Absolutely. The justice system is counting on a “don’t ask, don’t tell” situation and hoping that most potential jurors won’t know about nullification at all, won’t have the wherewithal to research it, and won’t be able to express it respectfully to the court. The Internet probably threw a spanner into the works of that assumption at least a decade ago.
It’s a funny thought, but it would almost guarantee some time in the courthouse pokey room for contempt of court.
Meh. I had already cleared my calendar, and who couldn’t use a few extra bucks from the resulting civil suit?
The first google result for “standard voir dire questions” lists the following question:
Is there anyone who would be unable to follow the law as given in the
instructions? Is there anyone who would be unable to disregard his or her own
notions or ideas about what the law is or ought to be?
So if I answer yes to this question during voir dire and then during deliberations decide that the judge hasn’t covered the constitutional aspects of the law properly in the instructions, did I perjure myself? It seems like voir dire is inherently about disregarding the judge’s instructions, or am I missing something?
The short answer?
I would say enforcing the spirit over the letter of the law is exactly why jury nullification is codified. It is there to ensure that the intention of the law is upheld rather than simply following it as written.
This also goes a long way to explaining why lawyers on both sides hate it, since their profession is all about finding the intricacies and loopholes, so having a jury decide despite what the words on paper say is a slap in their faces that their own rules state they must abide by. It is a reminder that for all of their superior knowledge, ordinary people still have the last say.
It is upholding the law, as it is by law a part of the law.
I mean, it would have been an interesting trial. No other jury would hear so much about jury nullification before issuing a verdict.
Sure, but it’s not part of the law the judge gives in the instructions. I’m still unclear on how to avoid perjury answering “Yes I will follow the judge’s instructions” when I don’t intend to do so. Maybe there is just no honest way of getting on a jury if asked that question?
Technically, if you answer “yes” to those questions you’ve acknowledged you’re not going to follow the law/instructions and will probably be dismissed.
Secondly, constitutionality isn’t really what jury nullification is about. It’s squishier than that. It’s about whether the law is unjust or unjustly enforced, whether the punishment is too severe, or whether this defendent is being mistreated in some way.
If you try to claim you understand the constitutionality better than the judge, you’re probably in for a world of hurt.
The judge doesn’t give instructions that prevent jury nullification. If they did, it would be virtually guaranteed to cause a mistrial (and probably get the judge sanctioned). So quit stressing that point.
So there’s no honest way to get on a jury if you intend to practice jury nullification where needed?
Agreed that if I make it to the jury without perjuring myself I’m in the clear. But is it even practically possible to get to that point without perjury?
No, the opposite of that. There is no need to perjure yourself. Jury nullification is a part of the law, and any judge or attorney who prevents you from practicing it is breaking the law.
Are you even reading these posts? Everyone is telling you the opposite of that.
This is what happened in Canada. Quebec kept trying to convict Dr. Henry Morgentaler of providing abortions, but juries kept acquitting him until eventually Quebec just gave up. From Wikipedia:
In January 1976, a third trial was begun against Morgentaler on the first set of charges. On 18 September 1976, the trial ended in an acquittal by a different jury. This was his third jury acquittal in Quebec.
In 1976, the Parti Québécois took power. They realized that the abortion law could not be enforced if juries would not convict, so they dropped the remaining charges. On December 11, 1976, the new Justice Minister, Marc-André Bédard, dropped the charges against Morgentaler and other doctors and announced that there would be no further trials for clinic abortions in Quebec. This was just in time to prevent a fourth Morgentaler trial from starting the following Monday.
Bédard called the anti-abortion law unenforceable. From that point on, Quebec refused to enforce federal law prohibiting abortions by qualified medical personnel. Bédard emphasized that police would continue to identify and charge unqualified, back-street abortionists. Federal Justice Minister Ron Basford said that Quebec had made a just and fair decision that was proper to the provincial authority. Quebec Justice Minister Bedford asked Federal Justice Minister Basford to amend Section 251 of the Criminal Code.
Of course, it took over a decade before the laws themselves were found to be unconstitutional, but this was the beginning.
So lets say I silently answer “No” to the following questions
Even though I might be unable to follow the law as given in the instructions and would be unable to disregard my own ideas about what the law is or ought to be. Isn’t that perjury on my part? Or is there something special about the silent lack of response that prevents it being constructive perjury?
You can loudly and proudly answer “NO to those questions and still not perjure yourself, and still practice jury nullification.
There’s no magic and no subterfuge involved.
The judge will not explicitly forbid jury nullification in their instructions unless they feel like breaking the fucking law.
IANAL so it seems like magic subterfuge that I could dishonestly answer a question without perjuring myself. I have not seen any explanation for why this wouldn’t be perjury, but if you say so and don’t want to say more, I won’t argue.
What question are you imagining you would have to answer dishonestly?
Those examples ask if you will follow the law (yes; jury nullification is part of the law) and follow instructions (yes, since you know the judge will not explicitly forbid jury nullification.)
So where’s the dishonesty?
You can be punished by the court. Conversations like this could be evidence.
This is why you have to do this as a matter of conscience- and be prepared to accept the consequences. As a person of conscience would.
I actually wrote a different response to this but I didn’t like it so I’m trying again.
Jury nullification isn’t codified. It’s not written down in a statute or anything. Juries don’t announce “OK, we’re doing jury nullification now”. It happens when a jury returns a not guilty verdict despite the government proving its case beyond a reasonable doubt because the jury doesn’t agree with the law in some way. That’s not really what jurors are supposed to be doing, so in that sense, jury nullification is not a valid thing for a jury to be doing and judges don’t have to tell jurors that it’s a thing they can do.
But juries generally don’t have to explain their verdicts. They just say “not guilty”. They’re allowed to do that and even hinting (whether in a law or jury instructions or whatever) that a jury is not allowed to find someone “not guilty”, or that a “not guilty” verdict would somehow be inappropriate or wrong, or digging in to and criticizing the jury’s reasons, would jeopardize the right to a fair trial. So jury nullification absolutely happens and we let it happen because trying to stop it would be worse.
So we don’t want to tell juries that they can nullify, but we also don’t want to say anything to juries which suggests that they aren’t allowed to find someone not guilty (which is the mechanism by which they nullify). And that’s how you get a bunch of seemingly conflicting answers to the question “Is jury nullification part of the law”?
Now if you think of perjury as willfully lying under oath, you can imagine the nightmare of trying to prosecute someone for perjury because they believed in jury nullification but said “no” to that question in a voir dire. Were they even lying? Most jurors are not legal academics and haven’t spent a lot of time thinking about the nuances of the law. They probably just say “no” to that question without thinking too hard about it. Or maybe they think of jury nullification as being an integral part of the justice system, a safety valve for unjust laws. Maybe they just forgot about jury nullification at the time they were answering that question.
Wikipedia actually cites a case where this came up, sort of.
Circa 1996, Laura Kriho was the sole juror holdout in a drug possession trial, one eventually declared a mistrial. Kriho was found in contempt of court and charged with perjury and obstruction of justice for learning from the Internet that the defendant could face a four- to 12-year prison term if convicted, a fact the court had not disclosed to the jury. Additionally, while not asked about her opinions about the fairness of the drug laws or her own legal history, she was prosecuted for obstruction of justice for failing to volunteer this information on her own. The trial court found “that Kriho had intended to obstruct the judicial process and that her actions had prevented the seating of a fair and impartial jury”, but after four years of legal battles the charges were dropped when a district court ruled that her statements during secret jury deliberations could not be used against her.
That’s the rub, though- it is not codified in law. It is an unavoidable side effect of a fair jury system. The video above summarizes it perfectly, but basically juries can’t be punished for what they decide and defendants can’t be charged again if found not guilty. So nullification is an emergent property of the system, not something that is designed into it. It’s also very good or very bad depending on who is wielding it (also covered in the video above).
This seems to be the catch-22 of jury nullification: You have to have a pretty substantial understanding of the nuances of the law to even consider doing it, but if you have that then you get weeded out during jury selection.
I wonder if it would be worth consulting a lawyer when one receives a jury summons to formulate an appropriate strategy for navigating those pitfalls.
But if you do wear such button, won’t the attorneys be tempted to ask about it, leading to some sort of disqualification?
I said a t-shirt. A button would be crass.
