Via the usual source, we are directed to a Randy Barnett post over on VC, which in turn discusses Juror Becomes Fly in the Ointment. The key passage, largely ignored in subsequent discussion, is (emphasis added):
Once discovered, that juror was replaced with an alternate–over the objections of defense counsel. Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.
In other words, the guy persuaded no one else of the validity of his position; if anything, it made the rest of the jury just want to get it over with as fast as possible.
To underscore the point, back at the Volokh Conspiracy, a commenter refers us to Who is Tom Eddlem? and ‘Rogues’ and Humpty Dumpty Judges. Nearly any randomly-selected juror trapped in a room with this guy would want nothing more than for him to either shut up or leave.
So as a practical matter, as long as the concept of jury nullification — which I generally support — is being promulgated by such people, it will get nowhere. For some tips on how innovations can be successfully diffused, see this review. Jury nullification hits a wall at step 2.
As VC commenter David M. Nieporent says, nullifiers are “unwilling to admit that the battle for public opinion is all that matters” — which is unsurprisingly followed by the tellingly pseudonymous “Malvolio” heaping scorn on the public for its failure to follow his/her lead in supporting nullification.
NB: comments to this post attempting to persuade me of the validity of jury nullification will be summarily mocked as having egregiously missed the point. I’m already a nullifier. I think Randy Barnett and Clay Conrad are great guys (I knew Clay slightly when I lived in Texas in the ’90s). But too many of friends like the ones it’s got are the kind that keep it from needing enemies.
Now to break an elementary rule of posting by mixing topics. Commentary over on VC is heavily biased toward arguing the principles, or lack thereof, behind jury nullification as a concept. There is, however, one comment by Orin that I cannot resist mentioning, because it gets into an area rarely discussed in the context of courtroom operations … statistical quality control:
… if juries are given unlimited power to nullify by majority vote, 1 in 5 people can expect to be acquitted even if 2/3rds of the population supports the law in question.
It gets much worse than that if we allow a minority of the jury to nullify convictions by forcing mistrials. In we allow just 3/12 jurors to block a conviction by nullification, than even for a measure with 85%(!) popular support, 25% of those tried for the law will be acquitted.
Intuitively, that sounds about right, by which I mean, about as sloppy as the system is now. In the mid-90s I was told by a Houston-area lawyer that ~20% of defendants in Harris County were known to be innocent by prosecutors, who got them indicted anyway because of political pressure. A few years later it came out that, whaddaya know, 20% of convicted rapists in Travis County (Austin) were being exonerated by DNA evidence. Whatever the actual figures, it is easy for me to believe that the error rate characteristic of the criminal justice/law enforcement industrial complex is orders of magnitude higher than anything the public would tolerate in, to pick a not-so-random example, the wireless telecommunications industry. Jury nullification could hardly make it worse.
12 thoughts on “Nullification, Diffusion, and Probability”
And what happened to all those falsely accused “sex offenders” where DNA evidence was not involved or relevant?
Jury nullification should function as an emergency escape mechanism to be used only in rare, exceptional cases to prevent a miscarriage of justice. Given the great diversity of political opinion in this country, the idea that it should be used to pursue individual ideas of ultimate right and wrong is dangerous beyond belief.
We shouldn’t forget that when we sit on a jury, we act as agents of the state. Our rulings have incredible consequences for many people. The idea that individuals have a right to arrogate this power to serve their own ends attacks the very foundation of the rule of law and of government accountable to the people.
I see this idea as part of the spreading corruption of post-modernism in our society. One key idea of post-modernism is that individuals have the right and obligation to use whatever power they have to change society as they see fit. The idea that the power of a position comes with limitations and responsibilities is considered merely the dead hand of the past holding back the enlightened. The advocation of wide spread use of jury nullification fits this pattern. It argues that people should use the temporary grant of state power inherent in the assuming the office of a juror as a tool to do what they believe is right regardless of the wishes of the people of the polity who gave them that power.
While not disagreeing with the outcome in this case, it does raise interesting points. And I’ve got to disagree with this statement, “We shouldn’t forget that when we sit on a jury, we act as agents of the state.
The state has a representative in the prosecution – jurors act as representatives of the people. Which is not precisely the same thing. I (perhaps lamely) associate this with the “proven/not proven/not guilty” verdict option set in the Scottish system.
When I taught at the prison, many students said they were innocent of the crime for which they had been sentanced; many, however, acknowledged guilt of another crime; their sentencing was the result of a plea bargain. Is that common? Does the 20% mean 20% of jury trials or 20% of convictions? Also, a Ft. Worth d.a. told me that their incredibly high conviction rates came because they didn’t prosecute most borderline cases. (But that doesn’t mean he wasn’t wrong 20% of the time, I suppose.)
Your post, coupled with the poll ratings of Congress for the last few years, indicates we have (should have?) less confidence in the laws such lawmakers develop. Surely, this leads to a devaluing of the “rule of law” – a huge loss. Like Shannon, I’d felt such arguments were post-modernist. But, of course, our drug laws sometimes seem foolish.
By the way,these are issues discussed in most basic English courses, which tend to use Martin Luther King’s “Letter from Birmingham Jail” & Thoreau’s essays as basic texts in freshman composition/argumentation courses and Billy Budd as a basic text in American lit ones. I’m not sure if we teach these in a way that leads to or detracts from jury nullification when those students later end up on a jury. But the concepts would be ones with which many jurors would be familiar.
I would argue that jurors wield the power of the state by virtue of creating the verdicts that allow the state to act. In Texas, for example, only a jury can hand down a death sentence, the ultimate state sanction. If juries become nothing but forums for people to express their personal preferences then the power of the juror becomes corrupt just as it would for if any public servant took the same action.
Shannon wrote: “….when we sit on a jury, we act as agents of the state. ….. The idea that individuals have a right to arrogate this power to serve their own ends attacks the very foundation of the rule of law and of government accountable to the people.”
Isn’t the purpose of a trial decided by one’s peers generally accepted to be a protection of the accused from capricious and arbitrary prosecution of the state? The office of prosecution would more correctly termed an “agent”. The prosecutor exerts himself in favor of the objectives of state. Providing a jury is a requirement constitutionally imposed upon the state.
Your impatience with a case that seems a fine example of the gist of what creates judicial activism (namely legislative ineptness, general convenience, and judicial over-reaching because of the ineptness and convenience) makes me wonder if you are a member of the legal bureaucracy.
Isn’t the purpose of a trial decided by one’s peers generally accepted to be a protection of the accused from capricious and arbitrary prosecution of the state?
Yes, but the function of jury in any individual case is to see to the application of the law i.e. the will of the people and precedence. The role of the juror is to act as a safeguard to ensure that the law is applied to the particular case they serve on. The scope of jurors concerns begin and end in the trial they set on.
Dragging in larger issues in particular cases corrupts the juror’s role. Jury nullification renderers the specific facts of the case irrelevant.
Your impatience with a case that seems a fine example of the gist of what creates judicial activism …
I don’t under the argument in that paragraph at all and I am a computer geek/biologist.
Jay: Thank you for the kind words. After my term as Chair of FIJA ended in 2005, I have had nothing else to do with the organization. The inmates, as it were, had succeeded in taking over the asylum.
Let me say I agree with your post. Polemics lose out to reasoned discussion, every time.
We shouldn’t forget that when we sit on a jury, we act as agents of the state.
I couldn’t disagree more. At all times we act as individuals morally responsible for our actions and their consequences regardless of our legal duties and defences. It is the state through its officers that acts as the agent of the people. Among its other responsibilities, it is the jury that assures that the individuals delegated the power of the state have justified taking the action they propose at trial.
Among its other responsibilities, it is the jury that assures that the individuals delegated the power of the state have justified taking the action they propose at trial.
But is that not what all public officials and servants do? We divide power over many offices, the police (many independent kinds), prosecutors, judges, prisons etc. Each office has a specific role and scope of powers that limit and check the power of the other offices. When officials and servants use the powers granted them to pursue their own ends, we call that corruption.
Jurors are no different. While it is a temporary office, selected by lot, it is still an office and one takes an oath to fulfill the duties of that office. The office of a juror comes with both a specific role and scope of powers. Just as with any other office, when the juror use the powers of the office to pursue their own ends, they become corrupt.
Every office has some form of extraordinary power intended for rare cases when the system fails. These extraordinary powers will destroy the system if over used. For example, judges can overturn jury’s guilty verdicts when they believe the verdict so divorced from the evidence that it must be wrong. However, if judges used that power routinely, it would wreck the jury trial system.
We shouldn’t let the fact that jurors are ordinary citizens injected into a system of professionals obscure the reality that jurors exercise the power of the state and with that power comes responsibilities and restrictions.
Jurors are different. Jurors are not officers in any sense. The jurors are not exercising the powers of any office or the state. They are the state. They are overseeing and constraining those who do exercise the delegated power of the state. They are more akin to a corporate board of directors than the management of the company.
Your arguments make sense when talking about grand juries, but not petty.
Jurors are not officers in any sense.
Then why jurors take oaths to fulfill specific duties?
The jurors are not exercising the powers of any office or the state…
They’re exercising the powers of the office of juror.
They are overseeing and constraining those who do exercise the delegated power of the state
Jurors have the power to make decisions that no other office holds. For example, in the State of Texas, only jurors can hand down a death penalty. The jurors do not merely oversee whether the decision of other offices to decide to impose the death penalty was correct, they actually impose the sentence themselves.
When an individuals sits on a jury, they can make decisions denied to any other individual public or private. Those decisions will direct the use the state power. That makes them subject to the obligations of any office.
They are more akin to a corporate board of directors than the management of the company.
I would say that reinforces my point. Corporate board member is role that comes with responsibilities and limitations of scope of power.
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