Wednesday, May 24, 2017

A More Civilized Sort Of Jury Nullification

by Sherry F. Colb

In my column for this week, I write about the topic of jury nullification, occasioned by an episode of RadioLab that begins with a woman who served on a jury discussing having been criminally penalized for telling her fellow jurors about their ability to acquit the defendant for any reason. I talk about some of the pros and cons of nullification and conclude that if one has a basic trust of government and its officials, one will tend to oppose jury nullification and favor leaving it up to prosecutors to exercise their discretion in a just and wise fashion.
In this post, however, I want to consider what jury nullification might look like if we decided that we liked it and wanted to encourage jurors to use it whenever they deemed it appropriate. We could continue to have the system we have now, in which jurors are basically empowered to acquit in any case they like, and many (though not all) jurors know that they can do this (and--with the one exception discussed on RadioLab--know that they will not be punished for it). We could, in addition, allow defense attorneys to inform jurors of their power to acquit against the evidence, a move that would make jurors more likely to exercise this power than they otherwise might be.

Another alternative would be for us to accept juries as fully accountable power-wielding decision-makers within the justice system. This could mean that we would ask jurors to explain their verdicts in each criminal case and not simply indicate their verdict of "guilty" or "not guilty." It could mean as well that we would require jurors to provide reasons for a decision to depart from their ordinary role as fact-finders, such as when they acquit against the evidence. Because they are not experts in the law, they might be given options, such as "I voted to acquit because I believed the evidence was not strong enough to persuade me of the defendant's guilt beyond a reasonable doubt" and "I voted to acquit, even though the evidence was sufficient to prove each element of the crime beyond a reasonable doubt, because the law under which the defendant was prosecuted is unjust, in my view" and "I voted to acquit, even though the evidence was sufficient to prove guilt beyond a reasonable doubt, because it was abusive of the prosecutor to use an otherwise unobjectionable law to pursue a charge against a person who acted in a morally justifiable or morally obligatory fashion."

If we asked jurors either to explain their verdicts or to select from a group of explanatory options (like those above), we would be in a position to know (to the extent that jurors are forthright about their reasons) why jurors have acquitted a particular defendant. This might avoid public assumptions about jury nullification and our tendency perhaps to assume that whenever we disagree with a jury's decision, this means that the jury must have nullified. In such contentious cases as the O.J. Simpson and Rodney King prosecutions, we might have learned either that the jurors really were nullifying or that they simply viewed the evidence differently from how the public viewed it. Coming to a different conclusion about the evidence is quite different from nullification and might do less to inspire public anger and recriminations.

By proposing that jurors provide their reasons for issuing a verdict of acquittal, I aim to make the process of jury nullification--when it does occur--more transparent and more rule-like. Having to say why one is doing something has a disciplinary effect. One does not want to say "I acquitted the defendant because I could just get lost in those deep brown eyes." If one is thinking of acquitting an obviously guilty person but knows that a statement of reasons is required, one might change one's mind about the plan. And to the extent that jurors are honest about ugly prejudices that they hold, we would know what we are dealing with and could undertake public education campaigns to try to combat the prejudice.

Say, for example, in a date rape case, jurors wrote "I voted to acquit the defendant despite the fact that I was convinced beyond a reasonable doubt that he had sex with the victim without her consent, because I believe the woman should have to put up a fight if she really doesn't want sex" or "I voted to acquit against the evidence because with what she was wearing on the date, the woman was asking for it." This would be very disturbing and would (one hopes) occasion, first, a lecture from the judge about the legitimacy and importance of the rape law and second, a public conversation about the misogynist assumptions that drove the acquittal. We would no longer have to guess what jurors were doing or rely on the lazy and unconvincing "he said/she said" narrative to explain the verdict.

I still think I favor avoiding jury nullification as much as possible. Thus I would not tell jurors about their power to nullify, and I would encourage judges to tell jurors that they are to find the facts and must acquit if the evidence does not persuade them of guilt beyond a reasonable doubt and must convict if the evidence does so persuade them. Even if we left nullification in the shadows, where it currently lurks, it might still be useful to ask jurors to explain their verdicts in their own words. We might not like what we would learn if we did this, but it could be valuable to have the knowledge that such explanations would provide.  With or without a change in how we handle jury nullification, then, it would be beneficial to begin to require that jurors account for their decisions rather than remaining a "black box" that issues verdicts of guilty and not guilty without explanation.

11 comments:

Scalia 2.0 (visit me on Twitter) said...

"Tho’ judges are more likely to be able than jurymen, yet jurymen are more likely to be more honest than judges; especially in all cases where the power of the prerogative, or the rights of the people, are in dispute. Our rights, therefore, both as individuals, and as a people, are more likely to be secure while juries follow the result of their own opinion; for less danger will arise from the mistakes of jurymen, than from the corruption of judges."

John Hawles, The Englishman's Right: A Dialogue Between a Barrister At Law and a Juryman 71-2 & fn. (1680) (reprinted 1844).

It is well-known that federal appellate judges spend less than ten minutes in deciding the vast majority of appeals. E.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr), Jan. 16, 2004, at 5 (150 appeals decided in a two-day session); "Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings," The Des Moines Register, Mar. 26, 1999, at 12 (fifty appeals decided in two hours). They haven't read the opinions, to say nothing of the briefs. I'd rather have a jury make an arbitrary decision in defiance of law than I would a judge; trial judges do it all the time, b/c they know damn well that the appeal will be ignored.

Joe said...

It has been a few years, but I read that a few states in recent years allowed reference to jury nullification. I am wary about allowing it explicitly too and would be inclined to use the grand jury and some role for juries in sentencing to temper the harshness of the law for justice.

As to the proposal to provide juror full disclosure, I'm wary about that. I'm not sure if jurors would be fully honest anyhow and generally they might not have a fully clear-cut reason -- a factor might have influenced them, yes, but even they themselves might not know if that was the but for reason. This will also infringe upon the jurors' ability to freely make their decisions.

I prefer to just have them provide verdicts and leave the reasoning to the jury room. The information is helpful. And, when possible, it is useful to get a sense of the juror's true feelings. But as a hard and fast rule, I would not prefer it.

Shag from Brookline said...

I'm pondering this in Prof. Colb's closing paragraph:

"Even if we left nullification in the shadows, where it currently lurks, it might still be useful to ask jurors to explain their verdicts in their own words."

How might this be accomplished - and by whom? Would all the jurors be assembled and asked? Would jurors be warned of possible liability for nullification? There might be substantial differences in the responses of jurors in explaining the jury's verdict that could be contradictory.

el roam said...


Thanks for that interesting post , the whole issue is amazingly complicated , yet , the suggestions of the respectable author of the post , are more than bit problematic , let's take those jerks quoted so :

"I voted to acquit the defendant despite the fact that I was convinced beyond a reasonable doubt that he had sex with the victim without her consent, because I believe the woman should have to put up a fight if she really doesn't want sex"

and the other jerk :

"I voted to acquit against the evidence because with what she was wearing on the date, the woman was asking for it."

End of quotation :

The point is , that much less transparency would be rendered so , this is because , we may intrude questions of law , instead of questions of fact . Those jerks quoted , admit the facts in gross modo , yet , they seem to argue , or as matter of fact argue , that as matter of law , the accused should be acquitted ( Thanks to what one was wearing on the date , and the one that hadn't fought for her " survival " ) .

So , instead of transparency , we would shift to domain of secondary argumentation , what the law dictates , concerning the behavior of the victims , or issues had to do with restrictions on criminal liability , and so forth …. As such , one can't in fact , separate law from fact , only the composite of both , renders justice and legality in fact .

Finally , that is why , such doctrine , sucks …. Jurors are not competent for such issues as laymen , only professional judges and lawyers .

Thanks

Joe said...

Perhaps, a voluntary anonymous questionnaire can be provided.

Paul Scott said...

"I talk about some of the pros and cons of nullification and conclude that if one has a basic trust of government and its officials, one will tend to oppose jury nullification and favor leaving it up to prosecutors to exercise their discretion in a just and wise fashion."

I find this interesting, because I do have a basic trust in government except when it comes to law enforcement - where I feel racism, classism and sexism play a huge role in criminal outcomes.

So I trust the government generally, but am a big proponent of nullification and would use it frequently (if I were ever allowed on a jury, that is).

Joe said...

If one is concerned about "racism, classism and sexism," as am I, not sure if a criminal jury nullification would net help things. There is a two-edged sword there. Has been used for non-enforcement of both fugitive slave and civil rights laws.

Shag from Brookline said...

When things get amazingly complicated, i listen to Harry Lauder's "ROAMIN' in the GLOAMIN'" which I first heard in the late 1930s at Intercolonial Hall on Dudley Street in the Roxbury District of Boston a couple of blocks from where I lived at the time. (I also heard there the memorable lines "You take the hight road and I'll take the low road, And I'll be in Scotland 'afore ya ....)

By the way, I recall that at one time the jury not only determined the facts but also the applicable law. Apparently judges didn't like this and changed the jury's role to determining the facts and applying the law per instructions from the judge to the jury. Occasionally I watch Law & Order re-runs and every once in a while jury nullification is built into an episode.

el roam said...

Once again ( it is almost a drill ) just for readers :

I can't comment on that Shag , because , automatically almost , deleted . One can only imagine , what would be written there , and anyway , why always deleted .

Thanks

im sunny said...

Nice thought and nice blog too.

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Joe said...

Sparf v. United States (1895) was an important statement against jury nullification, leaving open the raw power of the juries to do so. Justice Harlan, e.g., argued an early case that suggested otherwise was limited and not applied to criminal cases.

And, we can find experts who dispute his judgment of history here. But, more importantly, there was a lot of developments of law since then. This includes much more complexity and volume, both statutory and judicial judgments. More diverse juries also factors in here (men/women, white/black, no property requirements etc.); one or two jurors disputing the law can lead to more hung juries. etc.

Once a case goes to a jury though I think there tends to be enough wiggle room to find reasonable doubt in most cases, especially with "a bit of help" -- people can convince themselves of things. The complexity of the law can matter here too, jurors latching on to fine lines when they want to. Mind you, judges do that too.