Jurors aren’t necessarily supposed to be well informed. For example, if a damning piece of evidence is presented but ruled inadmissible, it’s going to be pretty hard to ignore that when deciding.

If a defendant is generally considered a jerk by the public but the evidence points towards innocence, it’s going to be harder for the jury.

You know what happens when you give morons too many choices?

The jury box..

Let’s take our country back!

I am being abused today for expressing a differing opinion. Do you not see that?

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.

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.

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.

Then don’t read them. No one’s forcing you to.

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.

I’m probably not contributing anything new, since there’s already almost 200 posts on this article, but assuming that a
the “Fully Informed Jury Association (FIJA)” is all about “fully informing” juries, simply based on its name, is hilariously naive.

I mean, that has to be satire, right?

Read all about it:
http://theinternationallibertarian.blogspot.com/2011/02/judicial-crackdown-on-jury-rights.html

Remember, it was an “informed jury” that convicted Mike of rape and murder.
http://www.techdirt.com/articles/20100204/0125048040.shtml#c1686

Wassa matter, Joe?

Don’t recognize your own words?

Perhaps you should follow your own advice…

CBMHB

Pray tell where is law that requires jurors to vote only on the facts in evidence and the law? Hint: It does not exist.

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

“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.

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?

Interesting, though extreme example. The death penalty for petty theft would clearly violate the 8th Amendment. Plus, I think they have to give the jury the option of a lesser included, non-capital offense to vote on, or else that violates Due Process under the Fifth Amendment.

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.

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.

After disregarding all the back and forth invective, I’d like to say— thanks for the quotations, RD

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).

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”?

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.

Actually, doesn’t that seem like the very core of the first amendment?

Not if there’s a compelling state interest to prevent it.

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.

He’s said that he’s a law student, not yet a lawyer.

That’s right, I’m a lowly law student. Despite what you may have heard, lawyers are people too. 🙂

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.

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.

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…

Yeah, not at all the types to revolt against the law and order of the King.
/s

Actually, doesn’t that seem like the very core of the first amendment?

Not if there’s a compelling state interest to prevent it.

Heh. If the state weren’t interested in suppressing speech there wouldn’t be a need for the First Amendment, would there?

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.

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.

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.

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.

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.

I just realized that this court is the Ninth Circuit… of Florida. LOL! That doesn’t change the analysis since the Supreme Court has made clear there is no right to nullification, but I thought I’d clear up my mistake.

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.

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.

Thanks for this. Good to see a little actual law, in addition to what everyone *says* is the truth (cuz they read it on the internet and liked the sound of it).

It’s a unique case, since there is no punishment for nullification, but there *is* law authorizing courts to try to prevent it from happening.

Does that make it “illegal?” I think that’s a vague term to begin with, so I have no opinion on the matter.

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.

The “snore” part was in reference to that poster’s silly attitude. Apparently you don’t seem to think there’s anything wrong with his attitude, but from me, it gets a “snore.”

Dihydrogen monoxide:

* is called “hydroxyl acid”, the substance is the major component of acid rain.
* contributes to the “greenhouse effect”.
* may cause severe burns.
* is fatal if inhaled.
* contributes to the erosion of our natural landscape.
* accelerates corrosion and rusting of many metals.
* may cause electrical failures and decreased effectiveness of automobile brakes.
* has been found in excised tumors of terminal cancer patients.

Despite the danger, dihydrogen monoxide is often used:

* as an industrial solvent and coolant.
* in nuclear power plants.
* in the production of Styrofoam.
* as a fire retardant.
* in many forms of cruel animal research.
* in the distribution of pesticides. Even after washing, produce remains contaminated by this chemical.
* as an additive in certain “junk-foods” and other food products.

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.

You don’t have a right to breath? So I can legally take away all your oxygen? I wouldn’t be violating your rights, right? You don’t have a right to live?

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.

I don’t follow. If you publish a work without any possible legal consequences, then you are exercising your right to publish. That’s the First Amendment, no?

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.

Judges aren’t just opining that juries don’t have that right, they are stating the law. If a juror’s intent to nullify is known, that juror can be removed for cause. If a person is convicted despite the evidence, that person can get the verdict overturned on appeal.

I’m just not following you here.

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.

Actually, the caselaw I cited below makes it clear that you do not have a First Amendment right to stand outside the courthouse and attempt to tamper with the jury. Jury tampering is not protected speech.

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.

The caselaw I cited that addressed these issues found that such speech directed at prospective jurors is jury tampering, and as such, it’s not protected speech. Thank you, though, I am trying to “set ’em straight.”

“They have the power, sure, but not the right”

And as the caselaw that I quoted demonstrates, my statement was 100% correct. Why doesn’t the AC “own up” and admit that he was 100% wrong?

Where in this thread have I been wrong, Richard?

Do you or do you not know the definition of anonymous?

I never said nullification was a right. I said it was legal.

How is exercising a right you don’t have “legal”?

What *is* a right is talking about nullification.

Not when it’s jury tampering.

There must have been a recent and spectacular expansion of the definition of “jury tampering” that I wasn’t aware of if it now encompasses discussion of general jury practices which are completely legal but which judges just don’t care for.

It’s nothing new. Attempting to influence people known to be prospective jurors is illegal. It’s been illegal for years and years.

Since no one is in any physical danger whatsoever by being handed a pamphlet on jury nullification, the “fire in a crowded theater” paradigm doesn’t apply.

And yet the Supreme Court used that very analogy when declaring a statute that disallowed picketing near the courthouse to be constitutional. I quoted it below, but I’ll quote the relevant part here:

Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute-picketing and parading-is subject to regulation even though intertwined with expression and association. The examples are many of the application by this Court of the principle that certain forms of conduct mixed with speech may be regulated or prohibited. The most classic of these was pointed out long ago by Mr. Justice Holmes: ?The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.? Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470.

I’ll throw one of your favorite challenges back at you:

Cite? [Specifically a citation to caselaw or statute that says that engaging the public on a subject regarding an aspect of the judicial system (which itself is completely legal) is the equivalent of “jury tampering” merely because some judge would rather his/her juries don’t know about it.]

Read the Turney case I quoted below for starters, and then the Cox v. Louisiana case I quoted as well.

It’s OK to do that to the general public, but when it’s specifically targeted at prospective jurors with the intent to influence them, it’s tampering.

Drive a car.

As we are constantly told by those in authority, driving is a privilege, not a right. You can legally drive, but you have no right to do so.

Don’t people who meet the criteria (insurance, driver’s license, etc.) have the right to drive a car? And no one can infringe that right without due cause? If I had more time, I’d find better language, but the court here makes the point:

All persons have equal right to use the public streets and highways for purposes of travel by proper means with due regard to the corresponding rights of others, and it is unquestioned that an automobile is a proper means of conveyance on the public highways . . . . Certainly a citizen is not to be deprived of his right to use any means of conveyance within his control . . . . Public highways are established for the benefit of all who find it necessary or desirable to travel thereon, adopting any means of conveyance not prohibited by law.

Butler v. Cabe, 116 Ark. 26, 171 S.W. 1190, 1190 (1914).

I’m not claiming it’s an exercise of a right at all. It’s merely a legal power of the jury.

And again, how is exercising a right you don’t have “legal”? Since you don’t have the right, that makes it illegal.

Something for which you’ve provided absolutely no evidence other than your own say-so.

I’m telling you now for the third time to read the Turney case I quoted below. Since you can’t seem to locate it, I’ll quote it again:

[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.

Which part of “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.” is unclear to you? You do not have a right to talk about nullification if that speech is tampering a juror.

I can’t help but feel you disagree with me just for the sake of disagreeing. It’s getting really old.

LOL! *You’re* the one who has turned this into a jury tampering issue by repeatedly claiming that informing people about the lawful concept of jury nullificiation is “jury tampering”.

You pointed to the case above, specifically U.S. v. Thomas, then commented that it said nothing of jury tampering. I merely pointed out that it is not a jury tampering case, so the fact that it doesn’t mention jury tampering is wholly unremarkable.

I am not the one who started the jury tampering idea–the judge who issued the order that is the very basis of this article specifically gave his order because of jury tampering. The reason the judge won’t allow FIJA to accost prospective jurors outside the courthouse is because he says it’s jury tampering. Jury tampering is very much the subject of this article to which we are commenting.

You seriously appear to be trying to argue about anything and everything with me, but your arguments just aren’t hitting the mark. I don’t get it.

And, one last thing, I have provided indisputable proof that in the U.S. jury nullification is not “lawful.” I cannot fathom why you insist it is so.

I would think so, but that’s not what the government has been telling people since cars were invented. Driving is a mere privilege, revocable upon the government’s whim and upon which any number of restrictions may be placed that could not be placed on something which is a right.

Can you cite one source for the claim that driving is “revocable upon the government’s whim”?

And you do realize that almost all things that are your right are burdened with restrictions, right? The restrictions don’t mean it’s not a right.

Ha, you spelled “tool” wrong. You put an exclamation mark instead of the “L”.

😉

Yes, an extreme example, simply to make a point. As far as the 8th goes, of course you’re right, but that wasn’t my point. I could have easily used the mandatory minimum sentencing that is meted out to 19 year-old black kids who get caught with “crack” cocaine instead of “regular” cocaine: What is it, 30 years extra? I would call that cruel and unusual, but there are young black men in prison right now under those rules. The 8th didn’t protect them from that. A educated jury could have.

The point is this: the word “right” can be used in several different ways. I think your use is very strict and narrow. There are rights in the Constitution, and there are “natural” rights that we as a culture hold to be just as sacred. You may choose to split hairs and pick the semantic alternative of “power”, but it makes little or no difference to this discussion: Those things that we do, that make up the moral fabric of our society, whether or not the Government chooses to recognize them, are rights for all intents and purposes. Governments do not “give” rights to anyone, via a written Constitution or otherwise. Rights are natural, unalienable, and possessed without permission from any Government.

A Government may only “recognize” those rights, or not recognize them and try to alienate the people from those rights. If the Government chooses to alienate and prevent the people from exercising their rights, we have a few options at our disposal. One is to nullify the Government’s prosecutions so that they are essentially moot. Another is to revolt, which we did a little over 200 years ago.

Remember?

I’m sure King George had not granted us the “right” to start calling our own shots, but we didn’t need him to do so. We had the right to do as we damned pleased. Yes, it was a “right”. It wasn’t written down or granted by anyone, yet we had it nonetheless. Sure, it was a “power” as well, but if anything, it was a right that we had the power to enforce.

CBMHB

So if I take out a billboard along Main Street which says: “To all citizens who have received a jury summons: know this before you report – jury nulllification is legal!”… that can be suppressed by the government?

Probably not, but who cares?

If someone’s license is taken away for a reason, like refusing to take a sobriety test, then the license is not being taken away on a whim. That’s not what whim means.

“Pulling out the attitude about how I’d fail the bar exam while asking me a question won’t get any love from me. Why don’t you ask him why he pulled the attitude, Gabriel?”

Every time someone does something you don’t like, and I mean EVERYTIME, you sit here and automatically go into the corner and play the victim card.

I’ve been watching this thread and the fact remains Joe that you go through a cyclical phase in your posting habits.

First, you are helpful in the posting. From there you begin to lash out for attention on multiple occasions with other posters. Afterwards, you go through a denial phase where you act as if you’re superior to anyone else. Finally, there’s the phase where you apologize for rude behavior.

It’s as if you haven’t learned anything about why people treat you and your posting as if you’re better than everyone involved.

I’ve said it before AJ, I’m going to say it now. GROW UP.

It’s frustrating to sit here and know that you can be pretty smart, but you really show it in the wrong way.

Reasons why I question the application of this reference to our discussion of jury nullification:

[I]t is the intent to influence the outcome that is critical.

I read this to mean intent to cause a juror to vote one way or another in a specific case. I suppose it could also be construed to mean giving a juror incorrect information about being a juror.

But that seems to be the point in question, i.e. whether judges are in fact giving jurors the complete and correct information. I hardly think a charge of jury tampering would apply if someone recommended to prospective jurors that they do just as the judge instructs them, because that information is not counter to the judges wishes. However if a judge desires the jurors to act in a particular way which is opposed to their duty as jurors, that seems more like jury tampering to me than someone giving general correct information about being a juror with no intent to influence the jurors’ specific decisions.

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. ***

This looks like even if the information is wrong, it’s not illegal, lacking that specific ‘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.

Reading between the lines here, a judge is clearly trying to influence jurors conduct in a very specific case. I’m guessing what is meant is ‘influencing’ either in a wrong way, i.e. to get them to vote in a particular fashion, or suggesting they perform their duties in an incorrect way. In either case, handing out factual pamphlets does not target jurors in a specific trial nor suggest either a guilty or innocent vote. And if the information is correct, then I see no more harm than suggesting that one should serve jury duty rather than trying to get excused.

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).

Sort of boilerplate here. The judge may as well be saying that having a standing army isn’t intended to promote murder, or the right to keep and bear arms doesn’t mean we can all have battleships. Clearly there are myriad things existing rights don’t mean.

But again, I think he is using ‘influence’ in a very limited way. Everything from how a jurors spouse treated them that morning to experiences in second grade to minor aches and pains to whether the nice police person at the metal detector smiled at them will influence the jurors to some extent. But none of that was done with ‘intent to influence’ in what would be considered a ‘wrong’ way.

This all turns on whether the information is correct or not. Since there is no trial specific information being distributed and there is no suggestion to vote guilty or innocent, the whole ‘influence’ claim is conditioned on the information being wrong. That brings us to a question of whether what the judge is saying about juries’ rights and duties is correct or not, which is our point in question.

It seems somewhat circular to use a judge’s statement to support a judge’s statement here. I know that legally that’s kind of how it works. But we are discussing specifically whether a belief commonly held by judges is, in fact, incorrect; specifically, that juries have a duty to evaluate the law. I, for one, am willing to stipulate that many judges disagree with this concept. I am not, however, willing to stipulate that this invalidates the concept in any way.

Has a juror ever been sanctioned for casting a vote which was influenced by jury nullification ideas?

Is anyone arguing that it is right and proper for someone to be convicted of breaking an unjust law?

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.

Sure, obstruction of justice is a bad thing, but is justice obstructed by giving jurors complete and accurate information about their duties?

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).

Doesn’t really seem to apply to this discussion, as we aren’t talking about coaxing witnesses here.

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).

As no intent to ‘influence’ (as previously discussed) a jury, grand or otherwise, in deliberations respecting specific matters under investigation by it then this portion does not seem to apply.

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).

Fair trials are a good thing. But here, clearly, there was something of a suggestion that the jury find the defendant guilty, which suggestion is not present in the concept of jury nullification.

In fact, the whole point of jury nullification is to find a defendant innocent, if and only if certain conditions apply, i.e. the defendant is guilty of the charge in question, AND the law is unjust or unjustly applied to this defendant. (As an aside, if the defendant is innocent, jury nullification does not apply because it’s not about finding innocent people guilty. That is something else which is not under discussion here.)

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.

And there it is in a nutshell. “Proscribes only speech intended to influence a juror in his or her capacity in a particular case…” My understanding of the whole pamphlet thing is that, while it does appear to target people called for jury duty, it does not seem to target any SPECIFIC case.

I’ve been to jury duty half a dozen times or more, and I never had any information regarding any case I was called for. Where I live, if there are less than 3 or 4 possible cases on a given day, that’s unusual and most are of so little note that the average person never hears about them. I actually sat in jury selection for two different cases on the same day once. (And was not selected for either.) It would be sheerest speculation that a person handing out pamphlets on a given day were targeting a specific case. Add to that the generic nature of the literature and I don’t see how jury tampering could conceivably be applied. Yet I know that it has been.

I would point out that different judges sometimes have opposing ideas on points of law, which is one reason we have of courts of appeal. (The other obvious example being mistakes made by judges on points of law, which I suppose is also valid to mention here.) Further, I believe even the supreme court has on occasion (not often, I expect) reversed itself. With that in mind. I am certainly not prepared to accept a lower court ruling on this topic, inasmuch as I believe judges have a vested interest in the issue. If the supreme court issues an opinion on this I would be interested to read it. And, just to be difficult, I do not consider the supreme court’s silence on an issue to be definitive.

I would point out that this citation only draws a parallel to the example. It does NOT say they are the same. It is a reference merely to show that there are circumstances where it is appropriate to limit free speech. The question remains whether this is one of those cases.

I also question whether this is even a free speech issue. Free speech involves matters of opinion. If the jury in fact has a right and duty, as some claim, to evaluate the law, then it would not be a matter of opinion and no free speech issues ensue. Matters of fact are not subject to free speech limitations. To use the old example, it is perfectly reasonable, in fact it is a duty, to yell “Fire” if there is in fact a fire. (Subject to all sorts of stipulations about the relative danger to involved people by said fire, of course. ‘Reasonable man’ and so forth.)

However, there may be other compelling reasons for the state to limit circulation of facts.

Once during jury selection I saw a doctor dismissed for exactly that reason. He was asked if he could accept the testimony of another doctor as true even if he knew (believed) it to be untrue based on his own experience. Seemed like tampering to me at the time, and still does. But apparently that sort of tampering is OK.

Rights are most emphatically NOT granted by the Constitution. Things granted are privileges and may be revoked by the ruling authority at will and without cause or explanation. Rights simply exist and may only be limited with good reason.

This is how it’s supposed to work. Mind you, many have a hard time understanding this concept, including (and especially) ruling authorities.

If only it had been used in the Whitney Harper or Jammie Thomas cases…

If only it had been used in the Whitney Harper or Jammie Thomas cases…

If I’d been on that jury, I would have brow-beat those other jurors into coming in at the statutory minimum. Those verdicts were ridiculous. (See, we don’t disagree on everything.) I wouldn’t, however, have agreed to nullify anything if someone suggested it.

Here’s a more specific example: Make a right turn on red.

In my state, that right is codified in the motor vehicle statutes.

That doesn’t mean people shouldn’t warn others, it simply means they don’t have that duty. Let’s say there was that duty, then everyone who got hurt in the fire could sue every other theater patron who failed to warn him about the fire. That’s just ridiculous, IMO. Believe it or not, but most things in law actually make sense.

I’m aware of the theories, I just don’t think they have much application in real life. Not for me anyway. I’m more focused on rights, duties, privileges, immunities, and remedies. The philosophical underpinnings don’t really appeal to me so much. Is there a right, or isn’t there? Is there a remedy, or isn’t there? Etc. That’s what I focus on. I leave the philosophy to the philosophizers. Once people start talking about inalienable rights, honestly, I just tune it out.

Your citation says nothing about Jury Nullification being illegal, only that it can get you kicked out of court.

If a juror attempting to nullify can get that juror kicked off the jury, that should be your sign that that juror is not exercising any right. If nullification was a right, that juror could not be removed for exercising that right.

Just because that juror is not arrested for the attempted nullification doesn’t make it legal. To not arrest such a juror is simply a public policy position, not an indication that it’s legal.

No duh. If everything was black and white, lawyers wouldn’t have much to do.

This government is by the people. The right to trial by jury is a protection FROM the government – it was granted after we violently overthrew tyranny. Voting your conscience in defiance of the law is called “jury nullification” and is essential to promoting a good government, a fair and just one. Defying bad laws is, in fact, showing high respect for the system. If you wouldn’t have defied a Jim Crow law or something, you’re a detriment to our liberty, and you’re actually harming the system.

I can name something you can do legally that you don’t have a right to do. It’s a rather topical thing, considering. That is to serve on a jury. You may be required to do so, but you have no right to do so and cannot insist that you be allowed to do so.

And lest someone start talking about ‘having the right’ because you’ve been selected, that would be as absurd here as the ‘once you have permission to drive you have the right’ argument. Permission is granted to serve on a jury just as permission is granted to drive. The fact that there are rules which govern why that permission may be revoked does not a right make.

If driving were a right you would not be required to pass a test to get a license, a license which implies in and of itself that driving is not a right. There are conditions before the fact which must be satisfied before permission is granted.

As an aside, I find it interesting that in some parts of this discussion ‘rights’ are not considered ‘rights’ unless there is some mention of them in the Constitution, (or a reference in case law!) while in other places a ‘right’ morphs into literally anything you can legally do.

Doesn’t it seem like a ‘right’ should be the same thing all the time?

I think this whole discussion of ‘rights’ would benefit from some definitions. Sometimes it seems that the word ‘rights’ is being used as a synonym for ‘anything you are allowed to do’ or ‘anything which is legal to do’. But on the face of it, rights are not things you are ‘allowed’ to do. ‘Allowed’ implies permission. Rights are things for which you do not NEED permission to do. Rights are not granted, only recognized. They do not come from the Constitution and the Constitution, as recognized by it’s own text, is not the last word on what rights exist.

However not everything legal to do is a right, for instance driving a car or serving on a jury or entering someone else’ home with their permission or taking someone else’ property with their permission. (I’m sure there are myriad other examples, if required.)

Just to throw out something new, what about the defendant’s right to a fair trial?

I assert that from time to time, in an otherwise pretty good system, an unjust law makes it onto the books. (Think Prohibition, as a possible example.) So far, so good?

You might argue that nullification is not the right way to fix this law, and you would be right to a point, as removal of the law by whatever legal process is provided is superior to nullification on a case by case basis.

But what about the individual who is charged with breaking this unjust law in the interim? Is it even possible for him to have a fair trial if:

——1) He is guilty of breaking the stipulated unjust law
——2) The jury is bound by the ‘Jurors’ Oath’. (Seemed like it needed to be capitalized, since this thing you’re required to do seems to have some sort of holy status)
——3) The jury is further admonished by the judge that if the evidence shows that the individual broke the unjust law, that they must find him guilty of breaking the unjust law.
——4) The jury is further reminded that if they vote to acquit because the law is unjust they are bad people and will go to the bad place when they die because God and their mommies will not love them anymore. (OK I’m paraphrasing a bit. But to the extent that this concept comes up at all in jury selection, it is villainized and made very clear that it’s a no-no.)

? (this is a question. Had to put it somewhere, didn’t I?)

I submit that it is not possible to be fairly tried of breaking an unjust law if there is no option for the jury to recognize the law as unjust.

The jury is the ONLY way for this poor individual to get relief.

(Sure, there’s appeal. But that takes time and it is iffy, as the courts can be slow to recognize an unjust law. If that happens, there’s time in jail, possibly a lot of time, before the grievance can be redressed.)

Further, I would ask:

——1) Why can the judge not overturn an acquittal? (Yes, yes, I know. Double jeopardy. But what is the point of double jeopardy? That if the jury acquits, that’s FINAL.)
——2) Why the reluctance to inquire as to the reasons a particular verdict was returned? (Because it’s a can of worms that NO ONE wants to open. Does anyone want EVERY acquittal questioned with an eye towards overturning? Where would it end??)
——3) Why have a jury at all? If the only purpose is to rubber stamp what the judge says is the law, then there must be more efficient ways to evaluate whether the evidence supports the charges or not. Professional jurors? Or just let the judge do it.
——4) Why is a defendant guaranteed a trial by a jury of his peers? Surely they did not mean to suggest that one’s peers are the best legal minds regarding each specific case. Certainly it’s not because one’s peers are more knowledgeable about the crime’s one might break. Surely it’s not that one’s peers are more discerning of the subtleties of evidence, or the veracity of witnesses for and against one.

I believe that the sole reason a defendant is guaranteed a trial by a jury OF HIS PEERS is because peers are more likely to understand any inherent injustices involved.

Remember, the Founding Fathers were working from experiences of institutionalized injustice, where the king could decide you needed to provide room and board for his troop in your own house, where there were no protections on free speech, or assembly, or against unreasonable search and seizure, or arrest without charges or without representation, etc. These were realities for those guys and that’s why the Bill of Rights ended up in the Constitution in the first place.

I believe that the concept of jury nullification is embodied within the 6th Amendment in the phrase ‘of his peers’.

So, my stand is that the Right to a Fair Trial is more enhanced than diminished by the power of jury nullification.

Yes, that means that sometimes people will go free who have broken just laws. That also happens because of civil rights violations and is generally considered a necessary evil in order to protect the rights of everyone.

Yes, that also means that a jury can find someone guilty in the face of the evidence. Another necessary evil, for which there are some safeguards already in place, such as appeal and the powers of a judge to sentence and, I believe, in some cases modify an incorrect guilty verdict. (Sorry, not sure of the specific legalities here, but in my limited understanding, the judge has more leeway with a guilty verdict than with an acquittal.)

So, in conclusion, my analysis is that the 6th amendment trumps case law and local statute, and I feel the Supreme Court will back me up on this. One day. Eventually.

Also, the legality of it should be a very simple issue. If it’s illegal, just cite the relevant law so that everyone can look at it and see that you’re right. End of discussion.

Would that all the issues involved here were so simple.

Well, here I am to debunk my own post. I’m afraid I have to eat some crow now.

The phrase “trial by a jury of his peers” has become so ingrained that I misremembered that it does not actually appear in the 6th amendment. Imagine my shock at re-reading the amendment and finding it missing!

I stand by my argument in every particular, except where I reference this phrase as belonging to the 6th amendment. And I still believe that notion was included in the intent of the right to a trial by jury in criminal cases. Alas, the wording of the actual amendment does not echo this thought as clearly as “by a jury of his peers’.

As Asimov was wont to say, it was such a clever idea, it should have been correct.

Apologies to all for my arrogance. I should have double checked the actual text rather than relying on my imperfect memory and thereby weakening by association what I still consider to be several valid points.