Ken Womble — The Pandora’s Box Of Jury Nullification

It is tempting to see a rule allowing jury nullification that would, by definition, provide an avenue for acquittal where one did not previously exist. As a defense attorney, I would want this avenue for my own clients 100% of the time.  But would inviting selective application of this law further the interests of justice?

Throughout history, law enforcement and the courts have often failed to provide adequate equal protection under our laws. Minorities, especially black Americans, have experienced a much clearer path into the criminal justice system than their white counterparts. Once in the system, institutional racism has punished minorities more harshly than similarly situated whites.

Mimesis Law — The Pandora’s Box Of Jury Nullification

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31 thoughts on “Ken Womble — The Pandora’s Box Of Jury Nullification

  1. Beyond the equal protection implications, this law would open up a Pandora’s box of admissibility. If jurors are told they may consider a “just outcome” instead of the current assessment of whether the elements to a crime have been proven beyond a reasonable doubt, evidence relevant to that question becomes almost unlimited. The central question of guilt can become lost.

    This is an interesting consideration.

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    • Jury nullification isn’t normally a formal part of the judicial system at all. It’s a result of the constitutional rule against double jeopardy. Once a jury has acquitted a defendant in a criminal trial, no matter how strong the evidence against that defendant was, there is no way to re-try the defendant for that crime or correct an error that the jury made (nor should there be).

      But in theory the jury’s job is to make a finding of fact: did the defendant do what the indictment alleges he did? If the jury agrees that the defendant did it but acquits anyway because they don’t like the law, don’t like the victim, do like the defendant, etc. etc. etc., that’s jury nullification.

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    • No, it’s the court entering the correct order after a jury has reached a result that lacks any evidentiary support whatsoever. Appellate courts look really hard for reasons to justify a jury’s verdict and it takes a very significant demonstration to get a court to overrule a jury. The deference is very strong, albeit not absolute.

      My fundamental objection to jury nullification is that a jury finding that a law is itself unjust is anti-democratic. The degree to which Justice is embodied within a law is fundamentally the province of a legislature. (This is not the same thing as a judge or group of judges finding a law unconstitutional because that is a finding that a superior level of law contradicts the law in question, and that is an inherently judicial activity). A jury is not a legislature nor is it the electorate, and lacks the political power to repeal or override the legitimate representatives of the electorate.

      In other words — I think the law criminalizing the consumption of marijuana is a bad idea, and the breeding ground for a wide spectrum of injustices. If I were on a jury, though, that’s irrelevant. I have to decide “was he defendant consuming marijuana or not?” and I would not hesitate to find the defendant guilty of the crime charged even though I strongly believe it ought not be a crime at all.

      A jury simply disbelieving the testimony of a given witness, even one who testifies without contradiction, well, that’s another story. That’s not nullification, in my estimation. It’s a finding of fact, which is what a jury is supposed to do.

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      • “My fundamental objection to jury nullification is that a jury finding that a law is itself unjust is anti-democratic.”

        Well given how a lot of laws are currently made by bureaucrats with no accountability to the electorate, I really don’t see the practical difference, with the exception that the jury, being essentially, the employers of the gov’t, SHOULD have final say on any law. Nullification just gives them the ability to cut through the red tape and take better direct action.

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      • Burt,

        I have potential objections to nullification, but its being undemocratic is not one of them. In part because, what’s so great about “democratic” when other people’s life and liberty are on the line? As suggests in his comment, the legislature is not necessarily very responsive to the people, even though it’s the most “democratic” branch of our government. At any rate, if the New Hampshire bill passes, then it is the legislature itself granting that power to juries, or at least acknowledging what some juries in practice already do, and thereby perhaps encouraging the practice further. If justice is the province of the legislature, why can’t the legislature “justice” as being constituted in part by jury nullification?

        And even though jury nullification is non-democratic in the senses you describe, it’s pro-democratic in another sense. It’s a check that ordinary citizens can exercise against the state. That check can result in unjust outcomes–which is one reason why I hesitate to endorse it fully–but it can also result in “just” outcomes.

        To another point:

        In other words — I think the law criminalizing the consumption of marijuana is a bad idea, and the breeding ground for a wide spectrum of injustices. If I were on a jury, though, that’s irrelevant. I have to decide “was he defendant consuming marijuana or not?” and I would not hesitate to find the defendant guilty of the crime charged even though I strongly believe it ought not be a crime at all.

        What if the punishment for consumption was the death penalty? That’s an unfair example, and perhaps a robust respect for the law requires a juror to find guilt on the facts even in that extreme case. But I do think some laws can be so unjust, or the punishment can be so unjust, that I’m not willing to completely reject jury nullification.

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          • Why have a legislature? Checks & balances. Since neither the courts nor the legislatures have explicitly forbid jury nullification, & the founders weren’t so concerned about a jury usurping the will of the legislature that they bothered to put it in the Constitution, then it exists as one of those unspecified rights for a reason.

            Prosecutors have the ability to usurp the will of the legislature, as do judges. And yes, their power to do so is explicit and is often misused for toward unjust ends. Why does jury nullification get all the hate?

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          • We can take that even further and ask why grant pardoning powers to the executives? Or as Oscar suggests, why have prosecutorial discretion? Why give judges discretion to sometimes “temper justice with mercy”? Maybe you’re against those things, too, but accede to them because of common practice and constitutional (in the case of pardons) powers. Still, they suggest that in our current system, it’s not only the legislature that now holds the sole authority to define and set what is just.

            Or we can take that another direction and say “why not both jury nullification and legislatures?” There was a time when England had parliament, royal prerogative, courts of equity, and something like jury nullification (e.g., refusing to condemn people to death for the crime of hunting on the “king’s” land). It’s not unheard of to have competing systems of authority. That may or may not have worked out too well in a lot of cases–and I’m loathe to appeal to what’s happened as good just because it has happened–but it does suggest a polity can live with competing founts of “justice.”

            But I’ll answer your question directly. We have legislatures create the laws in an open forum. Provided those laws don’t intrude on the organic law limiting the legislatures’ purview (or don’t represent an arrogation of the powers granted to the legislatures by the organic law), those laws are presumed to be operative and in force.

            We’d have jury nullification to provide one check against the legislature going overboard in the one instance when the actions of the legislature results in the state acting against the citizen(s) whom it accuses. (I’m leaving undiscussed the issue of jury nullification in civil cases, because that doesn’t seem to be at issue in the NH law.) Jury nullification in that case makes it more difficult to convict someone–i.e., to take away someone’s property, life, or liberty–for violating that law.

            Jury nullification wouldn’t be a plenary meeting of THE JURY to opine on various and sundry laws the legislature passes. An instance of nullification doesn’t actually nullify the law for all time and all applications, but only for that one instance. Now, frequent instances of jury nullification could have that effect, which would in turn have the effect of repealing that law.

            And I admit that could create a lot of mischief. For example, if allowing judges to instruct juries to consider a just outcome results in white people being more marginally likely to get acquitted when they assault black people, and therefore results in more attacks on black people–that would be one heckuva a mark against jury nullification. It’s one reason I’m wary of it.

            For what it’s worth, the “why have legislatures” question doesn’t quite address the New Hampshire case. The NH bill would be an act of the legislature. If the legislature grants the power, do you still have a problem with it? (I imagine Damon might because it presumes the power is the legislature’s to grant, and as I read his comments, he doesn’t concede that point.)

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            • There was a time when England had parliament, royal prerogative, courts of equity, and something like jury nullification

              I should have, but didn’t, mention that for all I know, jury nullification back then was as informal and officially unrecognized as it is now, so it wasn’t on par with parliament, royal prerogative, etc.

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  2. Jury nullification is giving the jury the same discretion as the prosecutor.

    Depending on how you feel about prosecutors exercising this discretion, you’re likely to come up with scenarios that will strike you as this being a very good counter-balance or come up with scenarios that will just amplify how bad an idea it is to allow for discretion at all.

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  3. Jury nullification has a lot of potential for misuse. The thing is that we are still dealing with many prosecutors who are either not exercising their discretion and trying to convict the entire world. We really need to end the war on drugs, stop having sex crimes statues applied against teenagers, and having children tried as adults among other abuses of prosecutorial and police power. For al its faults, jury nullification is still one of the most powerful tools to do so.

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