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« Red Sox 2007 | Main | United 93 DVD » August 30, 2006NullificationRadley Balko is engaged in a small blogospheric set-to with Patterico about jury nullification. Jury nullification is the idea that a jury should acquit people charged under unjust laws. Balko offers some examples most people would agree with, such as an individual charged under a Jim Crow-type law, as well as some more contentious issues like someone convicted on federal charges for marijuana possession when the state where that person resides has legalized possession. There are two issues involved with nullification: whether or not it is a valid doctrine, and whether or not it is acceptable for jurors to lie about their willingness to use it. In the first case I come down firmly in favor of nullification. Government at all levels continues to burden us with a host of foolish and unnecessary laws, and because the problem is so widespread, it is all too easy for people not to notice and therefore not to raise the issue to their elected representatives in hopes of eliminating those laws. Juries willing to make a statement by acquiting people not because they are not guilty, but because the law they have broken is unjust, is an excellent means of reproaching the government for its overreach. It is on the second question where I have trouble agreeing with Balko. While I would certainly not volunteer my willingness to fight for acquital in a case where I felt the law was wrong, I do not believe I could, in good conscience, lie during voir dire if asked. It seems like an easy thing to say, since I am firmly of the belief that speaking the truth is the proper course of action in all things, but this is a more difficult case. If you admit to the prosecutor that you're willing to utilize the power of nullification, he'll perempt you in a heartbeat (as he should, since his job is to win the case). But nullification is a valid tool for fighting unjust laws, and by asking such a question the prosecutor is undermining that tool. So there is a case for lying here, I think. I'm just not sure I'd be willing to do it, despite thinking that Radley is probably right. It's an interesting, if difficult, question. So I'll throw it out to you: if you're called for service in a case that involves a law that you believe is unjust, would you be willing to acquit an obviously guilty person? Would you be willing to lie in order to get onto the jury? Posted at August 30, 2006 06:39 PM
Comment policyI apologize for only allowing authenticated commenters, but comment spam overwhelms the site if I don't use those measures to prevent it. I reserve the right to delete any comment, although generally comments will only be deleted due to use of profanity or personal attacks on people. I have no objection to vigorous argument, but when name-calling begins, I'm putting a stop to it. In the immortal words of Eugene Levy, "People, people, let's stop this before somebody says something untrue!" If you want to call people names, I recommend you get your own blog. Trackback PingsTrackBack URL for this entry: CommentsWell, Balko's list of all the things he'd be ready to nullify gives me pause -- seems to me that he goes far beyond the exceptional case and is wanting to consistently substitute his own judgment for that of the legislators. I'll agree that there's a role for nullification in cases of extreme injustice, but I don't think it would be good for the system if jurors felt comfortable in just ignoring any law that didn't strike their fancy. As to whether nullification actually violates the oath that jurors swear, I think that's yet to be demonstrated -- one of Patterico's commenters points out that juror instructions don't explicitly forbid nullification so much as they simply avoid mentioning it. And re truthfully answering a lawyer's question about nullification in voir dire, I wonder how often that gets asked and exactly how it's worded -- presumably most people would be open to nullification in extreme cases, so perempting everyone who doesn't answer "no, never" might shrink the jury pool drastically. If the lawyer says something like "apart from extreme cases", then it comes down to one's personal definition of "extreme" and you get some wiggle room. Posted by: kenB at August 31, 2006 01:05 PM Our system of justice is out of control and those who run it have no interest in correcting it. Therefore, I would have not problem lying to them because I am confident they will be lying to me. Posted by: Ron Goodwyne at September 3, 2006 07:53 PM Post a commentThanks for signing in, . Now you can comment. (sign out) (If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.) |
