Lawyer says:

Isn’t there a flipped version or two of ‘jury nullification’ that can happen?

Like the reduction of damages awarded in the McDonald’s coffee case or any other case where damages are lowered?

Or wiping out the verdict completely? Although I’d imagine that might have more to do with procedural issues.

Just curious.

Gwiz (profile) says:

Re:

Jurors are not supposed to “vote with their conscience,” and it is incorrect to state that that is their right.

Really? You can state it is not within my right all you want, but when I enter that deliberation room my vote will always be with my conscience.

They are supposed to vote based on the facts in evidence and the law.

True. And lawyers are ethically bound not to lie, BUT, in my mind, omission of truth (SOP for lawyers) is also lying, so I guess the lawyers aren’t living up to expectations either.

RD says:

Re:

“First of all, citation please.”

http://www.isil.org/resources/lit/history-jury-null.html
http://www.foxnews.com/story/0,2933,163877,00.html
http://www.jurybox.org/

Jurors should acquit, even against the judge’s instruction…if exercising their judgement with discretion and honesty they have a clear conviction the charge of the court is wrong.
— Alexander Hamilton, 1804

It is not only the juror’s right, but his duty to find the verdict according to his own best understanding, judgement and conscience, though in direct opposition to the instruction of the court.
–John Adams, 1771

I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.
— Thomas Jefferson, 1789

It will be of little avail to the people that the laws are made by men of their choice, if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they… undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow
— James Madison

“Secondly, even if the Founding Fathers were for jury nullification, that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.”

Wow are you serious?? That is EXACTLY what the First Amendment is for Jesus, its like you ONLY see things from the Govt point of view to the ABSOLUTE EXCLUSION of any rights of the people.

You are not only too stupid, but too lazy to do a 30 second google search, as well as willfully ignorant (and refusing to learn) basic constitutional concepts and laws, to be a lawyer.

Now please GFY and FOAD.

Allan R. Wallace (profile) says:

Jury Novation

In the UK at least the jury has the right to vote innocent if they disagree with the law. Surely you have a similar system?” – Anonymous Coward

The US had such a system, but judges jealous over their power refuse to acknowledge it. Judges want their instructions to the jury to be the only instructions available.

From the page my name is linked to:

. . . Of even greater power was jury nullification which allowed juries to strike down (nullify) unjust laws and thereby declare a defendant not guilty. Paths to protect from over reaching governments were emerging and growing.

The jury has the right to judge both the law as well as the fact in controversy.”
John Jay, first U. S. Supreme Court Chief Justice

The influence of this idea can be seen in a quote from Thomas Jefferson, author of the Declaration of Independence and third president of the United States of America.

If a law is unjust, a man is not only right to disobey it, he is obligated to do so.”
Thomas Jefferson

J News says:

Re: Jury Novation

I believe the reason why Jury Nullification is in such disfavor today is because during segregation, it was widely used by all-white juries to acquit whites who lynched/murdered blacks, under pretty much the same rationale that people today use today — that the jury, not the government, should be able to decide what is and isn’t illegal.

This is why we can’t have nice things.

AJ says:

Re:

Looks to me like Jury Nullification is a vital part of our legal system. Our founding fathers were very aware of this fact…

“I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”
-Thomas Jefferson

“If a juror accepts as the law that which the judge states, then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty.”
(1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267)

Sources:
http://www.isil.org/resources/lit/history-jury-null.html
http://en.wikipedia.org/wiki/Jury_nullification

Anonymous Coward says:

Re:

Oy, there. I’m NOT saying it was frivolous at all – I am aware of the details also. In fact, I use it as an example here because many don’t realize that the jury’s award to the victim was substantially lowered from what was blared in headlines.

It was curiosity on my part about a flipped version of jury nullification – the jury decided one thing but their verdict was ‘nullified’ afterward. That’s all.

average_joe says:

Re: Re:

It was curiosity on my part about a flipped version of jury nullification – the jury decided one thing but their verdict was ‘nullified’ afterward. That’s all.

In civil cases the judge can issue a judgment non obstante veredicto (JNOV) where the judge throws out the jury verdict and institutes his own judgment. http://en.wikipedia.org/wiki/Judgment_notwithstanding_verdict

average_joe says:

Re:

You are not only too stupid, but too lazy to do a 30 second google search, as well as willfully ignorant (and refusing to learn) basic constitutional concepts and laws, to be a lawyer.

Now please GFY and FOAD.

See, this is the kind of abuse I receive systematically on techdirt. I have an opinion that differs from the herd, and I’m treated like shit because of it. I was going to respond to your points, RD, but then I got to the end of your post and realized that you don’t want to have an honest, open discussion. You just want to hurl insults. You are not advancing the conversation. You are destroying it.

AJ says:

Re: Re:

“See, this is the kind of abuse I receive systematically on techdirt. I have an opinion that differs from the herd, and I’m treated like shit because of it”

LOL!!!!!!!!!!!
Great, thanks Joe, now i’ve got to clean sprite off my screens… you a victim…. if I had a dollar for everytime you insulted someone….

“You can find sympathy between shit and syphilis in the dictionary?..”

Hugh Mann (profile) says:

Jury is the finder of fact

The jury is a finder of fact. The judge is the arbiter of the law, but needs the jury to tell him/her if the evidence presented fulfills the elements of the crime(s) charged.

The jury is not there to express its opinion regarding the law, and should not be arguing the merits of the law itself. Its function is purely one of factual determination.

What this “Fully Informed Jury Association” is doing is basically encouraging jury nullifcation. As presented here, they’re not “informing” the jurors of anything. They are encouraging them to consider ignoring the law and misrepresent the facts in order to arrive at a verdict that is preferred by that juror – regardless of whether the defendant is actually guilty of the crime(s) charged.

As for the claim above that the Founding Fathers actually considered jury nullification to be a “fourth” check and balance, that’s news to me. They were all very much law-and-order guys, and they expected disputes regarding our laws to be resolved within the rules they provided. I’m not aware of any of them considering that jury nullification was a useful way to deal with a law that got passed by Congress, who then overrode a Presidential veto, and the resulting law then survived judicial review. In fact, if the jury acquits a defendant based on jury nullification, the law might never actually get fixed, since it will not be subject to judicial review – since you can’t appeal a verdict that never happened.

HM

Hugh Mann (profile) says:

Re: Jury is the finder of fact

I see some later posts above with cites to early sources that, if they are not outright arguing for a “right” for jury nullification, are at least leaving room for it to exist in a sort of tolerated form. Interesting. I still believe that the Founding Fathers didn’t look at the jury system as being a check EVERY TIME on EVERY LAW, but that it was a last-ditch effort that could be made in special circumstances. What good is the legal system if any random group of 12 citizens can effectively overturn any law they want to?

Certainly, as some have mentioned, there’s nothing that prevents a juror to cast a vote based on personal opinion rather than an objective assessment of the evidence presented. However, would not that jury nullification can work both ways. If they’ve a mind to, a jury can convict, even if the evidence doesn’t really support a conviction. Of course, that conviction can be appealed, but findings of fact in the trial court are generally given a lot of deference on appeal.

HM

Bengie says:

Re: Jury is the finder of fact

The jury has to be unanimous. If one person in the group thinks someone should get of free on murder, that person has to convince all the others to think his way.

Nullification is supposed to be a way to block frivolous lawsuits and remove unfair laws.

Did someone break into your house and hurt themselves while trying to steal your stuff? Normally you would be held responsible for their injuries because of the law, but if the jury knows about nullification, you could be acquitted.

Michael (profile) says:

Re:

The jury is supposed to weigh the evidence and decide if the defendant is guilty beyond a reasonable doubt (or a preponderance of the evidence in a civil matter).

However, they CAN go beyond that scope and ignore the law in a case in which they find the law unjust. This is the heart of jury nullification. It is a check against corruption in the system that allows for juries to create precedent that effectively reverses a law that is overwhelmingly felt to be unjust. Our system of government can create laws that contradict popular belief, and then a series of jury nullifications can fix that mistake.

I have been a juror several times (for some reason, I appear impartial and intelligent?) and that second part has never been explained to me by the courts. The only reason I know that is an option is a couple of lower-level law classes I took in school years ago.

Anonymous Coward says:

Re:

If the juries are morons then the problem isn’t the existence of jury nullification and giving them more choices, the problem lies with the fact that they are morons and hence are unable to properly evaluate evidence to come to a reasonable conclusion in the first place. Allowing them to evaluate evidence and come to conclusions based on that evidence requires the assumption that they are not morons and hence they are intelligent enough to rationally exercise jury nullification if they see fit.

average_joe says:

Re: Re: Re:

Of course not. That’s kind of the point of this post. That jurors actually have the power of nullification, but the court system really doesn’t want us to know that. Hence the order banning the handing out of the pamphlets.

They have the power, sure, but not the right. That’s my understanding anyway.

Anonymous Coward says:

There is a difference between telling someone to vote with their conscience and telling them they can vote in a manner that is against what they consider an unjust law.

By voting with their conscience they can find someone not guilty because they feel sorry for the defendant. Or they can vote guilty because they don’t like the way the guy looks.

Just saying you can vote against what the law says without explaining the specifics of the actual intent of jury nullification would be wrong, in my opinion.

I haven’t seen the actual pampklet so I don’t know if they explain this ot not.

RD says:

Re:

“See, this is the kind of abuse I receive systematically on techdirt. I have an opinion that differs from the herd, and I’m treated like shit because of it. I was going to respond to your points, RD, but then I got to the end of your post and realized that you don’t want to have an honest, open discussion. You just want to hurl insults. You are not advancing the conversation. You are destroying it.”

Aww diddums widdle fweelings get butthurt? Sorry, but you left “honest disucssion” at the door with a) your ridiculous “govt is ALL” rhetoric, and b) your own incessant name-calling of others. Funny that it only seems to be a problem when its directed at you.

You want to be a lawyer and you cant take the pressure of a little name-calling on an internet forum? And then throw up your hands and dont rebut when your points are called out (with citations)? Well, ok…good luck with that.

average_joe says:

Re:

Why am I being abused today? What justification is there? Why aren’t you admonishing those who are adding nothing to the conversation?

I’m trying to have a polite and frank conversation, and people are jumping on me left and right.

Are you suggesting that since I’ve reacted badly to the abuse in the past, that it’s game on and everyone can abuse me all they want? I hope not.

vivaelamor (profile) says:

Re: Re:

“Why am I being abused today? What justification is there? Why aren’t you admonishing those who are adding nothing to the conversation?”

If you’re going to throw that out there, the person who told you to fuck off and die actually supplied a load of relevant information. I’m not motivated to go through the rest of the thread to find out who else you might be referring to. Plus, that person being an ass was evident from reading their post, whereas your hypocrisy wasn’t.

Why don’t you jump in to defend Mike every time someone insults him?

“I’m trying to have a polite and frank conversation, and people are jumping on me left and right.”

I can’t say I agree with everyone who responds to your posts, many people don’t seem to say anything beyond voicing their opinion of you, but hey! I don’t see you jumping in every time someone talks about freetards. If someone says something that’s factually incorrect then I’ll tend to post a response. I’m unsure what you’re expecting, for someone to wave a magic wand and make people like you?

“Are you suggesting that since I’ve reacted badly to the abuse in the past, that it’s game on and everyone can abuse me all they want? I hope not.”

No, actually I explicitly said the opposite, in that I will not defend someone who throws around the phrase ‘fuck off and die’. Your hypocrisy is a separate issue that I only felt worth mentioning because it seems to be a running theme. I don’t actually expect anyone to start being nicer to you, or you to them, I just expect people to realise that you’re not some poor victim of the Techdirt hordes, any more than Mike or those who tend to agree with him are victims of a horde of posters who closely resemble the classic stereotype of an internet troll.

Anonymous Coward says:

Re: Re:

Actually, this isn’t productive. You co-opt conversations constantly and I’ve called you out on it more than once.

When someone responds to something you said which was obviously poorly thought out you immediately move to the victim stance. If they didn’t say anything mean enough for that ploy to work then you hurl back a bunch of B.S.

Your entire tactic is to get people frustrated with you so that you can always play from the safe, pathetic, victim position.

Richard (profile) says:

Jury is the finder of fact

The jury is a finder of fact

Wrong. The jury is there to normalise the proceedings relative to the defendant. Professional lawyers would do a much better job of finding fact – but the jury (supposedly a jury of peers of the defendant) are better able to judge that part of guilt that derives from intent. They are there to put themselves in the defendant’s shoes and ask themselves if they would have done the same and/or if they would have felt that they were doing wrong. Many laws have a criterion that mentions a “reasonable man”. The jury is supposed to consist of just such reasonable men.

In short they are there to prevent the judicial system from drifting away from the general population.

Gwiz (profile) says:

Re: Re:

Here’s an example: you have the power to drive 100 MPH down the highway, but not the right.

OK. I get that. I have the power to shoot someone, but not the right.

But, in the case of jury nullification, I was discussing a “legal power” which implies that the “legal right” is included does it not? As in, “I have the power to sue someone for trespassing on my property” which certainly implies I have a right to sue that someone.

So I am still unclear how you feel jurors have the power of nullification, but not the right.

Richard (profile) says:

Re: Re:

you have the power to drive 100 MPH down the highway, but not the right.
and if I do so then I run the risk of being prosecuted and the main reason for me not being prosecuted would be lack of detection by the authorities. However, in the current context, the authorities have all the information and therefore I contend that if juries had the power but not the right to nullify then the authorities would prosecute them. To my knowledge no juror has been prosecuted for nullification (although I understand that in the US the judge can overturn the jury’s verdict) since the 17th century Haymarket case.

From Wikipedia
“In the 1670 “Hay-market case”, William Penn was accused of the crime of ‘preaching Quakerism to an unlawful assembly’ and while he freely admitted his guilt, he challenged the righteousness of such a law. The jury, recognizing that William Penn clearly had been preaching in public, but refusing to find him guilty of speaking to an unlawful assembly, attempted to find Penn guilty of “speaking in Gracechurch-street”. The judge, unsatisfied with this decision, withheld food, water, and toilet facilities from the jurors for three days. The jurors finally decided to return a not guilty verdict overall, and while the decision was accepted, the jurors were fined. One of the jurors appealed this fine, and Chief Justice Sir John Vaughn issued an historically important ruling: that jurors could not be punished for their verdicts. This case is considered a significant milestone in the history of jury nullification.[21]”

So I would contend that in the case of juries the power and the right amount in practice to the same thing.

Richard (profile) says:

Jury Tampering

Suppose they were to try an abortion case. The pamphlet could be interpreted as telling jurers not to follow the law as it pertains to the right of a woman to have an abortion, but to the emotional sludge cooked up by anti-choice groups. “Follow your heart” is not always the same as “follow the law.”

Believing something is wrong is not the same as believing that it should be illegal – still less that it is illegal

Anonymous Coward says:

Jury nullification is one of those “last resort” sorts of ideas, where the the jury truly thinks that the law and the situation is out of whack. It shouldn’t be the first thing.

What this group wants to do is turn every jury into source of activism. The real effect may be that every case ends up with a hung jury, because one person decides “it ain’t right for the (insert racial / sexual / color here) man” or “it ain’t right for that old person” or “it’s ain’t right for that guy”.

At that point, it stops being jury nullification, and starts being legal system nullification. Snitches get stitches, and juries better not agree with the law.

Misinforming or misleading juries about their role in the process, moving nullification from a last resort to a first step would be corrupting the system. That isn’t fair for anyone.

Almost Anonymous (profile) says:

Re: Re:

Ok, how do you justify the fact that judges very deliberately misinform jurors about their instructions when they not only do not mention the right of jury nullification, but also ban discussion of it outside of their courtroom?

In fact, most instructions run diametrically opposite to the concept of jury nullification, thereby giving the deliberate impression that there is no such thing: “You must find only according to the law as given to you…” and so on. The instructions are a flat-out lie.

Also, considering the kinds of laws being passed nowadays, I don’t have a real problem with “legal system nullification.” Frankly, the whole thing is broken anyway.

Almost Anonymous (profile) says:

Re:

Yeah, I’m just going to jump on the bandwagon, since I see that it has already been addressed above:

Jury nullification… nullifyin’ bad laws for 200+ years and counting.

And judges HATE when anyone knows about it or tells other people about it. You want to get out of jury duty? Just utter those two words and I’ll be shocked if you’re not on your way home in a New York second.

Gabriel Tane (profile) says:

Hey Joe...

Joe, your comments are spread out through a few different threads, so I’m going to start a new one for this…

You can’t toss around insults and derision at other people and expect people to forget just because we’re in the comment section of a different story.

Did you say anything here ( http://www.techdirt.com/articles/20110204/23291412974/judge-bans-handing-factual-pamphlets-to-jurors-raising-first-amendment-issues.shtml#c117 ) to earn RD’s ire? No. But elsewhere, you have been so night-and-day abusive that I’ve wondered if you had a kid brother that has your password or something. I don’t condone RD’s attack in that particular post because I think we should all rise above those who are abusive and set a good example (and, yes, I know I do this too… I’m trying…), but nor am I surprised.

If you want people to treat you fairly, then you need to play fair… not just in this article, but all of them. Until then, saying “But I didn’t do anything today to deserve ill treatment” is just 5 year old sibling-fighting logic.

Chris in Utah (profile) says:

Ah yes.

One of my favorite articles highlights below

“If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen’s safeguard of liberty.” (1788) (2 Elliots Debates, 94, Bancroft, History of the Constitution, 267)

Despite the courts’ refusal to inform jurors of their historical veto power, jury nullification in liquor law trials was a major contributing factor in ending alcohol prohibition. (Today in Kentucky jurors often refuse to convict under the marijuana prohibition laws.)

However, jury veto power is still recognized. In 1972 the D.C. Circuit Court of Appeals held that the trial jury has an “…unreviewable and irreversible power…to acquit in disregard of the instruction on the law given by the trial judge.” The pages of history shine upon instances of the jury’s exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law (473F 2dl 113)

About 18 months ago, armed with a number of pamphlets explaining the importance to each of us in having the courts fully inform juries of their rights, I stood in the Mendocino County Courthouse. I had been talking about this issue, with courthouse visitors when I was “invited” into Judge James Luther’s courtroom by two of his bailiffs. Judge Luther, showed me how in general our courts have eroded. I was told to stop talking to my fellow citizens about their constitutional rights. Their right to understand a jury’s role in the court procedure. I was told to stop or be arrested for jury tampering.

OldMugwump (profile) says:

Anarchy

Every juror isn’t there to impose his or her own version of justice. That’s anarchy.

No, anarchy is when there are no enforceable rules.

A jury is a mechanism for making it harder for injustice to occur. The jury mechanism has evolved over more than 1000 years because it is a critical part of successful societies. One key function of juries is to refuse to enforce unjust laws. A jury can’t impose arbitrary rule on arbitrary people.

I think you’re a troll, Average Joe. I find it hard to believe you mean what you say.

Chris in Utah (profile) says:

Ah yes.

This may be a tangent but its relevant when looking ahead. I put more stock in the people building rehab centers for people with abusive habits than the prison system any day of the week. Amsterdam does just fine.

Also, nobody deserves to have there life ruined because of drugs not controlled by a government body.

I still regret not telling the cop out my front door arresting a guy for pot with intent to distribute from the neighboring apartment to go arrest a real criminal.

Martin Halstead says:

Stick to your subject

What you refer to as “free speech” is almost certainly grounds for a mistrial, and may constitute jury tampering. It is fundamental to the American system of jury trial that the jury must decide based on the evidence and law presented in court, and only that evidence. The jury is not allowed to make up new laws that it thinks should be in force, nor disregard those that are in force. This principle is a protection for the accused and for the people. It prevents convictions based on community opinion, the personal prejudices of jurors, or past reputation of the accused. A jury takes an oath to apply the law as written to the facts presented. If, as you propose, anyone could hand fliers to a jury stating “facts” about the accused that are not in evidence and asking the jury to consider these ‘facts” this entire system collapses. Trial is then not by law and evidence but by innuendo and opinion. The restrictions you complain about protect the freedom of individuals in court proceedings.

An example:

Assume you have a previous conviction for stationary rape. Many years later you are sued for copyright violation. would you consider it fair if the copyright holder distributed literature to your jury asking that they “teach this rapist a lesson?” by rendering a big verdict for infringement? If you don’t think this should happen, why do you support “free speech” restriction when you want a fair trial, but not when someone else does?

Anonymous Coward says:

Re:

Right or wrong, that’s not the way it’s viewed now. I would love to see a lawyer try to submit jury instructions(or even in his final statement) try to say “don’t worry about the law, vote with your conscience.” Despite what a few of the framers might have thought, they just put the right to a jury trial in the Bill of Rights, but did not define the right for a jury to nullify abusive laws.

Anonymous Coward says:

Re:

Ok, how do you justify the fact that judges very deliberately misinform jurors about their instructions when they not only do not mention the right of jury nullification, but also ban discussion of it outside of their courtroom?

if that is an issue, it is for the defense lawyer to bring up on appeal. See, it’s the amazing thing about the legal system in the US, any error by the judge is reason for a new trial.

If you really think the legal system is broken, move somewhere that doesn’t have a functional system and find out what it’s really like.

Richard (profile) says:

If you have the power to prevent injustice, you have an obligation to do so

Lord Mansfield (1784) would have agreed with you on that point – but he admitted that in practice the jury system allows it.

So the jury who usurp the judicature of law, though they happen to be right, are themselves wrong, because they are right by chance only, and have not taken the constitutional way of deciding the question. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.

I would contend that the jury is there for precisely that purpose – (although mostly for marginal cases rather than complete reversal.)

Anonymous Coward says:

Re:

For what it is worth,
I disagree with probably 98% of what you say BUT
I have tremendous respect for you because you

1: Have a name
2: Try to refrain from the pointless name calling that you are often subjected to.
3: Demonstrate a clear passion for your positions(ie: you are not just arguing to be a poop disturber).
4: Acknowledge when it is shown that you were mistaken.

I wish you well in your studies.

Anonymous Coward says:

Jury is the finder of fact

Unless every law school course I’ve taken is incorrect, the trial court(i.e. Jury or Judge if it’s a bench trial) is the finder of fact, and in many jury trials the jury will apply the facts to the law to determine if it fits(this depends on what kind of laws you’re adjudicating). Jurors are great for determine subjective things, such as intent, when necessary.

Sneeje (profile) says:

Jury is the finder of fact

It wouldn’t be an overturn, just a pass (meaning the punishment for this law cannot be applied in this particular case).

That doesn’t completely invalidate your point though–if enough groups of 12 people do that, the law is effectively “toothless” and therefore de facto overturned.

I’m just saying it isn’t an instantaneous thing.

AR (profile) says:

Re:

I think this is where you may be getting a little confused. You have the power to go 100 mph, but not the right when its illegal to go that fast. If the speed limit IS 100 mph then you have both the power and the right. With jury nullification its the same way. Nullification is not illegal and is actually part of the system. Its just that judges dont want the jurists to know that because they feel it takes power away from them and gives it to the people. So, since jury nullification is legal, then the jurists have both the power AND the right to utilize this option.

Now, about passing out pamphlets in front of the courthouse. It is the obligation of the court to inform the jurists of how the system works. if they omit parts of it then they are actually steering the jury to make a decision from certain choices. If the courts refuse to FULLY inform juries of there options then someone has to. The 1st amendment gives the public exactly that power and that right.

Rich says:

Re:

Where did you look? McDonald’s had been warning by the health department on several occasions that they keep their coffee much to hot (180 degrees as oppose to 160). The woman who filed suit didn’t just get a little scalding from the coffee. It was so hot it caused 3rd degree burns. She needed three reconstructive surgeries. I don’t consider that frivolous.

btr1701 (profile) says:

Nullification

> even if the Founding Fathers were for jury
> nullification, that does not mean someone today
> has a First Amendment right to stand outside the
> courthouse and promote it.

You’re right. The fact that the Founders were in favor of nullification doesn’t give rise to a right to promote it. It’s the 1st Amendment that guarantees that right.

The idea that this is such a compelling state interest that it trumps the 1st Amendment when there have been so many other *more* compelling state interests (Pentagon Papers, etc.) where actual lives and national security were in jeopardy but were nevertheless found not to trump the 1st Amendment is ridiculous.

And given the fact that nullificiation is indeed legal in most jurisdictions, it’s hard to see how talking about it could corrupt the system or how it could be constitutional to ban talking about it.

Gwiz (profile) says:

Re:

I think this is where you may be getting a little confused. You have the power to go 100 mph, but not the right when its illegal to go that fast. If the speed limit IS 100 mph then you have both the power and the right. With jury nullification its the same way. Nullification is not illegal and is actually part of the system.

Thank you. I was having trouble wording this correctly myself. What you articulated had formed in my head, but I couldn’t get it into the right words.

Almost Anonymous (profile) says:

Re:

“””if that is an issue, it is for the defense lawyer to bring up on appeal.”””

That’s just retarded. State the proper instructions up front. Don’t lie. Issue solved. Also, you and I both know that no lawyer will EVER win an appeal with the defense of “the judge neglected to tell the jury that they could nullify the law.” Give me a break.

“””If you really think the legal system is broken, move somewhere that doesn’t have a functional system and find out what it’s really like.”””

Ahh, the old love it or leave it line. Hey buddy, fuck you. I love my country, I just deplore the sorry state of affairs we’re in. I’m embarrassed about our reaction to youknowwholeaks. I’m ashamed of our ultra-partisan representatives. But I still hold out hope that things can get better. I suggest you think twice before telling someone to leave.

Martin Halstesead says:

Re:

What I find amazing in this entire debate is the idea that because a founding father SAID SOMETHING about jury nullification, that the concept is the law or part of the constitution. Everyone just seem to accept that jury nullification is a right (somehow somewhere) under US law because of a statement or two of personal opinion a couple of hundred years ago. If the founding fathers had, AS A MAJORITY wanted jury nullification to be a constitutional right, they would certainly have placed it in article III somewhere. It isn’t there. So may people now use the constitution and the founder as a vehicle for their own beliefs of the way things ought to be. Wishful thinking does not a constitutional right make.

ChimpBush McHitlerBurton says:

Re:

“Jurors are not supposed to “vote with their conscience,” and it is incorrect to state that that is their right. They are supposed to vote based on the facts in evidence and the law. To promote otherwise would certainly “harm the integrity of the jury system.”

Snore. Irrelevant. There’s a reason you need a license to practice law.

So you’re crazy and stupid. Got it.

CBMHB

Almost Anonymous (profile) says:

Stick to your subject

To the best that I can see, the pamphlets did not discuss particulars of the actual trial itself, but rather discussed juror’s rights such as jury nullification. I would agree with you if they were trying to pass around details pertaining directly to the trial. However, since they were not, your “stationary rape” comparison is just apples and oranges.

btr1701 (profile) says:

Re:

> Isn’t there a flipped version or two of ‘jury
> nullification’ that can happen?

> Like the reduction of damages awarded in the
> McDonald’s coffee case or any other case where
> damages are lowered?

When the court reduces a jury’s award, it’s called remittitur, not nullification. (And when they increase a jury’s award, it’s called addittur.)

average_joe says:

Re:

AJ, be fair. You have stated significantly worse insults in my direction when I disagreed with you in the past. Stop playing victim, or people are going to start dredging up your past comments.

Your response is really disappointing. Rather than promote a positive discussion, you are supporting those who are simply throwing out insults. I’m not surprised by this, but I am disappointed.

Anonymous Coward says:

Re: Re:

Your response is really disappointing. Rather than promote a positive discussion, you are supporting those who are simply throwing out insults. I’m not surprised by this, but I am disappointed

This is sort of the same feeling I get around here too. While I can understand which side of the (logical) argument Mike may come down on, I cannot for the life of me understand why he would want to support and promote antagonistic reactions from certain posters here.

I suspect it has to do with Mike feeling attacked personally, not being in the right frame of mind to separate out the attack of ideas (aka, “mike, you got it wrong”) from more hateful attacks (“Mike, you are a frigging idiot”). Intelligent people can disagree. They can accept that everyone doesn’t agree with them. The smartest of them use that opposition and inspection of ideas to sharpen their messages and fix flaws in their theories. Alas, that does not appear to be the Techdirt way.

AJ, don’t let the people here get you down. Understand that the react with fear, anger, and resentment when you kick their sacred cows. Those beliefs are what sets the Techdirt universe, and knocking them down or making them look less than complete will get you nothing but hostile reactions.

Just smile, nod your head, and be ready for someone to tell you to “grow up”. You’ll be fine.

btr1701 (profile) says:

Re:

> Why do people always bring up the McDonald’s Hot
> Coffee Case as an example of a frivolous lawsuit?

Considering that’s not what happened here, I’m not sure why your question is relevant.

He didn’t say it was frivolous case, he merely used it as an example of a case where a jury’s initial award of damages was subsequently lowered by the court.

Hugh Mann (profile) says:

Jury is the finder of fact

In the US legal system, the jury is the finder of fact. Those are the only questions the courts asks them to answer. They are not there to put themselves in the defendant’s shoes, anymore than they’re there to put themselves in the victim’s (or plaintiff’s) shoes.

Your spelling and grammar lead me to believe you’re posting from the UK, where it may very well be different.

HM

JEDIDIAH says:

Re: Jury is the finder of fact

> They are not there to put themselves in the defendant’s shoes

Sure they are. For any finding that requires the consideration of “intent”, the jury is there to judge that intent. That includes “reasonable man” type things where the intent being contemplated means the difference between a conviction for murder versus manslaughter.

Rhiadon (profile) says:

Re:

In the following sentences I will be making sweeping generalities to illustrate a point.

This seems to be exactly why FIJA hands out these pamphlets. People tend to be programmed to follow authority and instructions, regardless of how egregious those instructions may be (see the wiki on the Milgram Experiment). If the jurors are told by the authority in the room (The guy wearing the costume behind the big desk) that they have to decide based on the law, then they will do that.

Jury Nullification isn’t explicitly stated as a right anywhere that I’m aware of but neither is is prohibited. This seems apparent from the citation provided by an earlier poster. Do you have the right to breathe? (I know it’s a straw man, but it seems illustrative)

Anonymous Coward says:

average_joe ?

Is average_joe really a lawyer?
Most of his rants don’t seem very lawyerly. I would really really like to know what bar exame he passed.

However, jjury nullification is not really a constitutional right.

But even so, a content based restriction on speech must not only serve a compelling state interest, but must also be narrowly tailored employing the least restrictive means.
Even assuming that preventing the average juror from voting based on sympathy for the defendant, or having his decision swayed by ethical scruples, a harder question is whether preventing the juror from knowing the law is a legitimate state interest.

Under the double jeopardy clause, an acquittal by the jury is final and doesn’t provide the government an extra bit of the apple.

Would informing the jury about the double jeopardy clause and its moral responsibility be unprotected speech?
I think that there is a qualitative difference between telling the juror that he may nullify based on his own conscience, and providing truthful and nonmisleading information about
the settled interpretation of double jeopardy.

AR (profile) says:

Re:

I know, It bothers me too sometimes. The thing to keep in mind is that it is a government “of the people” and “by the people”, not for the people. All rights are inherently granted to the people, not to the government. The government is of and beholden to the people, not a separate entity to be held in opposition to the people. This, I believe, is part of both the declaration of independence and the constitution.

Gwiz (profile) says:

Re:

Everyone just seem to accept that jury nullification is a right (somehow somewhere) under US law because of a statement or two of personal opinion a couple of hundred years ago.

I really don’t know if it’s law or not. What I do feel is that jury nullification is a natural right. If I am in that deliberation room, then yes my conscience plays a huge part in my decision, because when it’s all said and done, I am the one who has live with myself and the choices I make.

Anonymous Coward says:

average_joe ?

Is average_joe really a lawyer?
Most of his rants don’t seem very lawyerly. I would really really like to know what bar exame he passed.

However, jjury nullification is not really a constitutional right.

But even so, a content based restriction on speech must not only serve a compelling state interest, but must also be narrowly tailored employing the least restrictive means.
Even assuming that preventing the average juror from voting based on sympathy for the defendant, or having his decision swayed by ethical scruples, a harder question is whether preventing the juror from knowing the law is a legitimate state interest.

Under the double jeopardy clause, an acquittal by the jury is final and doesn’t provide the government an extra bit of the apple.

Would informing the jury about the double jeopardy clause and its moral responsibility be unprotected speech?
I think that there is a qualitative difference between telling the juror that he may nullify based on his own conscience, and providing truthful and nonmisleading information about
the settled interpretation of double jeopardy.

Chris Rhodes (profile) says:

Re:

that does not mean someone today has a First Amendment right to stand outside the courthouse and promote it.

Yes, I can’t imagine how the right to free speech would cover something as out there as discussing important legal issues with other private citizens on public land in situations that cause neither hazard nor inconvenience nor cost to others. Surely, the first amendment was crafted to only allow people to discuss non-controversial issues, with themselves, and only in their own basements (but only if a judge approves of the content).

Way to set ’em straight, AJ.

Jon B. (profile) says:

I know I’m late to the party, but I came to disagree with Mike on this one too.

I agree on that such a group has their freedom of speech and they shouldn’t be outright punished, but the judge is well within his power to ban jurors from accepting such information.

It’s almost as if the judge is admitting that they want uninformed jurors who don’t know their own rights.

Jurors are SUPPOSED to be a little uninformed. If facts are kept out of evidence because they were obtained illegally, then it would violate a defendant’s rights to have the jury obtain that information outside the courtroom if they’re instructed not to do any independent research. Also, it could be the case that facts are kept out of evidence because they’re not facts. What information is on the papers? Citations from news media? If the media got something wrong there may be a REASON the judge chose not to let the jury hear it.

So agreed on the first amendment issue if it really is one, but there are lots of rights involved here.

Even if the pamphlet just “informs jurors of their rights” without adding any facts, that could be a problem. The judge is supposed to provide instructions to the jury, and those instructions are supposed to be correct and legal. If it’s discovered that jurors acted on ‘instructions’ they received outside the courtroom then that could be just as much a factor on appeal as if the judge had given the jury incorrect instructions.

So, yeah, it kinda pisses me off that there’s a group out there interfering with sitting jurors. Even though they may mean well, it’s inevitable that some murderer is going to get a new trial on appeal because of something like this.

AJ says:

Re:

I couldn’t find on this thread where anyone said it was a constitutional right, would you mind linking me to the post, I’m really trying to make since of everyones arguments.

I spent a little time reading up on Jury Nullification today and I came to the conclusion that their is no easy answer to this issue. Over the history of the U.S., there have been several decisions leaning both directions on this starting with the First Chief Justice of the US John Jay, and ending in 1997 with the Second Circuit.

IMHO
The court will never support Jury Nullification as it removes power from their hands and put’s it into the people’s. On the other side, if every citizen was completely educated on our court system, how it works, and what their rights were/were not, it would take forever to get anything done… and as a defendant, that would suck… . It would be like having a jury of all lawyers lol…

average_joe says:

Re:

For what it is worth,
I disagree with probably 98% of what you say BUT
I have tremendous respect for you because you

1: Have a name
2: Try to refrain from the pointless name calling that you are often subjected to.
3: Demonstrate a clear passion for your positions(ie: you are not just arguing to be a poop disturber).
4: Acknowledge when it is shown that you were mistaken.

I wish you well in your studies.

Sincere thanks. I enjoy being challenged in my beliefs. That’s what I love about this place–I get challenged left and right.

crade (profile) says:

Re:

Personally, I appreciate (some) of your posts, since you often actually seem to think of counterpoints rather than just throw out insults like the usual people who dissagree. However, you really have to expect to take some abuse for it. You know you are arguing a minority opinion here, you should know a great number of people don’t handle discussions that question their views very well and you are certain to run into some of them. Most of us have been on the unpopular side of a discussion before and complaining that everyone is picking on you probably isn’t going to help you any. You have to be prepared for some people to get nasty, stick to your defensible arguments, rethink any that are disproven and have a thick skin against irrelevent crap.

I don’t see how you can “not get it”, it’s a simple matter. If you want to argue atheism in Sunday School or creation at an atheism conference, you gotta be prepared for people to get angry and insult you. Trust me.

Gabriel Tane (profile) says:

Hey Joe...

Ok… you’re right…

RD, that was uncalled for in this thread… yes, Joe has been guilty of attacking in the past and was not guilty of doing so in the past. It would impress me to see an apology, but that’s between you and Joe.

Cowardly Anon… no need to pile on man. Not cool.

Now that I’m done playing Comment Police, let’s get back to you…

I’ve read back through the rest, and they’re all calling you out for crying victim. And they’re right to do so. You have, on more than one occasion (but not many, granted) gone completely off the deep end and just straight-out attacked people… doing nothing to forward the discussion, just to make attacks. To do that then, and now cry victim when someone does it to you is hypocrisy. And that’s what you’re being called out for.

Don’t want to be called out on it? Two choices: either A) avoid being a dick and actually have moral high-ground to yell from, or B) if someone is a dick to you, ignore it. Or be a dick back… just be consistent.

average_joe says:

Jury is the finder of fact

They are not there to put themselves in the defendant’s shoes, anymore than they’re there to put themselves in the victim’s (or plaintiff’s) shoes.

Agreed. I just did a workshop this past weekend on trial tactics, and we learned that as soon as you ask the jury to step into someone’s shoes, you can expect the other side to move for a mistrial. That’s a no-no.

The Groove Tiger (profile) says:

Re:

“Are you by chance wearing a tinfoil hat? Wow.”
Abuse!

“Not the best legal analysis by Mike, but that’s nothing new…”
Abuse!

“You’ve been drinking too much of Mike’s Kool-Aid. That stuff will rot your brain.”
Abuse!

“So says the spineless twit so insecure in his point of view that he can’t even make a screen name. Another mindless Mike lover with nothing of substance to say. Congrats!”
Abuse! (note: this was in response to a generic “you’re trolling” post. no verbal abuse there. disproportionate response anyone?)

“Suspect all you want. I suspect you’re a moron.”
Abuse!

“You strike me as one of the most vocal yet uniformed people I’ve ever met on the ‘net. Congrats!”
Abuse!

It’s also become obvious that your “I like to see both sides of the argument” gimmick was just something to pass yourself as a serious commenter, but nowadays you’re just ready to jump into the “Masnick Effect” bandwagon every time one of the trolls that “don’t add anything to the conversation” pop up, as long as they’re on your side πŸ˜€

Anyone watching your recent post history can see that.

Grow up, little child πŸ˜‰

Richard (profile) says:

Jury is the finder of fact

You are going beyond what I actually said.

Your (US) jury system is descended from our (UK) one and as such the jury embodies the principle of “trial by one’s peers”.
Of course it is not up to the trial lawyers to explicitly appeal to “put yourself in the defendant’s shoes” but I would have thought that a juror who didn’t do that (and maybe in the plaintiff/victim’s shoes too) would not be human.

If they are not there for that purpose then I would like to know what they are for – since I can see no reason why they should be any better at determining matters of fact than a judge.

Anonymous Coward says:

Re:

unfortunately while I usually disagree with Average_Joe, this time I have to agree. The jury’s responsibility is to ignore personal bias and to vote based on the validity and facts of the case. Their own personal views and conscience should never come into play.

On another note, allowing hand-outs to a juror prior to a trial allows for discreet communication between the one handing out the documents and the juror. While in this case, it may have been benign, however there are many cases that this could be used to sway or threaten the jury.

Richard (profile) says:

Jury is the finder of fact

Funny. That’s not what all the legal textbooks and court opinions say.

They would say that wouldn’t they.

That may be the way the legal establishment likes to view the matter – but although it it is the reason why they were put there in the first place (because originally juries had an investigative role – there being no police at the time) it isn’t the reason we have them now. If we simply wanted to establish facts then a jury isn’t the institution that we would invent. The reason we have juries it to keep the legal system connected to society. Finding facts is the function of the jury but not their purpose.

Anonymous Coward says:

Re:

True the 1st amendment may protect the right of expression, however this can endanger your right to a fair trial.

As I understand it, during jury selection you are to be asked if anyone has approached you in effort to sway your vote. If there’s a group of people outside the only entrance to the court handing out documentation telling you how to vote then you can only honestly answer that you have. At this point you would promptly be removed from your responsibility as a juror.

Chris in Utah (profile) says:

Re:

:Supposed to: is a moral, not to mention subjective argument.

Informing people of their rights “could” (again moral) be. If blank could blank.

Inevitable? try again. The article I posted above was from 2009 and he was handing pamplets out 18 months prior and threatended. I impact on murder cases or hearing about nullification of a manslaughter law?

Yeah, these arguments are becoming inflated with the heinous crime vs moral outrage with a splash of forgetting history.

Most of the arguments can be nicely summed into explaining why your rights are fairy tails the others are boiled to libertarians’ favorite friend… appealing to authority trumps staw mans.

RD says:

Re:

“Don’t let RD get you down. When he gets off his meds, he gets all cranky. His handlers will come back and make him take his pills, and then he will stop posting again for a while.”

Well, since all I have ever taken is ibuprophen and the occasional cold meds, I cant really be considered to have been ON meds to begin with. Weak. Try a better insult next time.

“He is an angry, angry man.”

Call it whatever you want, but when it comes to those who support the removal of my constitutional rights and the freedoms that were so hard-won for this country, I will pull the trigger myself. And you should too if you have any real principles, rather than let everyone just roll over you and strip your rights away. The constitution itself (which AJ routinely ignores) says very clearly that we have the RIGHT to do this when needed.

RD says:

Re:

“Perhaps you want to tell people like RD to put a sock in it as well. It’s always the same few instigators that feel they have to attack the opposition unfairly.”

Wow really? I’m BARELY on here and MAYBE post once every week or two, and I’m an “instigator” now?? Awesome! I have some pretty AMAZING pull then, dont I? Barely any comments and I am part of a massive attack force!

Might want to look at the record again on just who is slinging more mud (and FUD) around here. I’m sure you’ll see others (AC, AJ, etc) names up there a LOT (like, an order of magnitude) more than mine. But thanks for the props!

Hugh Mann (profile) says:

Re:

This is a good point. The jurors don’t know what else is going on. Setencing, for instance. The judge takes care of sentencing, and will take into account the mitigating factors that may cause a juror to want to vote “not guilty”.

My own prefernce is to generally (not in every case) see these things handled in sentencing. If you steal a loaf of bread to feed your kids, I still think it’s appropriate to convict you of the crime of theft, but the sentence can take into account the fact that you had exigent circumstances and let you off easy.

HM

RD says:

Re:

“What I find amazing in this entire debate is the idea that because a founding father SAID SOMETHING about jury nullification, that the concept is the law or part of the constitution.”

Maybe, maybe not. But AJ asked for a citation on “the founding fathers were for this” (which, remember, he was using as his wave-away-the-argument-with-your-hand method of trying to discredit the commenter) and so I gave it to him. The fact that he is intellectually incapable of accepting rebuke or correction, or even basic “prove it” and you prove it points, is a different topic entirely. That the will then proceed to criticize, name call and use his “I’m in law school” as an attempt to further silence dissent (since he never admits when he is corrected or wrong) is what draws so much ire. Hypocrisy deserves scorn.

Hugh Mann (profile) says:

Jury is the finder of fact

And, actually, there are those who think “professional” jurors (e.g., a panel of judges) would be better than 12-person panel of local residents annoyed because they couldn’t get out of jury duty.

I do see your point better now, thanks for the clarification. However, I don’t view them so much as being a sort of proxy for the defendant as I see them as a bunch of formal witnesses to make sure the state (as embodied by the judge) knows it’s being watched. Nothing even close to be so personal as to inject some sort of sympathy/empathy/understanding of one side or the other. I do agree that, as human beings, their varied experiences and characters will come into play and color their respective views of the evidence in many ways.

In any case, as a formal element of the US judicial system, the jury is the finder of fact. Questions of fact go to the jury. The judge handles questions of law. But, as you’ve pointed out, as with any human activity, these roles are fulfilled by people who can’t leave themselves out on the courthouse steps and act a some sort of cold, completely-objective machine. That’s just not how we’re wired.

HM

RD says:

And finally...

Well, I sure seem to have stirred up a shit storm in this article. While I probably shouldnt have gone with the FOAD and all that (just frustration that this guy keeps spreading FUD all over and then disdains anyone who calls him on it, all the while going “you just suck Mike’s balls” or “I’m a victim!” all the time) and I apologize for jumping the gun with that last bit, I do think I’ll sign off for today by pointing one thing out.

This thread now has over 170 comments. Lots of on-topic points about jury nullification and judicial responsibility, first amendment issues, and a huge discussion about the merits (or lack of) of name-calling, finger pointing, calling people out on their past comments and attitudes, and in general the acceptability and personal responsibility of what you say online.

I’d say that, overall, the discussion WAS moved forward, and in several areas. Maybe not with the best start, and maybe not in the way people would usually expect, but we sure did DISCUSS a lot today, didnt we?

Just take a moment to ponder that idea in context.

Anonymous Coward says:

Re:

Thanks for the replies, all. I guess it just struck me that jury nullification is a misleading term to regular folk – it sounds like the examples I listed above rather than the jury nullifying the laws under which the charges or suits are brought.

Also that juries as functionaries are held in esteem…except when they aren’t, ha. Well, that judges have the last word, that is to say.

Rhiadon (profile) says:

Risks

It seems like there is a vein running through many of the comments that Jury Nullification runs the risk of nullifying murder laws. While I think this *is* technically a risk, it seems very improbably that a jury of 12 rational human beings would think that laws prohibiting taking the life of another human being are unjust and must be nullified. Same with rape or any other natural crime that possesses a clear victim upon whom harm has been committed.

Who knows though. I might be able to conceive of a few situation where this could happen involving certain radical sets of people, but what is the probability that 12 of these people would get on the same jury? Probably low?

From what I understand, FIJA seems to be working to help prevent convictions for crimes that are victimless and therefore unjust. Thinks like prohibition of alcohol and drugs. There goals may be more general than that, but that seems to be the basic direction.

non average joe says:

lack of substance

seriously am i the only one who sees this
average joe you asked for citation
he provided citation and since then you have only whined cause he was mean to you hahaha
are you ever gonna respond with conversation as you called it
cause all i have seen is bitching

“In 1972 the D.C. Circuit Court of Appeals held that the trial jury has an “…unreviewable and irreversible power…to acquit in disregard of the instruction on the law given by the trial judge.””

ok so we do have the power upheld by a appeals court

ok so we have the power and we have had this debate already and gotten from it

“in 1670 Chief Justice Sir John Vaughn issued an historically important ruling: that jurors could not be punished for their verdicts. This case is considered a significant milestone in the history of jury nullification.”

ok and we cant be punished for it

we have the power and cant be punished for it therefor it is an implied right and cannot be interpreted differently
mr average joe
i didnt call you any names (i know your sensitive) and i didnt trash you i just want to know are you going to actually conversate in this conversation or continue to “tell mom” but never actually answer the questions/debate

put more simply i believe the people here have more than illustrated (read my quotes above) that it is an implied right in america that people have the right to juror in line with thier own conscience
for as one put it “i have to live with my decision not you”

if the law said to give the death penalty to anyone who jaywalked would you not as a juror on that case feel compelled to ignore the law that instructs you to remove from a person, “their life” based on frivolous law

the following supercedes all law and therefor is grounds for classifying the subject of our conversation as “an irreversible right”

That whenever any Form of Government becomes destructive of [protecting life, liberty and the pursuit of happiness–the essential rights], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Our government itself gives us the authority and responsibility, not to question its authority, but to check its ability to deprive us of our own.

and no i cant knowingly cause for the removal of life liberty or persuit of happiness from any citizen of america without first considering its legal standing with all laws
not just those outlined by that judge at that time in that case

doing so would harm my conscience in an irreversible manner
noone has the right to pick people at random and force them to knowingly act in detriment of their moral belief

non average joe says:

lack of substance

the only reason we are able to take these rights from people in the first place is to protect life and for providing safety therof so it is each jurors responsibility to examine
at least in my interpretation (interpretation is a big part of todays law)

“if the punishment of the law more dangerously removes safety from the defendant or the crime of the defendant more dangerously removes safety from the public

Anonymous Coward says:

Re:

The function of a jury is not to uphold the standards of a court, it to show agreement with how the system is being conducted, it is not about the law is about how the law works, it is about trust, no matter what you want others to believe it is not a about an old judge or agents of the law is about how outside people see things and have the tools to stop abuse if they find them and this is why jury nullification is a good thing, the law agents need to work harder to convince others they are useful and productive and deserve the power invested in them by the people.

Anonymous Coward says:

Re: Re:

While the concept of jury nullification is new to me, I believe it should be the responsibility of the court system to inform the jury of their responsibility and of the tools available to accomplish that responsibility. That being said, I have to include that I have yet to sit on a jury and do not know if this information is provided. However knowing our legal system and government, along with testament from the choir here on Techdirt, I’m pretty sure this information is not provided.

However while the government may not offer up this information willingly, I still believe outside a court house is a bad idea as a distribution location for this information from an outside entity for the reasons I listed previously. A better location may be in the high schools or similar localities that are supposed to inform the public of the material on the topic.

freak (profile) says:

Re:

Just a little pet peeve here, if you don’t mind?

Coffee is required to be served that hot, by nature of coffee. Would you like me to go over the chemistry which describes the aromatic oils that create the taste of coffee? The aromatic oils have to be vaporizing as you drink it, you see. The best is actually at 200 degrees, not 180, which McDonalds keeps it at. And even then, 180 degrees in the pot is made so that at the cup, it will be about 150 after stirring and everything.
Even the ‘National Coffee Association of U.S.A.’ says that coffee should be maintained at 180 degrees.

Second, in reaction to AA above, McD’s actually had those warning labels on the coffee cups BEFORE this lawsuit, and the jury had to specifically decide that the warning labels were not required. Having warning labels is just a good way to get rid of lawsuits, even if no law requires them.

Third, yes, these lawsuits are valid. Coffee and other hot foods which can cause burns should have, as McD’s puts it, “Superior handling systems”, by which they mean the cup it was in was at fault, not the temperature of the coffee.

Fourth, do you know how many dozens of these lawsuits go through each year, not only to McD’s, but also to other restaurants like Tim Horton’s, Burger King or Starbucks? If you said that each of them loses millions a year due to ‘hot coffee’ type lawsuits, you’d be right. Liebeck just got a lot of press, that’s all.

JEDIDIAH says:

Re: corporate apologists

> Just a little pet peeve here, if you don’t mind?

Yes. Because reality is a pet peeve.

McDonalds keep their coffee hotter than anyone else and NO ONE that cares about the actual product treat it like McDonalds does including overheating it. Starbucks in particular is a good example here. You could bathe yourself in their stuff without running the same risks you run with McCoffee.

The jury in question probably responded they way they did due to the fact that McDonalds response to a recurring problem was not to change their approach or to inform their customers but to suppress any and all information about the situation.

Although McDonalds sells crap in general regardless.

Anonymous Coward says:

Jury is the finder of fact

Why do we have juries?
Is not to just have fact finders is to balance the courts, is not about court rules, is about societies rules, the court system is bound by a jury that can dismiss all their arguments if they don’t think it is fair and just, they need to show everyone that the court is a serious place not threaten others and make believe they can do anything they want, judges and prosecutors are not there to get high on power, they are there to do a job and if that job is not being correctly done the people have the power to actually tell them in no uncertain terms to f. off.

non average joe says:

lack of substance

the law agents need to work harder to convince others they are useful and productive and deserve the power invested in them by the people.

well put after all they are our government we own them
but at the same time we are not their people they do not own us they work for us providing services to american people

shit if someone overcharged me for fixing my roof and it still leaked i would sue to get my money back

Dark Helmet (profile) says:

Re:

AJ, do yourself a favor on this site and in life and be wary of lumping large groups of people in with one another (like a class action, ironically). I read through this entire thread, hearing you over and over again decry the universal abuse you suffer, and then I thought back not only to all the interesting discussions we’ve had (I would say nearly universally free of abuse), but those I’ve witnessed you have with others.

Victim cards are flimsy. RD acted the fool at the end of his post. Most of the people that reply to you, myself included, do not.

Nor do we appreciate your overgeneralizations….

JEDIDIAH says:

Vor Dire

No.

What endangers my right to a fail trial is the fact that both sides of the case can cherry pick jurors. This process does far more harm to fairness and justice than any pamphlet that some nutter might be passing out on the courthouse steps.

This process ensures that no one that sits on the jury will be able to sort out whatever BS is thrown at them.

Anonymous Coward says:

Re: Vor Dire

agreed, but do you have an idea on how to improve the system? Seeing as to how the previous system was much worse in that you have a nutter in the judges seat that had ultimate and incontestable say on whether you were guilty or not, even if his verdict was based entirely on the fact that you did something he didn’t like (such as sleep with his daughter)

Fentex says:

Jurors are not supposed to “vote with their conscience,” and it is incorrect to state that that is their right. They are supposed to vote based on the facts in evidence and the law. To promote otherwise would certainly “harm the integrity of the jury system.” That’s all it would do. Pretty standard stuff.

This is mistaken, and I expect it’s exactly the sort of error the pamphlets in question are addressing.

Many poeple don’t know, and authorities would like them ot be unaware of, a juries responsibility ot judge not just the facts of a case but the law under which it is tried.

A jury is not just a group of people picked to decide the facts and therefore guilt or innocence. They are also a representative selection of citizens who are expected to decide if the law being used is just and if it should be enforced on their behalf.

Because of this and the widespread belief that the ‘War On Drugs’ is stupid law it has become a common tactic for defendants to try and tell juries they can agree that a defendant broke drug laws but also not convict defendants on the basis of the law being an ass.

And because authority fears citizens resisting the imposition of laws like this authority is increasingly trying to hide jurys own authority from them.

It is now illegal in several U.S states for officers of the court to tell juries they can nullify laws.

Authority would like, but hasn’t yet found the courage and way to remove this authority from juries.

Knowing that juries were citizens final word on the authority of the state to impose it’s law and will (beside the individual facts of a case) is what lead Thomas Jefferson to say;

“I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

Anonymous Coward says:

Anarchy

“If juries were there only to decide simple matters of fact and do as they are told about the law “

This is, by far, the overwhelmingly accepted view of the role of juries among people who actually deal with juries.

And yet, such people still think juries perform a useful service.

On the contrary, if juries were to impose their own view of what the law is, then judicial and legislative elections would be a pointless waste of time and money and we might as well abolish them.

ChimpBush McHitlerBurton says:

Suppose...

Ok, I don’t know why this jury nullification thing is so hard for the trolls and the conservatives to grok. So, let’s use a little analogy:

Imagine that the US Government pushed through a law that provided the death penalty for petty theft, let’s say a loaf of bread.

So, let’s also say that we head into a depression, and there is suffering and hunger everywhere. You are called into jury duty, and the case is the State vs. a young mother of four who stole a loaf of bread to feed these starving children.

Now, you are instructed by the court that it is not your job to sympathize with the defendant; your job is simply to hear the testimony of the arresting officer, and determine if the defendant broke the law.

Knowing that she would be put to death for this crime, which you are certain she committed… would you find for the prosecution, or for the defendant?

If you would find for the defendant, you are representative of the kind of person that jury nullification supports: Those who believe that a tyrannical government, via their court system, can not pass laws that are unduly harsh. Well, they can, but it won’t do any good if they can’t convict people…

(One could argue that if you don’t like the law, get it changed by going through proper channels. Our predecessors realized that when dealing with tyranny, this might not be a viable option, so they allowed for justice to be meted out at the jury level, to keep kangaroo courts in check.)

If you would find for the prosecution, you are a heartless moron, and should be charged under penalty of death for the crimes of gross stupidity and abject dispatriotism. (yeah, I made up that word; sue me)

Let’s just hope your jury isn’t made up of people like you.

CBMHB

Anonymous Coward says:

avg. Joe still barking out of butt

“Joe, you are entitled to your own opinion but not your own set of facts. And you were indeed lazy. It’s called a browser. Open it and read the Constitution. Thanks.

Can you point me to the exact part you think I missed?”

Well, given your lack of understanding that you have shown to date, I’d say start with, well, ALL of it.

Rekrul says:

Re:

Considering the concept of Jury Nullification and notifcation to Jurrors has gone all the way to the SCOTUS, and the ruling was that it does not need to be mentioned or even acknowledged, shoots that completely in the water (sorry, don’t know the actual case, but have read it previously)

Did the ruling only say that it didn’t have to be acknowledged, or did it blatantly state that judges can actively prevent a jury from knowing about it?

Rekrul says:

Re:

Even if the pamphlet just “informs jurors of their rights” without adding any facts, that could be a problem. The judge is supposed to provide instructions to the jury, and those instructions are supposed to be correct and legal.

Except that every judge today blatantly LIES to the jury by telling them that they must render a verdict according to the law. This is a lie because even though it is never mentioned to the jury and even though the judge and the prosecutor will do everything in their power to prevent juries from knowing about it, jury nullification is still a valid jury power in the US. A jury has the power to disregard the law if they feel that convicting someone under it would be unjust.

Eldakka says:

Re:

But you also have the opposite effect, of other circumstances leading to an unreasonable sentence.

If in a sate with a 3 strikes law, and convicting someone who was starving of stealing a loaf of bread would result in them being having a mandatory 15 year sentence because of 2 previous offenses, I would like to know this. This is a case where I’d support jury nullification.

Pixelation says:

Re:

Excuse me for being simple. To me it’s frivolous, though perhaps not to the lawyers and courts. Why do I say that? Dumb ass puts hot coffee between her legs, spills it and blames McDonalds. Hey dumb ass, coffee is HOT be careful. Next time she is there she should walk behind the counter and stick her hand in the fryer. That should net her a fortune.

Mike Masnick (profile) says:

Re:

Your response is really disappointing. Rather than promote a positive discussion, you are supporting those who are simply throwing out insults. I’m not surprised by this, but I am disappointed.

I was not supporting those throwing out insults. Just pointing out that the playing victim act was childish.

Look, it’s the internet. Some people are obnoxious. You included at times. Pretending that this is something new and you’re some fragile flower who can’t take it, is pretty funny.

And, I should note that one of the guys supporting you was the one who started the “FOAD” trend on this site as he used to use that comment all the time when posting under one of his many previous characters.

I agree that throwing out insults is not a great way to argue. But which had a bigger impact on this thread? His one post with tons of content and a silly insult at the bottom, or you then hijacking the thread with half a dozen “oh woe is me!!!!” comments about how you can’t take RD blowing his lid at you for not doing basic research.

average_joe says:

Here’s a little caselaw from the Second Circuit. It’s a really long quote, but I think it’s very instructive on the issue of whether there’s a right to jury nullification:

We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror’s oath to apply the law as instructed by the court-in the words of the standard oath administered to jurors in the federal courts, to ?render a true verdict according to the law and the evidence.? Federal Judicial Center, Benchbook for U.S. District Court Judges 225 (4th ed. 1996) (emphasis supplied) We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

***

More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, ?introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.? U.S. ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev’d on other grounds, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). This is so because, as Judge Hand explained, ?[t]he individual can forfeit his liberty-to say nothing of his life-only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came…. [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove….? Id. at 775-76.

***

But as the quotation from the Supreme Court’s opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to ?nullify? or exercise a power of lenity is just that-a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. It is true that nullification has a long history in the Anglo-American legal system, see Dougherty, 473 F.2d at 1130-33, and that the federal courts have long noted the de facto power of a jury to render general verdicts ?in the teeth of both law and facts,? Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920); see, e.g., United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir.1983). However, at least since the Supreme Court’s decision in Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, ?it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them?), courts have consistently recognized that jurors have no right to nullify. See Gordan, supra, at 272, 277 (noting that, with Sparf, the Supreme Court ?fixed the law where Lord Mansfield had left it? in King v. Shipley (?The Dean of St. Asaph’s Case?), 4 Doug. 73 (K.B. 1784), in which Mansfield had written that jurors have the power, but not the right, to decide the law); Howe, supra, at 589 (referring to Sparf as ?the Supreme Court’s final and authoritative denial of the [jury’s] right? to serve as judges of the law); see, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir.1988) (?[J]ury nullification is just a power, not also a right ….?). As a panel of the Court of Appeals for the District of Columbia Circuit-composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg-explained:

A jury has no more ?right? to find a ?guilty? defendant ?not guilty? than it has to find a ?not guilty? defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, *616 a denial of due process and constitute an exercise of erroneously seized power.

United States v. Washington, 705 F.2d 489, 494 (D.C.Cir.1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror’s sworn duty to ?apply the law as interpreted by the court.? United States v. Boardman, 419 F.2d 110, 116 (1st Cir.1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).

***

Inasmuch as no juror has a right to engage in nullification-and, on the contrary, it is a violation of a juror’s sworn duty to follow the law as instructed by the court-trial courts have the duty to forestall or prevent such conduct, whether by firm instruction or admonition or, where it does not interfere with guaranteed rights or the need to protect the secrecy of jury deliberations, see infra Section II.C, by dismissal of an offending juror from the venire or the jury. If it is true that the jury’s ?prerogative of lenity,? Dougherty, 473 F.2d at 1133, introduces ?a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions,? Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law. Although nullification may sometimes succeed-because, among other things, it does not come to the attention of a presiding judge before the completion of a jury’s work, and jurors are not answerable for nullification after the verdict has been reached-it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath. This is true regardless of the juror’s motivation for ?nullification,? including race, ethnicity or similar considerations. A federal judge, whose own oath of office requires the judge to ?faithfully and impartially discharge and perform all the duties incumbent upon [the judge] … under the Constitution and laws of the United States,? 28 U.S.C. ? 453 (1994), may not ignore colorable claims that a juror is acting on the basis of such improper considerations.

Accordingly, every day in courtrooms across the length and breadth of this country, jurors are dismissed from the venire ?for cause? precisely because they are unwilling or unable to follow the applicable law.10 Indeed, *617 one of the principal purposes of voir dire is to ensure that the jurors ultimately selected for service are unbiased and willing and able to apply the law as instructed by the court to the evidence presented by the parties.

So also, a presiding judge possesses both the responsibility and the authority to dismiss a juror whose refusal or unwillingness to follow the applicable law becomes known to the judge during the course of trial. Rule 24(c) of the Federal Rules of Criminal Procedure provides for the substitution of alternates for ?jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.? Surely a juror is ?unable or disqualified,? for purposes of this rule, who is intent on nullifying the applicable law and thereby violating his oath to ?render a true verdict according to the law and the evidence.?

Similarly, we conclude that a juror who is determined to ignore his duty, who refuses to follow the court’s instructions on the law and who thus threatens to ?undermine[ ] the impartial determination of justice based on law,? Krzyske, 836 F.2d at 1021, is subject to dismissal during the course of deliberations under Rule 23(b). This conclusion reinforces the court’s inherent authority to conduct inquiries in response to reports of improper juror conduct and to determine whether a juror is unwilling to carry out his duties faithfully and impartially. The rule we adopt applies with equal force whether the juror’s refusal to follow the court’s instructions results from a desire to ?nullify? the applicable law or, for example, as in the cases described above, see supra pp. 613-14, from a perceived physical threat or from a relationship with one of the parties.

U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997).

Karl (profile) says:

Legality of "jury nullification"

In case anyone is curious about what the law actually says about jury nullification:

It is settled that juries do have this right. However, it is also settled that there is no requirement by the court to instruct juries on this right. In fact, the court has the right to prevent counsel from even mentioning jury nullification.

The theory, I guess, is that this is a kind of “balance” between the right of juries to nullify bad laws, and the anarchy that would result if juries could just disregard the law altogether.

The most relevant case is U.S. v. Moylan:

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. […]

But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.

But the judge’s right to prevent knowledge about nullification, ends at the doors to the courtroom. Juries absolutely have the right of nullification (even if they can be prevented from knowing about it in court). So the notion that this is a “compelling interest,” which justifies stepping all over the First Amendment, is pure bunkum.

average_joe says:

More importantly for the subject of this article, there is no right for jury nullification in the Ninth Circuit (the judge and courthouse in this article are in the Ninth Circuit). So anyone standing in front of the courthouse saying otherwise is incorrect. As explained by the court:

The jury’s function is to find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged.? Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994). The jury is not to consider the consequences of its verdict, and should be instructed to reach its verdict without regard to what sentence might be imposed. Id. ?Jury nullification? occurs when the jury acquits the defendant even though the government has proven its case beyond a reasonable doubt. United States v. Powell, 955 F.2d 1206, 1212-13 (9th Cir.1991). Defendants are not entitled to jury nullification instructions; ?anarchy would result from instructing the jury that it may ignore the requirements of the law.? United States v. Powell, 955 F.2d at 1213 (citation omitted). Although the jury has the power of nullification, the jury has no right to engage in nullification. Standefer v. United States, 447 U.S. 10, 22, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980).

Patterson v. Runnels, 288 F. Supp. 2d 1092, 1099-100 (C.D. Cal. 2003).

harbingerofdoom (profile) says:

avg. Joe still barking out of butt

im having some difficulty finding it, but look up “jury nullification: the top secret constitutional right” by James Duane.

a law professor that goes over that specific information.

i have a copy of it on my computer, but cant seem to find it online. the main idea is basically that jury nullification has its roots in the 6th amendment and the double jeopardy clause then goes about backing up the position with case law.
it also does cover dissenting opinions about the validity of jury nullification.

for anyone else that doesnt really know what jury nullification is, its a great read and explains a lot even if you may not agree with his position.

average_joe says:

Legality of "jury nullification"

I should also mention: All of the case law from the past 100 years has come from circuit courts, or state Supreme Courts. As far as I know, the U.S. Supreme Court has yet to weigh in on the matter.

So, it’s quite a contentious issue.

Is there a right to nullification in any state or circuit? If not, how is it “contentious”?

average_joe says:

Legality of "jury nullification"

In case anyone is curious about what the law actually says about jury nullification: It is settled that juries do have this right. However, it is also settled that there is no requirement by the court to instruct juries on this right. In fact, the court has the right to prevent counsel from even mentioning jury nullification.

It is NOT settled that juries have this right. On the contrary, it’s settled that they don’t. If there was such a right, then the court wouldn’t be able to withhold that fact from a jury. Can you find one court that says jurors have this “right”?

The theory, I guess, is that this is a kind of “balance” between the right of juries to nullify bad laws, and the anarchy that would result if juries could just disregard the law altogether.

There is no such right, so that’s not what’s being balanced.

The most relevant case is U.S. v. Moylan: ***

You are misreading the court in Moylan. They don’t say that there is a “right” to jury nullification, they only say that there is the “power.” A power is not a right. Notice how in the quote you provided, in the first paragraph the court only speaks of “power” and not “right.” The wikipedia page you’re quoting is incorrect.

But the judge’s right to prevent knowledge about nullification, ends at the doors to the courtroom. Juries absolutely have the right of nullification (even if they can be prevented from knowing about it in court). So the notion that this is a “compelling interest,” which justifies stepping all over the First Amendment, is pure bunkum.

It is precisely because there is a compelling interest that this carries past the courtroom’s doors. This compelling interest is why the judge’s order does not violate the First Amendment.

average_joe says:

Re:

I was not supporting those throwing out insults. Just pointing out that the playing victim act was childish.

Look, it’s the internet. Some people are obnoxious. You included at times. Pretending that this is something new and you’re some fragile flower who can’t take it, is pretty funny.

And, I should note that one of the guys supporting you was the one who started the “FOAD” trend on this site as he used to use that comment all the time when posting under one of his many previous characters.

I agree that throwing out insults is not a great way to argue. But which had a bigger impact on this thread? His one post with tons of content and a silly insult at the bottom, or you then hijacking the thread with half a dozen “oh woe is me!!!!” comments about how you can’t take RD blowing his lid at you for not doing basic research.

You’re right, it is the internet, and rather than respond to the childish insults I receive, from now on, I’ll try and just ignore them.

He was right about the Founding Fathers. I didn’t know that stuff, and I’m glad to now know it. I’ve expressed my appreciation for this now three times in this thread.

After doing some research this evening, though, turns out I’m right about there being no right to jury nullification. Do you care to admit that your claim that the people in front of the courthouse were simply “informing a juror of their rights as a juror” is wrong as a matter of law? I doubt it.

Anonymous Coward says:

Re:

That is not what it says there.

It says jury nullification is legal, but the jury is not entitled to jury nullification instructions meaning they must know they have that right before hand since the courts don’t like that law and are less likely to have it mentioned even going so far as to try and actively prevent it.

What kind of student of the law make such a gross misrepresentation?

harbingerofdoom (profile) says:

Re:

i believe shannon is not applicable as it limits specific information which is sentencing. as such it may limit nullification when someone is seeking to convict on what they may perceive as either greater or lesser charges, but does nothing when the nullification results in acquittal.

as for powell, strictly adhered to, it only discusses giving a jury nullification instructions but does nothing to either remove the ability for a jury to nullify, nor enforce that the concept of nullification is valid.

and stadefer? you are going to have to explain how that has anything to do with nullification cause i guess im just not getting it… my not ever having gone to law school or the fact that im not a lawyer might have something to do with why im not getting it….

…but i kinda doubt it…

Mike Masnick (profile) says:

Re:

Do you care to admit that your claim that the people in front of the courthouse were simply “informing a juror of their rights as a juror” is wrong as a matter of law? I doubt it.

I do not believe it was wrong. I believe it remains accurate, and that the banning of such pamphlets is clearly prior restraint. There is no compelling interest in stopping people from their right to free speech.

Once again we see that you seem to consider the First Amendment some sort of “lesser” amendment to the laws you prefer.

average_joe says:

Legality of "jury nullification"

I should also mention: All of the case law from the past 100 years has come from circuit courts, or state Supreme Courts. As far as I know, the U.S. Supreme Court has yet to weigh in on the matter. So, it’s quite a contentious issue.

As to your claim that the Supreme Court has not weighed in on the matter, that’s not correct either. I’ve found Supreme Court language that unequivocally shows there is no right to nullification.

As the Court said in Dunn v. U.S., 284 U.S. 390 (1932):

The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.

In other words, the U.S. Supreme Court explicitly says that there is no right for a jury to exercise its power of nullification.

The Court repeated the same in Standefer v. U.S., 447 U.S. 10 (1980):

The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of ?their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.”

Do not misconstrue the use of the word “permit” in that quote. In context, the Court is pointing out that nothing can stop it, not that it is a right per se.

Again, you shouldn’t rely on wikipedia to make your legal arguments.

Anonymous Coward says:

First Amendment scrutiny


It is precisely because there is a compelling interest that this carries past the courtroom’s doors.

This compelling interest is why the judge’s order
does not violate the First Amendment.

Please identify the compelling state interest.

You’re flatly wrong that aeven a compelling state interest by itself ttrumps the First Amendment. First, we are not talking about a historically unprotected category of speech obscenity, fighting words, or incitement to unlawful action.

We are talking about a prior restraint on truthful information on a matter of public concern.

What compelling interest is served by the judge’s order?

Protecting the trial against jury tampering is of course a compelling state interest, but under the strict scrutiny framework, the restriction upon speech must not only serve a compelling interest but must also be narrowly tailored employing the least restrictive means.

If the jury is in its right to acquit based on its own moral determination, it’s not tenable to hold that informing the juror about the law of nullification is tampering.

Please explain Mr. Average lawyer Joe how the order is narrowly tailored employing the least restrictive means.

If you had provided this answer in a bar exameyou are unfit for the bar.

Second, a prior restraint on speech is suspect and is not constitutional just because the state interest is compelling.

In the court’s dicta the interest allowing prior restraint is often
referred to one of the highest order.

There are a few cases from the lower court’s having upheld prior restraint on speech, United States v. Progressive (suppression of the nuclear bomb formula) and an order forbidding the CNN from broadcasting the Noriega tapes, but prior restraint on

truthful and publicly available information is seldomely found constitutional.

average_joe says:

Re:

I do not believe it was wrong. I believe it remains accurate, and that the banning of such pamphlets is clearly prior restraint. There is no compelling interest in stopping people from their right to free speech.

Once again we see that you seem to consider the First Amendment some sort of “lesser” amendment to the laws you prefer.

I wasn’t referring to their right to say it, I was referring to what they were saying. There is no right for jury nullification, so those people are not “informing a juror of their rights as a juror” as you claimed. Whether or not it’s prior restraint is debatable, but that’s a different matter. If you change your statement to “informing a juror of their POWER as a juror,” I’d agree with you. But it’s not a right.

average_joe says:

Re:

That is not what it says there.

It says jury nullification is legal, but the jury is not entitled to jury nullification instructions meaning they must know they have that right before hand since the courts don’t like that law and are less likely to have it mentioned even going so far as to try and actively prevent it.

It says: “Although the jury has the power of nullification, the jury has no right to engage in nullification.” If you have no right to do something, but you do it anyway, then are you not doing something legal. In other words, jury nullification is not legal.

What kind of student of the law make such a gross misrepresentation?

I’m the kind of law student that gets very good marks on exams and that judges entrust to do research for them. I made no “gross misrepresentation” that I can see. If I’m wrong, I’ll gladly admit it, but I don’t see it.

Anonymous Coward says:

Re:

There is no right for jury nullification, so those people are not “informing a juror of their rights as a juror” as you claimed

It’s more than a right, it’s an obligation in some cases. Sometimes the law ignores basic human rights or even tries to usurp them, yet they remain, and a human being has the right and obligation to be fair and do what is right. Lawyers and judges can’t change that.

Sometimes AJ sounds like he thinks he’s studying to be G*d rather than just another lawyer.

average_joe says:

Re:

It’s more than a right, it’s an obligation in some cases. Sometimes the law ignores basic human rights or even tries to usurp them, yet they remain, and a human being has the right and obligation to be fair and do what is right. Lawyers and judges can’t change that.

This is just simply not true. There is without question no right to nullification. And as the quotes I provided demonstrate, there is in fact the affirmative duty not to nullify.

Sometimes AJ sounds like he thinks he’s studying to be G*d rather than just another lawyer.

I’m not really sure how you think my pointing out what the law in fact actually is makes me sound like God. I’m simply reciting facts.

harbingerofdoom (profile) says:

First Amendment scrutiny

okay… im getting a bit tired of ignoring your blatant twisting of logic here.

you can say all you want that the jury does not have a right to nullification, they only have the power…. but the statement in and of itself is a contradiction in terms.

additionally the fact that the courts have said the jury does, in fact, have the power of nullification gives them a de facto right regardless of if you want to admit that as a fact or not.

the fact that the courts have said that juries do have the power of nullification trumps the particular use of compelling interest when it cannot be accurately stated (no matter how you try to twist it) that nullification is not something a jury is allowed to do.

average_joe says:

Re:

Not at all. Each sentence from that quote comes from a different case, and each sentence is an accurate statement of that specific point from that case. That’s how you craft legal arguments. You build from different points in different cases. There’s nothing “twisting” about it as nothing is quoted out of context and nothing is purported to stand for something it doesn’t.

average_joe says:

First Amendment scrutiny

Having the power to do something does not mean having the de facto right. There simply is no right. There is no contradiction. The word “right” has a very specific meaning. You’re twisting that meaning, not me, and not the courts.

The fact that juries can do this and nobody can stop them does not negate the compelling interest test. Nor is it accurate to say that the jury is “allowed to do” it. Being able to do something is different from being allowed to do it.

Anonymous Coward says:


Snore. It’s not truthful information since there’s no right to nullification. There is only a power. For reasons why nullification is a compelling state
interest, see the really long quote I posted from the Second Circuit.

I don’t dispute that the courts have stated that jury nullification is undesirable, and that judges should prevent it from occuring.

However, there is a difference between controlling what counsel may tell the jury inin court and controlling third parties’ exercise of free speech outside the court room.

If the Pamphlets only states that the jury has the power as opposed to the right to acquit, or in the alternative that an acquittal saves the defendant from double jeopardy (only applicable to criminal cases) you would agree that the bar to curtailing such information is higher, since the information itself is truthful.

Again, even if preventing jury nullification is a compelling interest, does that recognition carry over to permitting a ban on out of court speech about the jury’s power.

Bruce Ediger (profile) says:

Re:

Oh, yeah, and calling someone a “fucking idiot” (http://www.techdirt.com/articles/20110201/10252412910/homeland-security-seizes-spanish-domain-name-that-had-already-been-declared-legal.shtml#c1967) doesn’t count as abuse either, especially when it comes from someone “average”.

Consider the source: biased always towards authority and power, might makes right, any power is OK for authority to exercize as long as its used thoughtfully.

Karl (profile) says:

Legality of "jury nullification"

Hey, Joe.

I guess if I inspire five or six multi-paragraph comments from you per hour, I must have struck a nerve somewhere.

Perhaps I should not have said “right.” Juries have the power of nullification; no court can stop the jury from doing so; and there is no punishment for a jury that does so. Jury nullification causes no exception to “double jeopardy,” and cannot be grounds for appeal.

As the Court said in Dunn v. U.S., 284 U.S. 390 (1932)

Thanks for pointing out these cases. I hadn’t read them before, but I did just now.

That quote was actually from Steckler v. U.S. It was quoted in the Dunn and Standefer cases. The end of Steckler reads:

That the conviction may have been the result of some compromise is, of course, possible; but to consider so is to consider too curiously, unless all verdicts are to be upset on speculation.

In other words, even when juries assume “a power which they had no right to exercise,” the verdict stands.

Dunn also compares this to Horning v. D.C. That case includes this quote:

The judge cannot direct a verdict, it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts.

That quote has generally been interpreted as an acceptance of jury nullification, though not an endorsement.

Of course, that case also affirmed that a judge could legally instruct a jury that a guilty verdict was the only correct verdict. So, there you go.

A case which acts as a pretty good summary of the whole mess is U.S. v. Desmond:

As a general proposition, special verdicts are generally disfavored in criminal cases, but there is no per se rule against them. We so held in cases within the past two years. Some of the antipathy toward special verdicts in criminal trials has its roots in the doctrine of “jury nullification,” the power of a jury “to bring in a verdict in the teeth of both law and facts,” a “technical right, if it can be called so, to decide against the law and the facts….”

Jury nullification has a unique place in the law and has been the subject of spirited debate for hundreds of years in both English and American law. In the famous case of Sparf and Hansen v. United States, the justices conducted an exhaustive review of the authorities and the majority concluded that, although the trial judge may not direct a verdict of guilty, it is “the duty of the court to expound the law and that of the jury to apply the law as thus declared to the facts as ascertained by them.”

Even though Sparf resolved the controversy as to the duty of jurors in federal criminal trials, the power to acquit in derogation of that obligation remained – because there could be no punishment for such conduct. Thus, Justice Holmes’ comment in Horning that the jury could decide a case in the “teeth of both law and facts,” made 25 years after the Sparf opinion, was simply a realistic appraisal of this still viable power. […]

It is also true that the courts have adopted a rather ambiguous attitude toward jury nullification, or “jury lawlessness” as Dean Pound termed it. Respect for the concept and its benefits is reflected in opinions such as Duncan v. Louisiana, where it is observed that “(i)f the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.” In United States ex rel McCann v. Adams, Judge Learned Hand spoke of the jury’s verdict as introducing “a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions.”

Yet, when defendants have asked that jurors be instructed on their power of nullification, the requests have been denied. [Citations omitted.]

That about sums it up.

Again, you shouldn’t rely on wikipedia to make your legal arguments.

I go to Wikipedia to get some initial cases, but then I look them up directly. I did so in this case as well. You’ll notice that my quote was more extensive than Wikipedia’s, which is because I got it from the text of the ruling itself.

average_joe says:

Re:

I think that even if the pamphlet is incorrect in identifying nullification as a right rather than a power, it would receive the same First Amendment protection. Perhaps the judge did overstep his power, I don’t really know. I do think that there are good arguments on either side, and I do think Mike was dead-on in saying this raises First Amendment issues. To have a more informed opinion than that, I’d have to do some research.

Karl (profile) says:

Re:

If you have no right to do something, but you do it anyway, then are you not doing something legal.

Just a nitpick, but this is not at all true.

You are only doing something illegal if there is a law against something, and you are breaking that law. If no such law exists (as is the case here), they’re not doing anything not legal.

By default, humans have a legal right to do anything they have the ability to do. Laws take away some of those rights. That’s why laws have to be written so carefully – they are, by definition, an infringement on the public’s rights, and thus must be justified.

Most laws are justified, of course. Nobody here wants to live in a society where murder is legal.

But the idea that an activity must be explicitly approved, or else you’re breaking the law, is simply not correct.

Anonymous Coward says:

Re:

Actually, jury nullification is the minority telling the majority what to do, which is what this group appears to be trying to do. What they are looking for is people who are sensitive to issues such as abortion, gun control, immigration, and other related subjects, and are trying to push them to be activists in the jury room, rather than really considering the merits of the case.

It is an incredibly dangerous situation, because it allows a small number of people (really you only need 1 in 12 in the room) to dictate the outcome of the case.

Since I haven’t see the full text of their pamphlets, I cannot say for certain, but I suspect that they are trying to push nullification as the “first” option in the jury room, not the last. That is incredibly disruptive to the judicial process, and puts in doubt laws legally passed and enforced by the majority.

It would appear on the surface to be the legal equivalent of yelling “fire” in the theater. It is incredibly dangerous speech that can cause great harm.

G Thompson (profile) says:

Ah Jury nullification..

or for want of a better phrase

“The ability of a Jury, that by law is independent of the judiciary, to vote with their conscience on an unjust law without fear of persecution by the lawmakers”

The most famous nullification case (In the USA) is the 1735 trial of John Peter Zenger.

Zenger was charged with printing and publishing seditious libels of the then Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels and therefore the only issue the court stated that the jury was free to decide, since as the publishing was prima facia by Zenger the court deemed the truth or falsity of the statements to be irrelevant., the jury in its infinite wisdom as citizens nonetheless returned a verdict of “Not Guilty.”

This case is the beginnings of the USA’s Freedom of the press and one of the best examples of the people standing up to the government and is really why today governments, judges, and even some lawyers (if they even get taught it) do not ever ever EVER bring up the specter of Nullification.

The Zenger trial can be read about here http://www.law.umkc.edu/faculty/projects/FTrials/zenger/zenger.html and there is also a nice link on there about Jury nullification.

Anyone who has studied law in regards to media, defamation, et.al should know about this case. If not get out the old historical Pre-Pacer journals and read!

Anonymous Coward says:

Re:

I wasn’t disagreeing with the “lawyers and judges can’t change that” part. I was disagreeing with the parts that came before that.

Yeah, that would be the “a human being has the right and obligation to be fair and do what is right” part. I know you don’t believe that’s true, but that’s you. I do.

That is the essence of the AC.

Why, thank you!

average_joe says:

The judge’s order is here: http://billstclair.com/administrative-order-2011-03.pdf

The judge cites Florida Statutes 918.12 which states:

918.12 Tampering with jurors.?Any person who influences the judgment or decision of any grand or petit juror on any matter, question, cause, or proceeding which may be pending, or which may by law be brought, before him or her as such juror, with intent to obstruct the administration of justice, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

So he’s going with a jury tampering argument.

He also quotes a Florida appellate court case, Nobles v. State, 769 So.2d 1063 (2000). In that case, the trial court had held that the crime of jury tampering could be proven by evidence that a defendant attempted to influence a prospective juror. The appellate court affirmed, holding that:

We conclude that section 918.12 prohibits an attempt to influence a member of the jury venire as well as a member of the jury panel ultimately selected to try the case. . . . Section 918.12, Florida Statutes expressly prohibits an attempt to threaten or influence any person who has been summoned for jury duty and might be called upon to serve on a jury.

The appellate court quotes a Florida Supreme Court case, Baumgartner v. Joughin, 105 Fla. 335 (1932), where it was held that:

[W]hatever tends to obstruct the due administration of justice in the courts, by bringing undue influences or temptations or corruption to bear upon those who are likely to be selected for duty on juries, is an act calculated to obstruct the fair and impartial trial of jury cases in the courts, and as such, is a direct obstruction to the proper administration of justice which is punishable as a contempt.

Tampering with a member of a general jury panel, or with members of a jury panel selected to try a case, or with prospective jurors before they are sworn, is universally regarded as a contempt of court to the same extent as tampering with jurors actually sitting in the trial of a case.

So to me, the issue is simply whether preventing a person from tampering with prospective jurors violates that person’s First Amendment rights. I think the judge has a great compelling interest argument that he can prevent such activity.

G Thompson (profile) says:

First Amendment scrutiny

Your First Chief Justice, John Jay stated it elequently when he told the jurors: “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision…..you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy. – Georgia v. Brailsford 3 U.S. 1 (Dall.) (1794) [my emphasis]

Also you might want to look at your own 6th Amendment where a jury is to be unbiased and impartial (venire) and therefore can not legally (though it happens all the time) be told they must give a verdict of guilt based on the evidence. A judge by definition cannot mandate a verdict, it is up to a jury to do this and the Juries decision and how they came to that is sacrosanct and can never be questioned.

Anonymous Coward says:

Re:

I’d say his interpretation is pretty good. Yours, on the other hand, is not.

The courts have basically said that jury nullification is a necessary evil in criminal cases, as long as general verdicts (as opposed to special verdicts) are used, but that nullification is a violation of the juror’s oath, and courts should do everything in their power to prevent such violation/nullification.

It does not mean “they must know they have that right before hand since the courts don’t like that law.”

G Thompson (profile) says:

Re:

Ah yes contempt of court. That old bailiwick where the court is judge, jury and executioner on its own domain.

Oh and “Prospective jurors before they are sworn”? Isn’t that every single able bodied citizen who could be EVER called to jury duty now and in the future? or was the Baumgartner v. Joughin, 105 Fla. 335 (1932) citation obiter and someone forgot to state a caveat on what is meant (not presumed) by a “prospective juror” which a reasonable person would presume to mean after voir dire is performed but before sworn.

But then again.. it is Florida πŸ˜‰

Anonymous Coward says:

First Amendment scrutiny

“you can say all you want that the jury does not have a right to nullification, they only have the power…. but the statement in and of itself is a contradiction in terms.”

No, it’s really not. I’m not sure why you equate “power” with a “de facto right.” Do I have the “de facto right” to shoot someone? I have the power!

If someone were distributing literature on how to kill a jury member without getting caught, I don’t think the truthfulness of the information would end the First Amendment analysis.

At any rate, we don’t know whether the information in this case was truthful or not, regardless of how you view jury nullification.

Karl (profile) says:

Re:

Can you name something I can do legally but that I don’t have the right to do?

Nowhere in the law is it explicitly stated that you have a right to breathe. So, legally speaking, you “don’t have the right” to breathe. That doesn’t mean breathing is unlawful.

Or, let’s take plagiarism as an example. Unless it’s also copyright infringement, plagiarism is not illegal in any way. You could take a public domain work, publish it under your own name, and there would be no legal consequences. But many people would think you “don’t have the right” to do that.

It’s similar with jury nullification. Judges may opine that juries don’t have that right; but unless that right is removed by law, they’re not doing anything unlawful.

velox says:

Wow— You head off to work and look what happens when you’re busy doing other stuff…> I sure missed a day of it here today.
It’s going to take me several days to read the cases and digest the issues here.

@ RD and AJ: Thanks for starting this heated discussion that we’ve all learned from.
Now perhaps the name-calling will tone down — but probably not much longer than tomorrow morning when ‘Anonymous’ starts in at again.

average_joe says:

Re:

I had to look “bailiwick” up. Nicely done. I think the crux here is that the pamphlets were being handed out to people who were in fact prospective jurors for the specific purpose of influencing them. If the judge was trying to prevent activity that only might affect prospective jurors, I’d agree that that would be prior restraint. But as it is, I think it’s debatable.

Chris in Utah (profile) says:

Jury Novation

Heh, ironic since nullification was exactly helped the civil rights movement.

However, jury veto power is still recognized. In 1972 the D.C. Circuit Court of Appeals held that the trial jury has an “…unreviewable and irreversible power…to acquit in disregard of the instruction on the law given by the trial judge.” The pages of history shine upon instances of the jury’s exercise of its prerogative to disregard instructions of the judge; for example, acquittals under the fugitive slave law (473F 2dl 113)

So I respect your view on disfavor but not the premise for it.

average_joe says:

I found a case from the Alaska Supreme Court coincidentally involving this same FIJA group. It’s Turney v. State, 936 P.2d 533 (1997).

In that case the defendant, Turney, was charged with jury tampering for handing out pamphlets and telling jurors their “rights” near the courthouse in Fairbanks. Turney argued that Alaska’s jury tampering statute was overbroad because it criminalized protected speech. The court rejected the overbreadth argument, noting that:

[I]t is the intent to influence the outcome that is critical. Whether such statements violate the statute turns on the intent of the utterer; a misguided or erroneous suggestion does not violate the statute absent the prohibited criminal intent. ***

Speech aimed at influencing the juror’s conduct as a juror, i.e., the juror’s execution of the responsibilities imposed by the trial court in a particular case, is not constitutionally protected. Justice Frankfurter noted that: “In securing freedom of speech, the Constitution hardly meant to create the right to influence judges or juries. That is no more freedom of speech than stuffing a ballot box is an exercise of the right to vote.” Pennekamp v. Florida, 328 U.S. 331, 366, 66 S.Ct. 1029, 1047, 90 L.Ed. 1295 (1946) (Frankfurter, J., concurring).

Other courts that have looked at the issue have also recognized that utterances involved in the obstruction of justice are not protected by the First Amendment. In rejecting an overbreadth and vagueness habeas challenge to a witness tampering statute, the federal district court in New Hampshire held that the defendant’s interest in communicating with a potential witness with the intent to tamper was ?minuscule? and outside the scope of First Amendment protection. Kilgus v. Cunningham, 602 F.Supp. 735, 739-40 (D.N.H.), aff’d, 782 F.2d 1025 (1st Cir.1985). The Florida Court of Appeals similarly concluded that ?[e]fforts to influence a grand jury in its deliberations respecting specific matters under investigation by it are not shielded by the constitutional guarantee of free speech.? Dawkins v. State, 208 So.2d 119, 122 (Fla.App.), cert. denied, 393 U.S. 854, 89 S.Ct. 101, 21 L.Ed.2d 123 (1968). In concluding that the presence of spectators wearing ?Women Against Rape? buttons at a rape trial deprived the defendant of a fair trial, the Ninth Circuit noted that ?[w]here fair trial rights are at significant risk … the first amendment rights of trial attendees can and must be curtailed at the courthouse door.? Norris v. Risley, 918 F.2d 828, 831 (9th Cir.1990).

We conclude that because AS 11.56.590 is narrowly drawn and proscribes only speech intended to influence a juror in his or her capacity as a juror in a particular case, it does not reach speech protected by the First Amendment, and thus is not impermissibly overbroad.

average_joe says:

The Supreme Court in Cox v. State of Louisiana, 379 U.S. 559 (1965), weighed in on the constitutionality of a statute that disallowed picketing near courthouses:

There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create. Since we are committed to a government of laws and not of men, it is of the utmost importance that the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democracy. See Wood v. Georgia, 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 L.Ed.2d 569. The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding, starting with arrest and culminating with a trial ?in a courtroom presided over by a judge.? Rideau v. Louisiana, 373 U.S. 723, 727, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663. There can be no doubt that they embrace the fundamental conception of a fair trial, and that they exclude influence or domination by either a hostile or friendly mob. There is no room at any stage of judicial proceedings for such intervention; mob law is the very antithesis of due process. See Frank v. Mangum, 237 U.S. 309, 347, 35 S.Ct. 582, 595, 59 L.Ed. 969. (Holmes, J., dissenting). A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence. A narr