Return to May 30, 2007 (log)

I'm supposed to do jury duty on Thursday. When I've mentioned it to people over the last week or two, most people have either asked me if I can get out of it or said, oh, that sucks. It's definitely not a very convenient time, given that things are hectic right now, both at school and at home, but my honest response is still that I don't mind. I actually take all this civic duty stuff pretty seriously, and I think that serving on a jury is a very important part of that. This is the second time I will have been called. The last time I served was almost a decade ago. I think I was 19 at the time.

In the run up to my jury service, it seems like I'm suddenly hearing about every court case with some sort of miscarriage of justice, and this has got me thinking a lot about the idea of jury nullification and under what circumstances this little-known power of the jury should be used to avoid an unjust conviction. This question is extremely unlikely to come up in the course of my jury service, but it's something I feel I should sort out just in case.

Four Cases of Injustice

Of the four cases I heard about in the last few days, the first in the list was a mild one. There was a Slashdot story about a Michigan man who got arrested and charged with a felony for sitting in his car outside a coffee shop and using their unsecured wireless network. He later plead to a much lesser charge.

The second case was something I saw on Dateline NBC (which I would normally never watch but happened to have on while cooking) about two men found guilty of murder based on flimsy evidence and later exonerated by DNA evidence and two other men who seem to have been convicted in the same town under similar circumstances. Apparently the story of the first two men was documented in John Grisham's true-crime novel The Innocent Man.

Third was the case of a racial feud started at a high school when some black students attempted to sit under a tree on their school campus that had traditionally been a whites only area. Some white students apparently responded by hanging several nooses in the tree. In the ensuing incidents (which occurred over a matter of days or weeks) black students were systematically charged with harsh penalties while white students were let off with little or nothing (even when one pulled a gun on some people).

Finally, there was the story of a 17 year old high school student in Georgia who got a felony conviction, 10 years in prison, and a spot on the sex offender registry for getting a blowjob at a drunken party from a 15 year old girl. By her own account (and video footage taken by another kid at the party) the act was entirely consensual. The harsh punishment is thanks to the fact that these under aged kids had oral sex. If this boy and girl has simply had sex the penalty would have been far less. A kid's promising life is destroyed for a probably fairly common action with no clear victim.

This case is in a way the most distressing, because it seems that there's evidence that even the jury thought the law was unjust, but they knew that this boy had violated the letter of the law, so they found him guilty. Presumably the jurors felt trapped. My guess is that they did not know about jury nullification. Most people don't.

Jury Nullification

Jury Nullification occurs in a case when, according to the facts presented and the instructions of the judge on the law, a defendant is guilty, but the jury finds him not guilty anyway. It's basically just a fact that juries have this power, because a juror cannot be punished for his verdict and the double jeopardy clause of the fifth amendment prevents a person from being tried again after the verdict is in. The end result is that the jury can find however they want, and once a not guilty verdict is entered there's nothing anyone can do to fight it. The question is whether jurors should use this power.

I guess there are two questions related to jury nullification:

  1. Should jurors take it upon themselves to interpret the law even if their interpretation contradicts that given by the judge (e.g. with respect to constitutional rights)?
  2. Should a juror reject the law completely when he feels that applying it would be unjust (either generally or in the specific case at issue)?

My answer to the first is an unambiguous yes. Clearly, if you're on a jury you should respect that the judge is a legal expert who generally knows a lot more about law than you do, but you have to take a judge's instructions as one piece of evidence in figuring out what the law means. It's certainly possible for judges to be biased or just plain wrong, and ultimately it doesn't seem to make sense to hold citizens accountable for following the law unless citizens can also judge the law. This viewpoint seems to have considerably historical support; a number of Thomas Jefferson quotations suggest that the he felt the jury should generally defer to the judge on questions of law but that ultimately the authority was with the jury. That seems like an eminently reasonable position.

The second question, whether a jury should throw out the law when it's unjust, is a bit harder. On the one hand, most of us agree that, I was just following orders is not an excuse for participating in clearly immoral acts. History provides us with many cautionary examples here. But, on the other hand, it would completely undermine the rule of law if juries routinely handed down verdicts based on their feelings about the case rather than the laws. In that sort of a system your verdict would have less to do with what you did and more to do with the luck of the draw in jury selection. So what's the happy medium between these two extremes?

The history of jury nullification seems to be mixed as well. Examples include northern juries refusing to convict people for helping runaway slaves but also white southern juries during the civil rights era that refused to convict white supremacists of their crimes. Apparently, another case where jury nullification is considered to have been widely practiced was during prohibition.

If you accept the idea (seen in both the Declaration of Independence and the Constitution) that people have certain inherent, unalienable rights that no government has authority to violate, then I think it makes sense that jury members refuse to enforce any law that they believe violates fundamental human rights. These would include rights specifically protected in the Constitution but also other rights they believe are self-evident.

But it seems there will be other cases where there's no clear fundamental right that's being violated and yet justice isn't being done. To borrow from my earlier examples, what if that Michigan man were really brought to trial on felony charges with a 5 year prison sentence for using a coffee shop's wireless. He has no fundamental right to leech off someone else's wireless, but still this seems like a clear miscarriage of justice. What about using jury nullification in this sort of case? Ultimately, you're the one returning the verdict, so the responsibility for that verdict, for justice, rests with you. But it seems like there's a significant risk of letting your personal preferences and prejudices replace the law. Still, it can't in any meaningful sense be a government by the people if the people are not the ultimate arbiters of the law.

I think the middle ground is probably that jury nullification should be used only in cases where someone's fundamental rights or the basic precepts of justice (including some sense of proportion between the charge and the crime) are being violated and not in cases where you simply disagree on details of the law or its application. But it's something I'm still not completely decided on.

I looked at a number of sites about jury nullification, hoping to find some insight.

Unfortunately, while interesting, I can't put a whole lot of stock in any of them. I was hoping to find some stuff written by legal experts weighing the issue, but mostly what I found seemed to be one-sided opinion pieces. I get the impression from the sites that this is a hot topic among Libertarians.