As a nearly immediate follow-up to my earlier post today on jury nullification, let me post a link to a discussion about the topic at Patterico's Pontifications, where many smart people I otherwise agree with on many issues are decrying jury nullification as "jury misconduct". Frankly, I'm amazed that many of the same people who support the right of citizens to carry weapons feel threatened by the power of juries to judge laws as well as facts. Reading the comments, jury nullification opponents pose arguments against the power of nullification that are nearly identical to the arguments of those who want to ban guns. They don't trust the public to act as a check on the government.
Like carrying guns, jury nullification is a power that can be used for evil as well as good. That should go without saying, and yet many anti-nullification arguments seem to focus on the instances in which nullification was used to, for instance, acquit whites who lynched blacks. That's obviously a wrong use of the power. But just as guns are important to freedom despite ocassional misuse, jury nullification is also important despite the cost of occasional misuses.
The main difference between gun use and jury nullification is that someone who misuses a gun can be prosecuted and punished if guilty, whereas a juror who nullifies unjustly cannot be touched by the judicial system. Perhaps social punishment is enough to deter unjust jurors, but if that's not the case then maybe we should just pass a law that allows jurors to be prosecuted for nullification. Then, when those jurors are tried, a new jury will be empowered to judge their actions and render a verdict. The trial in which nullification was initially used would be untouchable, but jurors could be punished individually if their peers later believed that their nullification was unjust. Such a system would impose a cost on jurors for nullification and give them an incentive to use the power rarely and only when they believe that their peers will back them up.
The main problem with your argument is that you're equating juries with the public. But juries aren't just twelve people selected at random. They are subject to all sorts of biasing forces.
First, the jury only includes people from a given county. Trial lawyers have made a science of determining which counties' residents are more likely to give a favorable verdict. Geography correlates heavily with race, class, and various other relevant variables.
Second, juries are subject to peremptory strikes, which allow the lawyers of both sides in a case to simply disallow a given juror without giving a reason. Different lawyers have all sorts of theories on how to use those strikes, but the point is that this is another factor that makes an actual jury unrepresentative.
Third, juries consist only of those people who actually show up for jury duty. I don't know how that affects the pool, but there's no reason to believe that it does so in a neutral way.
Jury nullification is the opposite of law. We have laws so that people can act and lay plans with confidence in how the government will react. The law fails us when its only answer is: "You'll have to wait until the trial is over to find out."
Jury nullification is also the opposite of law because juries base their decisions on factors that shouldn't be relevant. Should the law treat blacks the same as whites? Women the same as men? Attractive people the same as ugly ones? It should. But when you put a jury in charge of determining both the law and the facts, it won't.
A jury is not a legislature. It doesn't have the information or experience to fully understand why a given law works the way it does. It doesn't consult with experts on multiple sides of the issue.
Everything looks easy from a distance, especially law. Juries have no more business deciding what the law ought to be than they have performing surgery or designing bridges.
Jury nullification is inherent in the jury system. The alternative to conceding the jury's unreviewable sovereignty is to bestow upon the State the power to punish a juror for a "wrong vote." If that doesn't terrify you right out of your skivvies, I woke up in the wrong country this morning.
BB, I agree that a jury is not the legislature -- the jury is the People. It does have the information and experience necessary to understand how the People intend to apply a law. All laws derive thier authority from the People, and therefore the People have the authority to decide when to apply the law and when to waive it.
Phelps, the jury is not the people. It is a group of the people, with no special expertise or information. They aren't chosen at random; they're chosen with various biases built into the system.
Heya Michael, long time. ;]
I agree with Porretto.
While there's a certain elegant [and vicious] logic to your proposal in the last chapter, quite frankly, the considered implications of it scare hell out of me. And they should scare hell out of any constitutionalist or libertarian.
The reason for all of the checks and balances including jury nulification - which, as Francis pointed out, is inherent in the system - is to act as a limiter on *government* power and abuse. Giving the state the power to "legally" try and punish a juror for the use of that limiter renders the limiter even more null and void than the courts have rendered it so far.
To misquote an old axiom: "It's better that a thousand just laws are nullified than that a single unjust one go unnullified". ;)
Naw. Find another route to preventing "abuse" of nullification. Or better yet - just accept that on occassion it will happen and deal with it.
Pardon my french, but - horseshit.
That kind of "leave the law to experts and to the decisions of your betters" elitist claptrap flies in the face of the entire basis of Common Law. "Common" Law is based upon what the common man can understand to be right and just, else a "jury of one's peers" is as farcial as a Kennedy discussing ethics.
If the rule of law is so fragile that it can't stand scrutiny by a panel of non-expert laymen... then the Rule of Law just ain't whut it was all cracked up to be. ;]
Ironbear: I agree that the idea of trying jurors for their verdicts is a little silly... I was mostly offering the idea as a parallel to the jury review of an unjust shooting.
Historically, many white Southerners used jury nullification to allow numerous whites to murder blacks with no accountability for their actions and no recourse within the black community. It kept blacks intimidated and caused racial rifts that are still healing.