Posted by lex, on August 16, 2008

There’s an interesting legal discussion going on over at Eugene Volokh’s place, having to do with a problematical juror who declined to sit down and do as he was told by the trial judge:

It was supposed to be just another federal drug prosecution. The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade. The defense attorney said the government agents entrapped his client. And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened. The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?”

The juror declined the judge’s admonition to vote the facts of the case, insisting his right to also judge the law – as indeed, was intended by the Founders. For this he was removed and an alternate selected after the case had been sent to the jury for a decision.

There is little question that, at the Founding, jurors were triers of both the law and the facts. In essence, this provided a popular check on an overreaching legislature and a supine judiciary, although a check that would only operate on a case-by-case basis. A jury could find that a statute was unjust generally, or only as applied in the particular case. This would affect the general enforceability of a statute only if many juries agreed. Although juries retain the power to refuse to apply an unjust law, beginning in the Nineteenth Century, judges started prohibiting lawyers from advocating this to a jury upon pain of contempt.

Jury nullification has been in bad odor over the last century, mostly because of a marked hesitancy of white southern jurors to convict white men who had been accused of crimes against blacks. The OJ Simpson trial result may indicate that the reverse has also become true.

The concept goes back centuries, however. As the “problem juror” points out, jurors are not sworn to test only the facts of the case, but also the law. A result of “guilty” or “not guilty” is a moral judgement as much as a factual one – facts are not “guilty”, they are proven.

In Scottish law, jurors traditionally were empowered to vote “proven” or “not proven” of the facts as the Crown had represented them but – in response to a patently unjust application of the law in 1728, insisted upon an ancient right of “not guilty”, which is even now their third option.

In a notable trial in 1728, a defence lawyer… persuaded a jury to reassert its ancient right of acquitting, of finding a defendant “not guilty”. The case involved Carnegie of Finhaven who had accidentally killed the Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of “proven” or “not proven” depending on whether they believed the facts proved the defendant had killed the Earl. However if the jury brought in a “proven” they would in effect cause this innocent man to hang. To avert this injustice, the jury decided to assert what it believed to be their “ancient right” to judge the whole case and not just the facts, and brought in the verdict of “not guilty”.

The (re)introduction of the “not guilty” verdict was part of a wider movement during the 16th and 17th century which saw a gradual increase in the power of juries, such as the trial of William Penn in 1670, in which an English jury first gained the right to pass a verdict contrary to the law (known as jury nullification).

This is an interesting conundrum: Obviously things fall apart if solitary jurors are left free to derail law enforcement through their own Constitutional interpretations. But as a commenter at Volokh point’s out, the “consent of the governed” means more than just electing representatives. It means that laws can only be enforced with the consent of the citizenry, a consent the jury is empaneled to offer or withhold.

Or else, why bother?

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One response to “Nullification

  1. Pingback: Index – The Rest of Neptunus Lex | The Lexicans

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