Jury Nullification: How Citizens Can Protect Us From Unjust Laws
Glenn Reynolds has an important column in USA Today on jury nullification -- how jurors can let the accused go free:
If you are a member of a jury in a criminal case, even if you think the defendant is guilty of the crimes charged, you are entirely free to vote for acquittal if you think that the prosecution is malicious or unfair, or that a conviction in that case would be unjust, or that the law itself is unconstitutional or simply wrong. And if you do so, there's nothing anyone can do about it.Judges and prosecutors know this. But they don't want jurors to know it, which is why we occasionally see cases like this one, in which jury-information activist Mark Iannicelli was arrested and charged with "jury tampering" for setting up a small booth in front of a Denver courthouse labeled "Juror Info" and passing out leaflets. Putting up a sign and passing out leaflets sounds like free speech to me, but apparently Denver District Attorney Mitch Morrissey feels differently.
In a world where we have far too many laws (which means that people who are not criminals -- like the Pennsylvania woman who declared her registered gun in New Jersey -- can be arrested and imprisoned on bullshit charges), two words for Mark Iancelli: Thank you.
About an earlier case in this area taken by Reynolds:
UCLA law professor Eugene Volokh wrote: "It seems to me that such speech is constitutionally protected, and that the indictment therefore violates the First Amendment. One can debate whether jury nullification is good or bad for the legal system, but it's clear that it's not a crime for jurors to refuse to convict even when the jury instructions seem to call for a guilty verdict. So Heicklen is encouraging a jury to engage in legal -- even if, in the view of some, harmful -- conduct." It's legal, but prosecutors don't want jurors to know about it because if jurors knew they were free to acquit in the interest of justice, it would weaken prosecutors. (Prosecutors don't even like billboards aimed at educating jurors.)Of course, prosecutors have essentially the same power, since they're under no obligation to bring charges against even an obviously guilty defendant. But while the power of juries to let guilty people go free in the name of justice is treated as suspect and called "jury nullification," the power of prosecutors to do the exact same thing is called "prosecutorial discretion," and is treated not as a bug, but as a feature in our justice system. But there's no obvious reason why one is better than the other. Yes, prosecutors are professionals -- but they're also politicians, which means that their discretion may be employed politically.
It's problematic in that one defendant could be convicted by a jury who supported an existing law, while another defendant, who did the exact same thing, would not be convicted, due to jury nullification.
Snoopy at August 7, 2015 7:15 AM
Yes, and this is the reason most prosecutors would rather force a plea bargain than let a case go to trial.
For a true reform of the system we need to get rid of most plea bargaining for felonies, and there should be no evidence admitted from jailhouse informants.
Prosecutors should be forced to take almost every felony to trial, and asset forfeiture without a conviction needs to go.
In the end, it will be the only way to get rid of the stupid, and (mostly unconstitutional in my opinion) sex and drug laws.
Isab at August 7, 2015 7:21 AM
It's problematic in that one defendant could be convicted by a jury who supported an existing law, while another defendant, who did the exact same thing, would not be convicted, due to jury nullification.
Posted by: Snoopy at August 7, 2015 7:15 AM
This already happens. It is called prosecutorial discretion.
Your problem is assuming that the justice system as it exists now is fair and impartial. It is anything but.
The states have jurisdiction over most crime, and the results and punishment can be wildly different depending on the location, and whether the local prosecutor is elected or appointed.
If you are caught dealing meth in Chicago, and are black, you mostly likely will get a slap on the wrist and probation.
If you are a white guy dealing in Austin Texas, it is going to be five years in prison.
Isab at August 7, 2015 7:33 AM
Jury nullification can backfire: O.J. Simpson
Nick at August 7, 2015 7:56 AM
Jury nullification can backfire: O.J. Simpson
Posted by: Nick at August 7, 2015 7:56 AM
I am not sure this was jury nullification. Mind reading is a pretty neat trick. Most can't manage it. And murder cases have a very high bar of proof for a reason.
But that is the way our system works, We let a lot of the guilty go free, in the hopes that we do not convict too many of the innocent.
Police states operate pretty much the opposite way.
Jury nullification is one of the few defenses against an over zealous prosecutor.
Isab at August 7, 2015 8:12 AM
If OJ were tried today, it would be a slam dunk conviction. Take away the celebrity, the racial aspects, the low speed car chase - still an easy conviction.
His was one of the earliest trials to use DNA evidence, and the jurors didn't understand it. After years of watching CSI, NCIS, and L&O, the American public has a much better understanding of just how damning that evidence was.
Aimee at August 7, 2015 8:57 AM
"After years of watching CSI, NCIS, and L&O, the American public has a much better understanding of just how damning that evidence was. " Aimee
OJ might be convictable today, but those TV programs show science that doesn't exist... and most juries are surprised how not true some of that stuff is...
many mistakes were made and the prosecution wasn't good IIRC, and it is THAT that really counts.
In any event what Morrisy is doing is trying to curb what would be a bad precedent, but he's just showing how the prosecutorial discretion can be abused... this is clear 1st. ammendment, and he will lose...
ADDITIONALLY, he will bring a huge spotlight to something he was hoping to keep on the downlow, so it's all just stupid.
SwissArmyd at August 7, 2015 9:10 AM
I put most of the OJ acquittal on the police and prosecution. Walking around showing stuff to all your friends for a day or two before checking it into evidence is not appropriate procedure. Given the evidence presented to the jury I would have acquitted too.
Ben at August 7, 2015 10:27 AM
There is no perfect system. The point is to error on the side of caution: better to let a guilty person go, than to convict an innocent person.
Prosecutors are so overzealous, and they pile on charges in an attempt to force a plea bargain - especially if they know they are going to have trouble in court. Just look at this guy in Amy's blog post, who passed out brochures. It wasn't enough to charge him with "jury tampering" - they charged him with seven different counts of jury tampering. Stupid.
And that's the reason juries need to nullify more results. Because the prosecutors aren't after justice, they're after conviction counts. They generally don't care whether a conviction represents justice.
a_random_guy at August 7, 2015 10:33 AM
"Because the prosecutors aren't after justice, they're after conviction counts."
A random guy - that is exactly the truth! Their career is built upon what percentage of convictions they get.
And it isn't just prosecutors - it is also the local cop. They must know full well that some of the charges are only to get the person to plea bargain to the lesser charge.
When I served on grand jury it was all to obvious that is what they were doing. It was rather disgusting at times; forget about it being called justice - I wouldn't even call it truth!
charles at August 7, 2015 12:27 PM
When I was a reporter for a newsradio station in San Jose, I got to interview now-Mayor Sam Liccardo when he was running for City Council for the first time. He was a prosecutor for the District Attorney and he mentioned that he had a 100% conviction rate. (It wasn't bragging. I asked him what his conviction rate was.) A question popped into my head that I didn't ask, that in this time of stories about prosecutorial misconduct, if having a 100% conviction rate was really something he should be proud of. I was relatively new at reporting at the time and I really wished I had actually asked this question. (And to be fair, it wasn't something he harped on during his campaign for Mayor.)
Fayd at August 7, 2015 1:20 PM
This is why I look forward to a summons in the mail for jury duty-- I just may be able to get someone off a bad rap.
jefe at August 8, 2015 1:51 PM
The last time I had jury duty, during jury selection for the trial the prosecutor asked me if I would agree to follow the judge's instructions to the jury. I said I would if I agreed with them, but I couldn't say until I heard what they are. They still picked me anyway.
Ken R at August 9, 2015 10:06 AM
Most people believe there are three checks and balances that limit the government's ability to abuse its power, which are the three branches of government. But actually there are five. The other two are jury nullification and the Second Amendment.
Ken R at August 9, 2015 10:13 AM
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