Jury nullification is a function of a jury trial designed to fight against tyranny and insure the rights of we the people.
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Jury nullification is a function of a jury trial designed to fight against tyranny and insure the rights of we the people.
And that is found in which Article/Amendment? You're the one making a Constitutionalist/originalist argument. Point to Article that provides for it. All I've asked you to do is show where your argument is supported and you haven't. PS: You didn't answer 90%+ of the questions I posed.
As I already said, jury nullification is a function of jury trials that has developed as part of common law to fight against tyranny.
As far as your questions, I believe that I have.
I see that you have edited your post since I responded. My reply is still the same. Jury nullification is a function of jury trials that has developed as part of common law to fight against tyranny. It came to us from Europe.Quote:
Originally Posted by Jason Hyatt
As far as your questions, I'm sure I have answered like 99% of them :)
1)" As bad as the judicial system can be, how much worse would it be if every person who sat on a jury decided they were going to convict or acquit based on their personal opinion of the law?"
2) "Please point out in the text below where the people are afforded the right to throw out any law they don't like through jury nullification." Admittedly not a question, yet still unanswered.
3) "Where, in any of that, is there an exception that allows me to say: "I think murder is perfectly acceptable and I have the right to acquit anyone regardless of the evidence against them if I don't like the law.""
4) "Where in the Constitution is there a provision for a city ordinance banning littering? "
5) "Where is the right to spousal privilege found?"
6) "Where in the Constitution does it say I need a license to drive, a license to practice Respiratory Therapy, or a permit to build a deck on my house?"
7) "Is it your contention that the law requiring a health care practitioner to hold a license is unconstitutional? Since I can find no requirement for a health care license within any Article or Amendment, I must conclude that you believe anyone who decides they are capable of performing surgery does not require a medical license because said requirement would be unconstitutional."
8) "When a law is unjust, there are means to remove that law found explicitly within the Constitution. So how can you argue for strict Constitutionality while promoting an exercise of power that is NOT found in the Constitution?"
9) "Is your argument really that any legislation YOU PERSONALLY FEEL is not in keeping with the spirit of the Constitution is null and void? If that is the case, then are you advocating that ANY American citizen has the same right?"
10) "And that is found in which Article/Amendment?"
These are the questions I asked you. You haven't specifically answered any of them. I edited my post for clarity.
1. I disagree, our system of government is the best that man has come up with to date in my humble opinion.Quote:
Originally Posted by Jason Hyatt
2. Jury nullification has developed as a function of jury trial to fight against tyranny. It has a long history but for the sake of time I will just pull this off Wikipedia:
"The early history of juries supports the recognition of the de facto power of nullification. By the 12th century, common law courts in England began using juries for more than administrative duties. Juries were composed primarily of "laymen" from the local community. They provided a somewhat efficient means of dispute resolution with the benefit of supplying legitimacy.
Largely, the earliest juries returned verdicts in accordance with the judge or the crown. This was achieved either by "packing the jury" or by "writ of attaint". Juries were packed by hand-selecting or by bribing the jury so as to return the desired verdict. This was a common tactic in cases involving treason or sedition. In addition, the writ of attaint allowed a judge to retry the case in front of a second jury when the judge believed the first jury returned a "false verdict". If the second jury returned a different verdict, that verdict was imposed and the first jury was imprisoned or fined.
This history, however, is marked by a number of notable exceptions. In 1554, a jury acquitted Sir Nicholas Throckmorton, but was severely punished by the court. Almost a century later in 1649, in the first known attempt to argue for jury nullification, a jury likewise acquitted John Lilburne for his part in inciting a rebellion against the Cromwell regime. The theoretician and politician Eduard Bernstein wrote of John Lilburne's trial:
His contention that the constitution of the Court was contrary to the fundamental laws of the country was unheeded, and his claim that the jury was legally entitled to judge not only as to matters of fact but also as to the application of the law itself, as the Judges represented only 'Norman intruders', whom the jury might here ignore in reaching a verdict, was described by an enraged judge as 'damnable, blasphemous heresy.' This view was not shared by the jury, which, after three days’ hearing, acquitted Lilburne — who had defended himself as skilfully as any lawyer could have done — to the great horror of the Judges and the chagrin of the majority of the Council of State. The Judges were so astonished at the verdict of the jury that they had to repeat their question before they would believe their ears, but the public which crowded the judgment hall, on the announcement of the verdict, broke out into cheers so loud and long as, according to the unanimous testimony of contemporary reporters, had never before been heard in the Guildhall. The cheering and waving of caps continued for over half an hour, while the Judges sat, turning white and red in turns, and spread thence to the masses in London and the suburbs. At night bonfires were lighted, and even during the following days the event was the occasion of joyful demonstrations.[15]
In 1653 Lilburne was on trial again and asked the jury to acquit him if it found the death penalty "unconscionably severe" in proportion to the crime he committed. The jury found Lilburne "Not guilty of any crime worthy of death".
By the late 17th century, the court's ability to punish juries was removed in Bushell's Case[16] involving a juror on the case against William Penn. Penn and William Mead had been arrested in 1670 for illegally preaching a Quaker sermon and disturbing the peace, but four jurors, led by Edward Bushell refused to find them guilty. Instead of dismissing the jury, the judge sent them back for further deliberations. Despite the judge demanding a guilty verdict, the jury this time unanimously found Penn guilty of preaching but acquitted him on the charge of disturbing the peace and acquitted Mead of all charges. The jury was then subsequently kept for three days without "meat, drink, fire and tobacco" to force them to bring in a guilty verdict and when they failed to do so the judge ended the trial. As punishment the judge ordered the jurors imprisoned until they paid a fine to the court. Four jurors refused to pay the fine and after several months, Edward Bushell sought a writ of habeas corpus. Chief Justice Vaughan, sitting on the Court of Common Pleas, discharged the writ, released them, called the power to punish a jury "absurd" and forbade judges from punishing jurors for returning a verdict the judge disagreed with.[17]
In 1681, a grand jury refused to indict the Earl of Shaftesbury. Then in 1688, a jury acquitted the Archbishop of Canterbury and six other Anglican bishops of seditious libel.
Juries continued, even in non-criminal cases, to act in defiance of the crown. In 1763 and in 1765, juries awarded £4,000 and £300 to John Wilkes and John Entick, respectively, in separate suits for trespass against the crown's messengers. In both cases, messengers were sent by Lord Halifax to seize allegedly libelous papers.
In Scotland jury nullification had the profound effect of introducing (or as others believed, reviving) the verdict of "not guilty". It was in 1728 that one Carnegie of Finhaven accidentally killed the Scottish Earl of Strathmore. As the defendant had undoubtedly killed the Earl, the law (as it stood) required the jury merely to look at the facts and pass a verdict of "proven" or "not proven" depending on whether they believed the facts proved the defendant had killed the Earl. However, if the jury brought in a "proven" verdict they would in effect cause this innocent man to die. To avert this injustice, the jury decided to assert what it believed to be their "ancient right" to judge the whole case and not just the facts, rendering the verdict of "not guilty" which remains in Scotland to this day. Over time, however, juries have tended to favour the "not guilty" verdict over "not proven" and with this the interpretation has changed.[citation needed] Now the "not guilty" verdict has become the normal verdict when a jury is convinced of innocence and the "not proven" verdict is only used when the jury is not certain of innocence or guilt.
Standard jury trial practice in the USA during the Founding Era and for several decades afterward was to argue all issues of law in the presence of the jury, so that the jury heard the same arguments the bench did in reaching his rulings on motions. This is evidenced by such decisions as the 1839 case Stettinius v. U.S., in which it was held that "The defense can argue law to the jury before the court gives instructions."[18] Later, judges began to demand the parties submit motions in writing, often before the jury was empaneled, to be argued and decided without the jury being present. This transition began with motions in limine, to exclude evidence, on which it was felt the jury should not hear the argument because they would be informed of the evidence to be excluded. Later that was expanded to include all legal argument, so that today, that earlier practice of arguing law before the jury has been largely forgotten, and judges even declare mistrials or overturn verdicts if legal argument is made to the jury.
United States
United States
Main article: Jury nullification in the United States
In the United States, jury nullification first appeared in the pre-Civil War era when juries sometimes refused to convict for violations of the Fugitive Slave Act. Later, during Prohibition, juries often nullified alcohol control laws,[23] possibly as often as 60% of the time.[24] This resistance is considered to have contributed to the adoption of the Twenty-first amendment repealing the Eighteenth amendment which established Prohibition. Amidst the Civil Rights Movement, during the 20th Century, several all-white juries, despite overwhelming evidence of guilt, acquitted white defendants accused of murdering blacks.[25]
In the 21st century, many discussions of jury nullification center around drug laws that some consider unjust either in principle or because they are seen to discriminate against certain groups. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification,[26] and a recent rise in hung juries is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.[27]
First Chief Justice of the US John Jay wrote: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision... you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy". State of Georgia v. Brailsford, 3 U.S. 1, 4 (1794),[28]
It was over time that judicial and legal opinion slowly changed to consider jury nullification only a power and not a right of juries, as judges and prosecutors wanted stricter enforcement of laws that juries nullified. This shift stemmed from the 18th century conflict between two factions of English jurists, the first led by Lord Camden, which was originally prevalent in what became the United States, and the second led by Lord Mansfield. The position of the latter was called "Mansfieldism" by Jefferson[29] and the shift has been called "Mansfieldization".[30]
In recent years, judges seem to be less likely to favor jury nullification. While unable to take away the power of nullification, they have done much to prevent its use. The first landmark decisions since the adoption of the U.S. Constitution confirmed several rights of the defense in a criminal case: a requirement on the bench not make a decision on motions until all legal arguments had been made by both sides; the right to be free of making those arguments before the jury had been seated; and the right to make those legal arguments to the jury.[31][32]
The first major decision that departed from this line was Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840),[33] which held that the bench could override the verdict of the jury on a point of law. The 1895 decision in Sparf v. U.S. written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5-4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present a nullification argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.[34]
Recent court rulings have contributed to the prevention of jury nullification. A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the right of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.[35] In 1972, in United States v. Dougherty, 473 F.2d 1113, the United States Court of Appeals for the District of Columbia Circuit issued a ruling similar to Moylan that affirmed the de facto power of a jury to nullify the law but upheld the denial of the defense's chance to instruct the jury about the power to nullify.[36] In 1988, the Sixth Circuit upheld a jury instruction that "There is no such thing as valid jury nullification."[37] In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).[38] The Supreme Court has not recently confronted the issue of jury nullification. Further, as officers of the court, attorneys have sworn an oath to uphold the law, and are considered by bar associations to be ethically prohibited from directly advocating for jury nullification."
3. As I already said, it is obvious that the jurors right to disregard a law due to it's unconstitutionality or violation of common law or human rights does not include cold blooded murder. But a law that prohibits a persons right to grow a plant that relieves suffering in their personal life should be rendered null & void by the action of jury nullification in my opinion.
4. irrelevant to the topic of this thread.
5. irrelevant to the topic of this thread.
6. irrelevant to the topic of this thread.
7. irrelevant to the topic of this thread.
8. Jury nullification is the right of every jury member as established by the U.S. Supreme Court which is the highest court in America.
"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st. Chief Justice U.S. Supreme Court, 1789
"The law itself is on trial quite as much as the cause which is to be decided."
Harlan F. Stone, 12th Chief Justice U.S. Supreme Court, 1941
Jury nullification does not remove the law from the books, it only applies to the case in question. Other guidelines should be followed to repeal a law.
9. Yes.
10. Again, jury nullification has been established by the Supreme Court.
"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st. Chief Justice U.S. Supreme Court, 1789
"The law itself is on trial quite as much as the cause which is to be decided."
Harlan F. Stone, 12th Chief Justice U.S. Supreme Court, 1941
I think you are missing the point. No one ever said that jury nullification was written in the Constitution, only that unconstitutional laws are null and void. Sending an old lady to jail for growing a plant for her personal medical use is wrong and I believe the law is unconstitutional. You yourself said "I do firmly believe the law in this case IS unjust ."
*sigh*
1)" As bad as the judicial system can be, how much worse would it be if every person who sat on a jury decided they were going to convict or acquit based on their personal opinion of the law?"
I said *can* be. I do believe we have the best system so far developed by mankind but it needs a lot of work and it makes mistakes. But there are means to correct those mistakes that don't require ignoring the law. If every person who sat on a jury decided the case based on his or her opinion of the law rather than the facts at hand, there would be no rule of law at all.
2) "Please point out in the text below where the people are afforded the right to throw out any law they don't like through jury nullification." Admittedly not a question, yet still unanswered.
You were the one claiming jury nullification is a right of the juror afforded by the Constitution. I asked you to point out where that is found. You can't because it isn't. Even the courts can't agree on whether such a right truly exists. From your own wikipedia quote: "In 1988, the Sixth Circuit upheld a jury instruction that "There is no such thing as valid jury nullification."[37] In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).[38] The Supreme Court has not recently confronted the issue of jury nullification. Further, as officers of the court, attorneys have sworn an oath to uphold the law, and are considered by bar associations to be ethically prohibited from directly advocating for jury nullification."
3) "Where, in any of that, is there an exception that allows me to say: "I think murder is perfectly acceptable and I have the right to acquit anyone regardless of the evidence against them if I don't like the law.""
So now your argument is that jury nullification is only a right/privilege of a juror when it's "obvious" that it's their duty? Who decides when nullification is appropriate and when it isn't? When is it "obvious" that a law can or should be nullified? It isn't because it isn't a right afforded any individual to decide which laws they will follow and which they can choose to ignore.
4) "Where in the Constitution is there a provision for a city ordinance banning littering?"
5) "Where is the right to spousal privilege found?"
6) "Where in the Constitution does it say I need a license to drive, a license to practice Respiratory Therapy, or a permit to build a deck on my house?"
7) "Is it your contention that the law requiring a health care practitioner to hold a license is unconstitutional? Since I can find no requirement for a health care license within any Article or Amendment, I must conclude that you believe anyone who decides they are capable of performing surgery does not require a medical license because said requirement would be unconstitutional."
Of course they are relevant. You made the general case that a jury has the right and/or obligation to acquit when the law is -- in their opinion -- not in keeping with the Constitution. My point is that there are plenty of laws that are perfectly valid not found in the Constitution. Your contention is that ANY law a juror *feels* is unconstitutional is subject to nullification. Any of these laws above could be claimed to be unconstitutional by a juror because they are not found anywhere within that document. That is clearly absurd. So you would agree that laws not enumerated within the Constitution can be and are valid? Then what basis does a juror have for deciding a law is unconstitutional?
9) "Is your argument really that any legislation YOU PERSONALLY FEEL is not in keeping with the spirit of the Constitution is null and void? If that is the case, then are you advocating that ANY American citizen has the same right?"
I cut this from a broader paragraph. My point is: so any law you don't like you get to ignore as long as your personal opinion is that it is unconstitutional? And ANY citizen who feels ANY law is unconstitutional has the right to ignore that law as well? If that is not the case, who/what/when/where decides which laws are subject to nullification and which ones aren't?
Of course unconstitutional laws are null and void. But an individual juror alone doesn't get to determine that. Courts do. Article III.
Now having said all of that, I do stand by my position that in this case, this is an unjust law that should be repealed. This lady is no public menace and I likely would have voted to acquit on that basis -- because the prosecution has not proved her to be a public menace, not because of my opinion on the constitutionality of the law. There is a subtle but important difference. The prosecution must prove beyond a reasonable doubt that she is a danger to society and they can't do that in this case because she ISN'T a danger to society. But to say that ANY juror in ANY case has the right to invalidate ANY law based solely on his or her OPINION that a law is unconstitutional is patently absurd. That's anarchy, not democracy.
Ultimately, I don't dispute that a jury *can* nullify the law in a specific case. Obviously, if I choose to ignore the law in the jury room and vote to acquit regardless of the evidence, there is little anyone can do about it. My dispute is whether it *should* be done in ANY case and who decides that. Because ultimately jury nullification leaves the interpretation of constitutionality in the hands of a single, unelected, individual you cannot make the argument for strict Constitutionalism/originalism and still promote jury nullification. Jury nullification is, in my opinion, antagonistic to the idea of a democratic republic and the three-branch system of government we have in place.
I should probably mention that I appreciate the discussion. All too often I find people who fail completely to articulate their own position; while we disagree, I think we've been civil if perhaps a bit contentious. I just want to make it clear that -- though I disagree -- I have absolutely no ill feeling toward you personally. :)
*SIGH*Quote:
Originally Posted by Jason Hyatt
2. I never said that jury nullification was a right expressed in the Constitution, I said that every juror has the right to judge not only the facts in the case at hand but also the constitutionality of the laws in question. Jury nullification is a legit practice of jury trials developed within common law from which the founding fathers of America borrowed. This is a fact proven by the U.S. Supreme Court.
"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st. Chief Justice U.S. Supreme Court, 1789
"The law itself is on trial quite as much as the cause which is to be decided."
Harlan F. Stone, 12th Chief Justice U.S. Supreme Court, 1941
3. my position never changed.
4. The Constitution is the supreme law of the land of which all other laws must comply with. No one ever said that the Constitution is the whole of the law, just that all legislation or rulings of the Supreme Court and lower courts must be in agreement with the spirit of the Constitution.
9. This is not only my opinion, it is the ruling of the U.S. Supreme Court.
"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st. Chief Justice U.S. Supreme Court, 1789
"The law itself is on trial quite as much as the cause which is to be decided."
Harlan F. Stone, 12th Chief Justice U.S. Supreme Court, 1941
We disagree on this subject but the fact remains that every citizen has the right to judge not only the facts of the case in question but also the law itself during a jury trial.