Where is Your Nullification God Now?
Unlike many libertarians, I have never bought into the concept of jury nullification. I actually think it is a most unlibertarian concept, for several reasons:
–In most if not all settings, jurors swear an oath to uphold and apply the law and to follow the judge’s instructions. If you can’t in good conscience uphold a particular law, then the right time to demonstrate the inviolability of your principles is during the voir dire.
–Libertarians abhor the concentration of power. How can they then sanction the ultimate concentration of power — a unilateral veto power — in a single unelected individual?
–Nullification works both ways. It is just as easy for a lone “law and order” or “ends justify means” juror to vote to convict someone who is in fact innocent. A civil trial analogue occurred here. Eleven-to-one to acquit is still a hung jury, just like eleven-to-one to convict.*
In any case, it now appears that the capital phase of the Zacarias Moussaoui trial was itself a case of jury nullification. One of the three votes was 11-1 to execute (the others were both 10-2; any single 12-0 would have meant execution).
So I’ll put it out for an open thread — do you pro-nullification libertarians still support the concept despite the Moussaoui verdict? Should an advocate of “no capital punishment, ever” be allowed to sit on a capital jury in the first place? If jury nullification is ever warranted, then where is the line to be drawn and how is it to be enforced? I find these questions to be so metaphysically unanswerable as to, well, nullify the questions a priori.
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*Most of the time. Unanimous jury verdicts are not a Sixth Amendment requirement. Neither are 12-person juries, or juries at all for that matter (under current case law).
Similar Posts:
- In Offense of Jury Nullification
- Suddenly Jury Nullification Doesn’t Sound So Great
- Did IQs Just Drop Sharply While I Was Away? (Part One)
- A Nullification Denouement
- The Jury is Still Out on Juries
Filed under: Constitutional Issues, Law, Libertarianism
Well, I've served on a jury before and it seems to me that, oath or ot, most people seem uninterested in the judge's instructions and more interested in their own feelings (i.e.; "this guy was really nice on the stand. I don't think he did it", etc.) Not quite jury nullification, but the idea that a juror's oath is taken seriously by all jurors is not an idea on which I would want to bank anything.
[Kip replies: That certainly seems to be the trend in the Vioxx litigation -- unfortunately.]
Would you really vote to convict someone and send them to prison for decades just because they were guilty under the law if you knew the law to be unjust?
Would you have voted to have an escaped slave returned to his master simply because that was the law?
[Kip replies: First of all, I'm not pompous enough to pretend that I know how I would have thought in the 1850s.
Now, my personal experience is that the jury pool knows, ex ante, what crime the defendant is charged with. So like I said, if I personally were trapped in a scenario where the defendant was charged with, say, violating a drug possession law, I would never be empaneled in the first place -- because I would make it clear in the voir dire that I could never, ever, vote to convict such a defendant.
So the question becomes: are you suggesting that I have either the right or the obligation to lie my way, under oath, onto the jury for the purpose of "rescuing" the defendant from a law I consider to be unjust?
Again, I'm not that pompous.]
You certainly don't owe a court the truth in cases where it's systematically perpetrating injustice. It would be perfectly moral to lie about your intentions in order to get on a jury when someone was being tried under an unjust law. A typical drug trial, for instance.
"First of all, I'm not pompous enough to pretend that I know how I would have thought in the 1850s."
Assume for the sake of argument that you correctly recognized that slavery was a moral abomination. Would it be immoral to lie to get on a jury in order to preserve the liberty of an escaped slave? Or would morality require respecting such an abominable law at the cost of his liberty for the rest of his life?
What's wrong with saying jury nullification of a just law – bad, of an unjust law – good.
What happens in the instance of a person empaneled in a drug possession case who, prior to serving on the jury, had no particular feelings about issues of drug possession, but, upon hearing testimony had a libertarian awakening of sorts, and, consequently, refused to convict on the basis of new-found principle?
Are you really arguing that such a person should disregard his sudden realization that drug possession cases are a gross abuse of government power, and, instead, heed the judge's instructions?
That hardly seems a reasonable expectation.
[Kip replies: He could ask to be excused.]