From: Brian Davis <bdavis@thepoint.net>
Date: Fri, 13 Sep 1996 16:49:12 +0800
To: "Timothy C. May" <tcmay@got.net>
Subject: Re: Jury Nullification = Voting One's Conscience
In-Reply-To: <ae5cc281090210049385@[207.167.93.63]>
Message-ID: <Pine.BSF.3.91.960912232843.1738F-100000@mercury.thepoint.net>
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On Wed, 11 Sep 1996, Timothy C. May wrote:

> At 9:18 PM 9/11/96, Brian Davis wrote:
> >On Wed, 11 Sep 1996, jonathon wrote:
> >> On Wed, 11 Sep 1996, Gary Howland wrote:
> >>
> >> > > But the public *is* asked to assent to those methods - your chance
> >>to vote
> >> > > on them is known colloquially as "jury duty".
> >>       But judges have said that Jury Nullification is not acceptable
> >>       legal practice.
> >
> >And other judges have said the opposite.
> 
> And I don't think there has _ever_ been a case of a juror prosecuted/jailed
> for voting his or her conscience, regardless of jury instructions. Short of
> explicitly selling one's vote, or discussing the case during deliberations
> with outsiders (and probably not even then), one is essentially free to
> vote one's conscience (however foolishly, as the O.J. case showed).

Agreed.  A petit jury is when citizens have the right and power to do 
what they will.  Juries are supposed to judge the facts and, if they 
don't believe a fact necessary for one side to win, then the other side wins.

But that's not the end of it:  Lawyers play on jurors' sympathies all the 
time -- spouse and kids in the front row (crying), "mentioning" a 
defendant's extensive medical problems, etc.  The jury can accept these 
or not.  Occasionally, a jury will buy into some of that and the judge 
will be so disgusted at what *he* sees as an injustice, that he will 
lecture the jury before dismissing them.

Yes, jurors swear an oath to follow the law as the judge gives it to 
them, but jury nullification is well-established in Anglo-American 
jurisprudence.  One of my local federal district judges seriously 
considered instructing the jury on its "right to nullify" at the close of 
the case.  Obviously, he didn't care for that particular prosecution.  It 
wasn't my case, so I don't know if he ultimately instructed the jury on 
nullification, but I know the prosecutor was running around the library, 
looking for ammo to use in his argument against the instruction.

And yes, in an appropriate case, I can see myself asking the judge for 
such an instruction -- and I see myself, in effect, arguing it in closing 
in many more cases.

> 
> And the principle is a good one: jurors should not have to fear prosecution
> for voting their consciences, regardless of technical details imposed by a
> judge. And, of course, jurors are not required to give a court their
> "reasons" for voting as they do.
> 
> Though I often condemn aspects of the American political and legal system,
> it is true that an awful lot of things are done right.

Perhaps, like democracy, it is the worst system possible, except for 
every other system man has invented.  

EBD 

> --Tim May, who served _once_ on a jury (for a speeding case) in 1973, who
> was called once since then, but not actually called for a jury. (I vote
> every election, I am duly registered with the DMV, so I wonder why I have
> only served once in 24+ years of eligibility.)
....