Sotomayor Sees Larger Role For Jury Nullification

Don · Feb 11, 2016

Law360 has the story.

Supreme Court Justice Sonia Sotomayor said Monday that the Second Circuit's harsh view of jury nullification may be wrongheaded, and that there is a place for juries to make findings that contradict the law — a topic that came up in the context of Sen. Claire McCaskill's recent jury service.

Speaking to a packed auditorium at the New York University School of Law on Monday afternoon, Justice Sotomayor said juries are sophisticated organisms that could benefit from being aware of the option of nullification.

More coverage here.

This week Supreme Court Justice Sonia Sotomayor had some kind words for jury nullification, which empowers jurors to judge the law as well as the facts of a case and may involve disregarding the law when the law is unjust.

Is Justice Sotomayor right, or should juries be restricted to judging only the facts, and not the law, as has been the recent practice? Should those attempting to inform juries of their right of nullification be arrested for jury tampering and obstruction of justice? At least one District Court Judge has come down on Sotomayor's side in recent times.

robeiae · Feb 11, 2016

I don't think what McCaskill said represents a form of jury nullification.

And I don't think Sotomayor is right. Jury nullification is going to happen from time to time. But it's not something that needs to be expanded, that needs to be pumped up as an option as a matter of course. That's the idea that is wrongheaded here.

Hapax Legomenon · Feb 11, 2016

You know, I'm not sure. Once could certainly say that the way of jury nullification lies chaos. On the other hand, there are some damn stupid laws out there.

Shadow Dragon · Feb 11, 2016

Hapax Legomenon said:
You know, I'm not sure. Once could certainly say that the way of jury nullification lies chaos. On the other hand, there are some damn stupid laws out there.

Like most things it's best in moderation. It's a good option to have, but I don't want to see it used too often and done for arbitrary things (like thinking the plaintiff is a jerk, or just liking the way the defendant looks).

Roxxsmom · Feb 11, 2016

I'd agree it's something that could be used in an "if all else fails" situation, as when there's an extremely unjust or stupid law, the kind that's on the books but never invoked except to harass people.

The problem is, we're a pretty pluralistic country, and we're not likely to agree which on laws are unjust or stupid. This protects us against the likelihood of jury nullification in most cases, but it's possible for a stacked jury, or one that's drawn from an unusually homogeneous community, to do this when the law isn't stupid or unjust at all.

It's definitely a two-edged weapon. I don't think it's something we should want to see more of. At the very least, it would be yet another symptom of how broken and disconnected we are from each other.

Hapax Legomenon · Feb 12, 2016

Shadow Dragon said:
Like most things it's best in moderation. It's a good option to have, but I don't want to see it used too often and done for arbitrary things (like thinking the plaintiff is a jerk, or just liking the way the defendant looks).

Right. You get stuff like, "this eighteen-year-old and this sixteen-year-old had sex, which is against the letter of the law in this state, but we don't want to convict and have this eighteen-year-old labeled as a sex offender for life and have the sixteen-year-old live with the fact that this came to the attention of the cops because they were bragging and their parents found out" to "this person clearly murdered this other person, which is against the letter of the law of this state, but we don't want to convict because the victim was a part of *insert locally reviled group here*".

The system is totally broken.

Don · Feb 12, 2016

Hapax Legomenon said:
Right. You get stuff like, "this eighteen-year-old and this sixteen-year-old had sex, which is against the letter of the law in this state, but we don't want to convict and have this eighteen-year-old labeled as a sex offender for life and have the sixteen-year-old live with the fact that this came to the attention of the cops because they were bragging and their parents found out" to "this person clearly murdered this other person, which is against the letter of the law of this state, but we don't want to convict because the victim was a part of *insert locally reviled group here*".

The system is totally broken.

Right. And since we know that people in general are highly irrational, yet judges are schooled in jurisprudence and fairness, it's best to keep the power in the hands of the ruling class and keep those actually subjected to the laws from passing judgement on the laws themselves. If they don't like the laws, they need to vote for some other member of the ruling class next time they're allowed to vote.

Justice Sotomayor said juries are sophisticated organisms that could benefit from being aware of the option of nullification.

Apparently Justice Sotmayor has more faith in the great unwashed masses than many of the great unwashed masses do.

robeiae · Feb 12, 2016

Meh. Again, it's going to happen. Jury nullification is not some great secret being kept from people. But supposing it's something about which people need to be educated, that it should be automatically presented to juries as a viable option, that is wrongheaded and extremely so, imo. Because it would result in far more arbitrary verdicts, in some action being a crime for one person and not for another, not because of different circumstances, but because of different moods in the juries.

This isn't about sophistication or not having faith in people, it's about simple common sense and the need for reason to generally supplant emotion, when it comes to legal decisions.

Hapax Legomenon · Feb 12, 2016

Nah, I think we've got to make it so the people can review and decide on what laws are fair and not and the people need to be able to do things like change/get rid of laws because otherwise it's just legislators making an ever-more-complex legal code based on the assertion that they're "tough on crime", leading to more and more and more prosecutorial discretion, but I don't know if juries are the right place to do this. If you really do think the first case is a good case for jury nullification, well, the problem is that it does nothing to help the next defendant in the same situation. It's a bandaid solution to a bigger problem.

darkprincealain · Feb 17, 2016

Maybe I don't understand jury nullification, but I don't think what McCaskill said represents a component of it, actually.

I was on a jury once years ago, and unbeknownst to me we actually did do jury nullification. So I don't know that in being "hidden" or whatever is alleged here, it isn't being performed.

ShaunHorton · Feb 17, 2016

I don't know, I could see jury nullification being one of those things people should definitely be made aware of. It may be the path to chaos, but if it's restricted in what it takes to use it, I don't see it as being too big of a problem.

I think there is currently a huge societal divide between the people and the lawmakers, and something like this would put some of the balance back in the hands of the people. Especially right now, in some states where lawmakers are STILL trying to outlaw gay marriage and abortion, among other things. Lawmakers seem to have more the attitude "I know what's best for the people, even if they don't know it themselves" rather than, "I'm here to push forward the will of the people who sent me here".

MythMonger · Feb 17, 2016

I view jury nullification as one of those all important "checks and balances" in our judicial system. It's very easy for legislatures to impose minimum sentences that are out of proportion to the crime, and it's easy for a DA to prosecute based on the letter of the law and not the intent. Jury nullification is a protection against those kinds of abuses.

MarkEsq · Feb 17, 2016

Let me give two examples of why I am very leery of letting (usually defense) lawyers argue for jury nullification in an explicit way. Or, put another way, why I feel that it's important jurors are required to follow the law when they decide cases.

Example one is the first jury trial I lost. A felony DWI case, where the defendant was plainly drunk. You could see and hear him on the police video, crying, laughing, arguing, and then snoring. Hammered. And the jury agreed. And found him not guilty. See, they didn't like the arrogant cop (and yes, he sure was). I talked to them afterward, and one juror said, "He's not going to get away with it, right?"

I said, "If you're not happy with the police officer, you are welcome to make a complaint."

"No," he said. "The defendant. He was clearly drunk. He's not going to get away with it, is he?"

Me, dumbfounded: "He just did."

So, a habitual drunk gets back in his car and off we go...

Example two relates to something called the "one-witness" rule. That rule states that a prosecutor does not have to put on more than one witness, and that if a jury believes a single witness beyond a reasonable doubt then he or she should find the defendant guilty. This situation most often comes into play in rape cases: as I ask the jury panel, "Who's usually present when there's a rape?" Just the victim. And if the defendant claims consent, the only witness is ever going to be the victim.

So, after the law is explained in voir dire, I ask if there's anyone who cannot follow the rule. If there's anyone who needs a second witness, or requires DNA or some other physical evidence. Those people (and not many pipe up) are excluded from the jury. Later, during closing arguments, I will remind the 12 seated jurors that they told me they could follow that rule, that if they believed the victim beyond a reasonable doubt, that's enough evidence to convict.

Now, if jury nullification becomes, essentially, another affirmative defense then after I sit down the defense counsel would be allowed to stand up and say, "Hey, sure you swore and oath to follow the law, and sure the prosecutor's right about the one-witness rule. But come on, they need to provide more than one witness. Even if you believe her beyond a reasonable doubt you shouldn't convict a man based on just one person's testimony..." etc etc.

Trust me, convictions for sexual assault are hard enough to obtain without this added burden.

Also, as an extreme example, remember that if you open the door to jury nullification then there's no way to control it: a defendant can be acquitted because he's white and the victim's black (or vice versa). Or maybe the victim is "just" a prostitute and she was asking for it.... you get the idea.

Don · Feb 17, 2016

Mark, that seems to be an argument from perfection. The question isn't really whether there would be miscarriages of justice if jurors were empowered by knowledge of jury nullification, but if, on balance, the justice system would be more just.

I don't think anyone would care to argue that the system as it works today is free of such miscarriages. P&CE alone provides ample evidence of that.

robeiae · Feb 17, 2016

But jurors have knowledge if jury nullification, they have freewill, and they have--hopefully--working brains. There's no "more just" at stake here, just an ill-conceived statement by someone who really ought to know better.

cmhbob · Feb 17, 2016

robeiae said:
But jurors have knowledge if jury nullification...

I bet you'd be disappointed but not surprised by how many people DON'T know what JN is. I've heard (anecdotally) of attorneys and nullification activists both being spanked by judges for bringing the subject up, either during trial or deliberations. People have been escorted from courthouses or charged with contempt just for trying to pass out JN education fliers.

http://www.activistpost.com/2013/02/jury-nullification-activist-jailed-145.html

http://www.cato.org/blog/jury-nullification-free-speech

Don · Feb 17, 2016

robeiae said:
But jurors have knowledge if jury nullification, they have freewill, and they have--hopefully--working brains. There's no "more just" at stake here, just an ill-conceived statement by someone who really ought to know better.

But jurors, for the most part, don't have knowledge of jury nullification, and being allowed to inform them of jury nullification has faced a long legal battle. See the links in the OP about people being arrested for trying to pass basic information about jury nullification to people entering courthouses who might possibly end up on a jury.

I think the conservative and elitist position is to continue to withhold this information from potential jurists, for fear the unwashed masses might upset the apple cart.

Of course, if the public is that stupid, why the hell are they allowed to vote?

Shadow Dragon · Feb 18, 2016

cmhbob said:
I bet you'd be disappointed but not surprised by how many people DON'T know what JN is. I've heard (anecdotally) of attorneys and nullification activists both being spanked by judges for bringing the subject up, either during trial or deliberations. People have been escorted from courthouses or charged with contempt just for trying to pass out JN education fliers.

http://www.activistpost.com/2013/02/jury-nullification-activist-jailed-145.html

http://www.cato.org/blog/jury-nullification-free-speech

I do think there needs to be a new law about this specifically saying that lawyers are allowed to talk about jury nullification in their closing arguments. It should also be taught to high school students in a civics class.

robeiae · Feb 18, 2016

cmhbob said:
I bet you'd be disappointed but not surprised by how many people DON'T know what JN is. I've heard (anecdotally) of attorneys and nullification activists both being spanked by judges for bringing the subject up, either during trial or deliberations. People have been escorted from courthouses or charged with contempt just for trying to pass out JN education fliers.

http://www.activistpost.com/2013/02/jury-nullification-activist-jailed-145.html

http://www.cato.org/blog/jury-nullification-free-speech

Don said:
But jurors, for the most part, don't have knowledge of jury nullification, and being allowed to inform them of jury nullification has faced a long legal battle. See the links in the OP about people being arrested for trying to pass basic information about jury nullification to people entering courthouses who might possibly end up on a jury.

I think the conservative and elitist position is to continue to withhold this information from potential jurists, for fear the unwashed masses might upset the apple cart.

Of course, if the public is that stupid, why the hell are they allowed to vote?

Look, being fixated on the concept here is a real problem, imo. People get the jury process for the most part, they really do. And they know they are making decisions in that jury room.

Just because no one is saying "jury nullification," it doesn't mean it isn't happening or can't happen. It's not really some inscrutable thing.

And sorry Don, but you're the one with no faith in the masses, the one who thinks they aren't sophisticated or intelligent.

And again, the larger point here is that increased use of jury nullification as a process means more arbitrary decisions, means something being a crime one day and not the next, or in one place and not another, or for one person and not for another, based not on different evidence, but based on different juries. How the hell is that a Good Thing? Explain it to me, because so far no one is doing that, they're just blustering.

MarkEsq · Feb 18, 2016

robeiae said:
And again, the larger point here is that increased use of jury nullification as a process means more arbitrary decisions, means something being a crime one day and not the next, or in one place and not another, or for one person and not for another, based not on different evidence, but based on different juries. How the hell is that a Good Thing? Explain it to me, because so far no one is doing that, they're just blustering.

I think this would be my concern. What you'd end up with, as Rob says, is a system where the law (supposedly passed by our loving representatives) is allowed to be ignored... just 'cos. Which means arbitrary decisions, there's no other way to say it.

And yes, jurors do know about jury nullification already, even if they're not bandying around the term. Look at my DWI trial, above, a classic example.

Again, as Rob asked, what are the specific benefits of allowing defense attorneys to argue in favor of it?

Shadow Dragon · Feb 18, 2016

MarkEsq said:
I think this would be my concern. What you'd end up with, as Rob says, is a system where the law (supposedly passed by our loving representatives) is allowed to be ignored... just 'cos. Which means arbitrary decisions, there's no other way to say it.

And yes, jurors do know about jury nullification already, even if they're not bandying around the term. Look at my DWI trial, above, a classic example.

Again, as Rob asked, what are the specific benefits of allowing defense attorneys to argue in favor of it?

Well, it guarantees that the people in the jury understand it, and since it is a legal move for the jury there's no reason for a lawyer to get in trouble for mentioning it.

MythMonger · Feb 18, 2016

And again, the larger point here is that increased use of jury nullification as a process means more arbitrary decisions, means something being a crime one day and not the next, or in one place and not another, or for one person and not for another, based not on different evidence, but based on different juries. How the hell is that a Good Thing? Explain it to me, because so far no one is doing that, they're just blustering.

I fail to see how jury nullification is arbitrary. It's a deliberate decision reached by one jury for one case. That's the opposite of arbitrary.

It's a good thing because it's possibly the only time in the entire judicial process where the defendant isn't facing people whose livelihoods aren't benefited by the outcome of the case.

The police are graded on how many people they arrest. You're innocent? Tell that to the jury.

The DA is graded based on how many convictions they successfully prosecute. Want to get promoted? Want to become a judge? Want to run for office? Show us your conviction rate.

The Judge is graded... OK I don't know how the judge is graded in individual cases. They have to run for reelection in many areas, though. Most of them will want an appointment to a higher court. My point is, they have something to lose.

The jury is different. They don't have the same skin in the game. Sure, there may be times when the jury makes idiotic decisions, both to convict and acquit. They may have to live with their decisions in unimaginable ways, like the drunk driver they released. Maybe that drunk driver goes on to kill someone. But the jurists' careers don't hinge on their decision. Outside of a very few high profile cases, they're not going to make any money off their decision.

Juries are as impartial a party in the entire judicial process as you can get. And if they choose jury nullification, I'd trust their decision over just about anyone else's in the entire process.

MarkEsq · Feb 18, 2016

MythMonger said:
I fail to see how jury nullification is arbitrary. It's a deliberate decision reached by one jury for one case. That's the opposite of arbitrary.

It's arbitrary because it's not based on the law.

MythMonger said:
It's a good thing because it's possibly the only time in the entire judicial process where the defendant isn't facing people whose livelihoods aren't benefited by the outcome of the case.

Please explain. How is a judge or prosecutor "benefited by the outcome of the case"? I get paid the same no matter the outcome, so does the judge. Are you suggesting all judges and prosecutors frame innocent people for... some reason? If so, evidence please.

MythMonger said:
The police are graded on how many people they arrest. You're innocent? Tell that to the jury.

No, they're not. Not in my jurisdiction. You have any evidence to the contrary?

MythMonger said:
The DA is graded based on how many convictions they successfully prosecute. Want to get promoted? Want to become a judge? Want to run for office? Show us your conviction rate.

Incorrect. I should know, I am one.

MythMonger said:
The Judge is graded... OK I don't know how the judge is graded in individual cases. They have to run for reelection in many areas, though. Most of them will want an appointment to a higher court. My point is, they have something to lose.

By being fair and impartial? Really?? At least you admit you don't know "how the judge is graded in individual cases," because it's a nonsense suggestion.

MythMonger said:
The jury is different. They don't have the same skin in the game. Sure, there may be times when the jury makes idiotic decisions, both to convict and acquit. They may have to live with their decisions in unimaginable ways, like the drunk driver they released. Maybe that drunk driver goes on to kill someone. But the jurists' careers don't hinge on their decision. Outside of a very few high profile cases, they're not going to make any money off their decision.

So you're OK with them making idiotic decisions to convict? I'm a prosecutor and I sure as hell am not. That's why we have law!

MythMonger said:
Juries are as impartial a party in the entire judicial process as you can get. And if they choose jury nullification, I'd trust their decision over just about anyone else's in the entire process.[/COLOR]

You're welcome to your opinion, of course.

MarkEsq · Feb 18, 2016

Here's another issue that occurred to me with allowing lawyers to explicitly argue jury nullification. Remember, that means a lawyer will be saying: you can ignore the law, you don't have to follow it.

Also bear in mind that traditionally jury nullification means that someone is acquitted when they are technically guilty. But, if one lawyer can argue that so can the other.

Right, so we have a trial and the prosecution presents weak evidence on one of the elements. Legally insufficient evidence. The defendant looks and acts like a jerk, though, so the jury goes ahead and convicts him. Normally, the defense would appeal on that piece of legally insufficient evidence, and get the conviction over-turned. But now the prosecutors can argue jury nullification, can't they? That seems pretty disturbing to me...

Xelebes · Feb 18, 2016

Nullification advocacy seems a rather roundabout and incorrigibly inconsistent way of reducing the number of folks heading to jail. Why not advocate to the legislature and the judicial system figure out a way of reforming their correction systems?

Sotomayor Sees Larger Role For Jury Nullification

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