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| Matthew McConaughey playing Lee's Lawyer |
A Time to Kill
The movie ATime to Kill based on John Grisham's novel is arguably an example of jury nullification. The premise is that a black man (Karl Lee played by Samuel L. Jackson) whose daughter was gang-raped takes the law into his own hands. Lying in wait (with an M16), he kills the suspects at the courthouse where the arraignment is set to take place. Fast forward to the end of Lee’s trial. After Lee’s lawyer gives the most persuasive closing argument ever, the jury acquits Lee of not only the two counts of murder for the two suspects he shot but also the attempted murder of the deputy escorting them. Jury nullification?
We Couldn’t Trust Our Lying Eyes
Another high profile case of nullification touched off the 1992 Rodney King riots. Caught on videotape, what happened to King was viewed as a clear-cut case of police brutality. After four officers stopped King following a 15-minute high-speed chase, he was hogtied and beaten, receiving multiple cuts and fractures. Apparently, the mostly white jury “couldn’t trust their lying eyes”—the officers were acquitted in state court of all but one of the charges.
What is Jury nullification?
A jury's knowing and deliberate rejection of the evidence or refusal to apply the law because either the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.
That’s right. Jury nullification is a jury taking the law into its own hands. Some call it vigilantism; some call it justice.
Pro-nullification advocates cite the 1st amendment to support the right to inform jurors of their right to nullify,[ii]and the 7th Amendment, which prevents federal judges from overturning jury verdicts. Historically, when the government has tried to impose unpopular laws, juries have nullified verdicts. More recently, examples of nullification are acquittals of mercy killers, including Dr. Jack Kevorkian (AKA Dr. Death).
Anti-nullification advocates view informing juries as jury tampering. The New Hampshire Supreme Court gutted (includes "NJ Weedman" video) a law via a marijuana case, stating, "It is well established that jury nullification is neither a right ... nor a defense recognized by law."
The Supremes Say
Jury nullification is both prohibited and protected. Huh? That’s right, it was officially condemned by the United States Supreme Court in Sparf[iii]and “yet allowed – even encouraged – to survive by various, unyielding protections of jury decision-making.”[iv]Supreme Court Justice Scalia said,[v] “jurors ‘can ignore the law’ if the law ‘is producing a terrible result.’”
Mark Roberts Mission
You might think that jury nullification isn’t a Utah issue, or is limited to the movies. Others, however, including Utah House Representative Mark Roberts are convinced otherwise. Rep. Roberts is working to pass legislation requiring juries be told about their right to nullify (under certain circumstances). His 2018 bill HB284 failed by a slim margin. Listen to the committee hearing[vii]and watch the super interesting 2018 House floor debate of his legislation.[viii]
Do juries have the right to nullify? Should they?
If jurors have the power to nullify, should they be told so?
Me? I was entirely against nullification. The idea of juries willy-nilly doing whatever they want scares me to death. However, Rep. Roberts' bill has some safeguards (i.e., the judge grants the defendant's jury instructions request to include nullification). In the end, I'm still against it. I can't conceive of any sensible safeguards. Rep. Roberts' bill asks the judge to determine when a jury wouldn’t need to follow the law? That turns the entire legal system upside down.
Me? I was entirely against nullification. The idea of juries willy-nilly doing whatever they want scares me to death. However, Rep. Roberts' bill has some safeguards (i.e., the judge grants the defendant's jury instructions request to include nullification). In the end, I'm still against it. I can't conceive of any sensible safeguards. Rep. Roberts' bill asks the judge to determine when a jury wouldn’t need to follow the law? That turns the entire legal system upside down.
[i] See U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997) at http://cases.justia.com/us-court-of-appeals/F3/116/606/611938/
[ii] See Fully Informed Jury brochure at https://www.rcfp.org/newsitems/docs/20110204_143735_new_true_false.pdf; Also, See Fully Informed Jury website at https://fija.org
[[iii] Sparf v. United States, 156 U.S. 51, 101 (1895) at https://supreme.justia.com/cases/federal/us/156/51/ (Sparf remains the last direct opinion of the Court on jury nullification. While it does not prohibit juries from disputing the law in a case, it denies them any right to do so.)
[iv] Duvall, Kenneth. “The Contradictory Stance on Jury Nullification.” North Dakota Law Review, vol. 88, no. 2, 2012, pp. 427-436. at https://law.und.edu/_files/docs/ndlr/pdf/issues/88/2/88ndlr409.pdf (Although this entire article is pertinent and interesting, pages 427-435 addresses jury nullification control devices use or lack of use.)
[v] Frazier, Mansfield. “Can Juries Ignore ‘Immoral’ Laws by Nullifying Them?”Daily Beast, Dec. 29, 2011. ¶ 23
[vi] (See What would the Supreme Court likely say upon revisiting the issue. Section VI Part B pp. 429-488 at https://law.und.edu/_files/docs/ndlr/pdf/issues/88/2/88ndlr409.pdf)
[vii] (To listen to the audio recoding scroll to HB284 on the menu under the video/audio recording box. This is an 70-minute recording.)
[viii] (To watch the floor debate scroll to HB284 on the menu under the video/audio recording box. This is a 22-minute recording.)
This is such a great post Holly. I probably have a lot more to say about this subject, but I the first thing that comes to my mind after reading it relates to what we’ve discussed in UCS&L about statutory construction. It’s easy to assume that the general public has no practical reasons to put the slightest thought into determining, on their own, what the lawn means. But this post brought to my mind, for the first time, that statutory interpretation is not necessarily the limited purview of legislators, law professionals and legal scholars —in fact — the Entire basis of our justice system, and our strong constitutional allegiance to the idea of verdict by jury of peers, would appear to almost rely on the general public’s “duty” to have a cursory understanding of textual, positivist and pragmatic interputation, and of legislative intent. Jury nullification can certainly go way beyond the responsible exercise of legal interpretation—as you point out in some of the cases you’ve sited—and I’m still on the fence about whether jury instructions should include tipping them off to even the slightest hint of the “right” to nullify that exists in the murkier waters of the law, but juries may (arguably) be legitimately considerd a group of authorities with the charge of determining what the law “is“.
ReplyDeleteI know, right? I've always said that society would completely change if people were required to spend a couple of weeks at the capitol during the legislative session. Interestingly, one of the articles in the post points out that there is no difference in the nullification rate between juries the receive instructions that are radical ( you jury have the right and even the responsibility to nullify) and those that hint that the jury has the power. This study was done with simulated mock juries, but I found these results fascinating. I could see this getting out of control--the "NJ Weedman" is indeed spreading the word.
Delete“Respect authority, but challenge it at all times.” These are the words I remember my dad saying to my brother and me at least once a week as we were growing up. Typically, he was saying this to us after he had us read an article from the Salt Lake Tribune to show the fallible nature of humans. We read articles about religious leaders who had failed their congregation, we read articles about politicians who forgot to serve their people, and I especially remember reading about a local attorney to my county who forged his client’s signature to make $10k. “They are only people, their title does not make then any better than you or I,” would usually end the talk.
ReplyDeleteEven though I still challenge authority, I do not believe jury nullification is a solid recourse in the judicial system. Despite Matthew McConaughey’s extremely persuasive closing argument, Mr. Lee is guilty of 1st degree murder, “unlawful killing that is both willful and premeditated, meaning that it was committed after planning or lying in wait for the victim.” Though I do believe we should question the authority of why the person is on trial, I do not believe a jury should nullify solid evidence after it is presented. Did Mr. Lee use a firearm to deprive some sick people of their life, if yes then he is guilty. Did the LAPD beat a defenseless man, if yes then they are guilty.
I freely admit that I break the law daily, I usually drive 5-15 mph over the speed limits at all times (except school zones). When I have been caught, and I have been caught multiple times, I don’t fight my tickets because I know I am guilty as heck. It entertains me to think about telling a jury of my peers, “Who has not ever been speeding through Helper, Utah on your way to Moab?!?,” and getting away with my lead foot ways. I would expect my peers to hold me, and others, accountable for our speedy ways.
Holly’s link that takes you to historical sites where jury nullification have been used does inspire me, but not enough to feel jury nullification is valid or should be encouraged.
I'm in your camp, Todd. I do think our legal system has its problems. For a start, could lawmakers pass better laws? Yes. I believe many reforms would help prevent manifest injustice, but real change is hard work.
DeleteAs a side note, A Time to Kill is rife with errors, legal and otherwise. After the jury's verdict, a girl runs out and proclaims that Samuel L. Jackson is "innocent." Our legal system does not allow for this finding, only guilty or not guilty.
DeleteIn defense of jury nullification, I don't think that most jurors follow the law to a tee anyway. The facts clearly matter, but strong emotions applied to solid facts are highly persuasive. Putting on experts that are likable is just as important as putting on experts that are knowledgeable.
Martha's Reply (technical difficulties) -- I’ve never understood the concept of jury nullification prior to your post, so thank you. What an interesting aspect of the law. I actually like the language in Representative Roberts’ bill. Since this does take a unanimous jury decision, and by most measures these decisions would not be arbitrary or capricious, but heavily considered, I think it is a critical aspect of our legal process. It reminds me of our discussion in Judge M’s class regarding Myanmar. I know we don’t have anything close to that level of rogue governance in our country, but when considering the current level of unsettling discord, violence, judicial politicizing and the influence of money, racism and sexism in every aspect of American life, it seems reasonable to at least follow the language of Roberts’ bill and bring the option forward. On the other hand, what role does this play on precedence setting case law? Thanks for making me cry, BTW.
ReplyDeleteOh, no--I'm sorry! I assume it was Matthew?!? Roberts' bill nudged me in his direction too. It got me thinking about what safeguards I would want to allow nullification. I do want manifest injustice prevented. However, allowing judges to circumvent laws passed by the legislature is a big issue for me. Frankly, I can’t believe it isn’t a bigger problem for the legislature too. The three branches of government, checks, and balances, and separation of powers issues are too muddy for me under Roberts’ bill. Judges take an oath to uphold the law. It seems like a big contradiction to then add "most of the time." Although, I can certainly see why it’s appealing.
DeleteI view jury nullification as a case by case basis, I cannot say with a certainty which side of the fence I am on.
ReplyDeleteIt is okay for jury nullification when the laws seem to be unjust, which is for the jury to decide. For example people helping slaves escape were violating the fugitive slave law, however it was strongly believed that these people were heroes and should not be punished.
Just a plug for the positive side of jury nullification.
That is exactly the idea behind Roberts' bill. The judge determines o a case-by-case basis whether the instruction for nullification is given, or not.
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ReplyDeleteJuries clearly have the power to nullify; whether they also have the right to nullify is another question. Tyrrell mentions in her post that, “Supreme Court Justice Scalia said, ‘jurors can ignore the law if the law is producing a terrible result.” This stance from Scalia comes as a shock to me, especially with his textualist ideal that “the text is the law.” By taking the law into their own hands, jurors are moving outside of what the Constitution states and applying their own biases to a verdict. I agree with Jason - it reminds me of the statutory construction we are learning in UCS&L.
ReplyDeleteIn most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. In the past, judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies. This directly goes against the Sixth Amendment on creating an impartial jury (which is why Scalia’s statement is so surprising) but I can’t say where I stand on this.
Jordan, I can see where you are coming from and believe that nullification is okay as long as the jury has some kind of knowledgeable background on why they have decided to go against the written law. I agree with Tyrrell that allowing a jury this right is scary and you can’t guarantee that any jury member has the knowledge needed to make the “right” decision. My brain says “no” but my heart says “yes” - as a jury, we need to be able to state whether or not a law itself is one of justice and if it is correctly being applied.
Really good post, Tyrrell ;)
My brain and heart are right there with yours, Lauren.
DeleteI appreciated Representative Roberts' introduction of HB 284 along with his explanation of its intent to support one of our most fundamental beliefs: the American system of checks and balances. If our laws are unjust and do not reflect the will of the people, our recourse as citizens is to petition our representatives or elect new representation, right? But what if (hypothetically) legislatures are so ideologically opposed to working with officials on the other side that NOTHING actually gets done and no changes are enacted?
Because the government cannot possibly foresee how the law will impact all people in any situation, I am inclined to provide more power to individuals to right the perceived wrongs in society. I agree with Jordan that jury nullification would likely occur in rare circumstances and on case-by-case bases, and would therefore support the option for judges to include this possibility in his/her jury instructions.
I see your point, and actually had to think hard about this issue. When I listened to the arguments for nullification, I agreed. When I heard the arguments against nullification, I agreed. Ugh!
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DeleteLauren~ You are right, this is a tough one. Manifest injustice is something which is 'obviously unfair' or as Rep. Roberts says is 'shocking to the conscience'. How can we allow it? What can we do about it? And yet, I can't get past the fact that the judicial system is here to uphold the laws and the legislative branch makes the laws. What will happen when those lines are fuzzier? What would this do to victims of certain crimes that go through the entire process to have the jury nullify a verdict. This is a tough issue.
I think jurors already practice nullification, even if we aren't aware of it. In the wedding cake case, the Supreme Court clearly dodged the question of religion v. freedom of speech rights by focusing on a procedural issue. The standard of "beyond a reasonable" doubt is a high bar to to cross and it is certainly within the purview of jurors to throw out a case due to lack of evidence or some other procedural failure.
DeleteAlso, think back to our mock trial. Would Justin have been found guilty if he had not testified? What was the basis for that outcome and how much of that was based on emotion rather than strict application of the law?
Test
DeleteI agree that it happens, and probably more often than we think. I would hope that a prosecutor would not prosecute a case if it were unjust.
DeleteI never saw A Time to Kill. Phew. Got that off my chest. That said, maybe I’ll rent it.
ReplyDeleteA jury verdict can’t change the law, no matter how much the individuals on a jury either agree or disagree with it. Their job is to hear the evidence and apply the facts to the governing law and to decide on a verdict. Juries also don’t always have all of the background information on the case from both sides—they have only the information admitted and governed by the pretrial order. On its face, it would seem to me that jury nullification burdens the justice system. Laws should be changed through the legislative process, and subject to public review and debate.
This all being said, I don’t know enough about the issue to argue it properly either way. I look forward to hearing more about this topic in a few weeks. Great post!
I am also looking forward to the upcoming discussion. This is a complicated topic!
DeleteWe talked about this in my Evidence class at SLCC. I think jury nullification is an important method for citizens to become involved in the legal process. After all, the laws are meant to protect the citizens, not the other way around.
DeleteThis was my favorite line from your post Holly, "Supreme Court Justice Scalia said,[v] “jurors ‘can ignore the law’ if the law ‘is producing a terrible result.’” What a fascinating statement! It is unnerving, but at the same time, it allows for some justifiable statements. That being said, I do not feel the judge should instruct the jury on nullification.
ReplyDeleteRaelene~ I was stunned to read that quote from Scalia. I am going to think about this--when I have extra thinking time--to discern how to square this with his textualist interpretation style. I know it's routed is the Founding Fathers’ materials somewhere.
ReplyDeleteFascinating topic, Tyrrell! I had to go back and look up the the basic definition of a law, since that is what juries are instructed to do. Juries at the heart of their job are finders of fact, not finders of law, so the judge has instruct them as to what the law is. A rudimentary definition of law is that it is a guidepost for minimally acceptable behavior in society. Originally I was going to argue that juries bring their own experience and interpretation to the law, but they aren't supposed to interpret the law, just apply it as the facts of the case dictate. I believe I agree with you that jury nullification shouldn't be a thing. But you are right, there are very convincing (especially Lauren's and Leila's) arguments on both sides. Looking forward to our discussion on this topic.
ReplyDeleteIt's a difficult topic. There will always be those examples of someone being charged with a crime that people not on a jury will second guess. Or laws that people disagree with. With a increase in the level of citizen participation in elections and a watchful eye on lawmaking--the need for nullification might be minimized.
DeleteAs we have learned and others have pointed out, juries are required to apply the law as it is given to them and decide a verdict based on the evidence, not on their morals or emotions. While I can see both sides of the issue, in the end I land in the camp against a judge explaining nullification as an option for jurors. Two wrongs do not make a right. How do the riots of 1992 resolve the decision to acquit the four LA police officers? While I am sure Mr. Lee acted as many fathers would, had their own daughter suffered what his did in the movie, it is not his right and should not be the right of a jury to take the law into their own hands. Even if it gives us the desired outcome. It is interesting that this issue is being addressed in our own state. While Rep. Roberts’ bill failed, sounds like there is some support for it. I will be looking to see how/if it is resurrected in the future.
ReplyDeleteI agree. I might be a Mr. Lee if the victim were my daughter. And if I was, I would be breaking the law.
DeleteJury nullification is "the power of a jury in a criminal case to acquit a defendant for any reason or no reason at all" (Garland, 2011, p. 34). Jury nullification is an important way for the people to express their displeasure with a law, and act as a defacto way of invalidating an unpopular statute. It is clear from the Sixth Amendment that there exists a
ReplyDeleteright to jury nullification as "a trial judge absolutely cannot direct a verdict in favor of the
State or set aside a jury's verdict of not guilty" (Duane, 1996, p.6). Despite the People being
given the power to control and shape the way the government functions, it is usually monied
interests that are really able to influence and create the law.
It should be noted that jury nullification can and has been used to acquit criminals, including
murderers. However, since there is a presumption of innocence in the United States, it
appears that the application of jury nullification acts more to protect, rather than harm,
parties in a lawsuit. In civil litigation, judges are allowed to may overrule a jury and reverse
or amend their verdict (judgment notwithstanding the verdict). In criminal cases, judges do
not have this power to overturn a not guilty verdict on a defendant as this would run counter
to the Fifth and Sixth Amendments. A judge may, however, set aside the judgment of a jury
conviction.
Duane, J. J. (1995). Jury Nullification: The Top Secret Constitutional Right. Litigation, 22, 6.
Garland, N. M., & Garland, N. M. (2006). Criminal evidence. Boston: McGraw-Hill.
Peter this case explains what you posted.
DeleteSULLIVAN
v.
LOUISIANA
https://www.constitution.org/2ll/2ndschol/131jur.pdf
Yes. You are correct that a guilty verdict can be managed--at least more so than a not guilty verdict. It seems to me that we should start with strengthening the laws and procedures leading up to trial. We could work on changing unjust laws before someone is charged. And passing better laws in the first place. Maybe?
DeleteThis is a really fascinating topic. I followed your Daily Beast article's link to this organization, which has a clear enough ideology about informing jurors/prospective jurors beyond what a judge's instructions might convey. Its angle seems to appeal to the laity's self-perceived wisdom, and to present the judiciary as a conspiracy against justice itself. Increasingly I struggle with the mentality that anyone who can search Google can "do their own research" and override the credibility of a trained or licensed expert in any field.
ReplyDeleteI'm not totally settled on my own answer (classic milquetoast, here). On one hand, the function of a jury is to review the facts of a case from their perspective as laypersons, not to spend their period of service trying to become overnight experts in the workings of the system they serve. The case against the leafleting pastor outside the courthouse is certainly a compelling one. It would be one thing if he were blogging or preaching about this subject for all to see, but his targeting of specific jurors is difficult to defend.
Really terrific stuff to mull over. Thank you for sharing this!
The organization Fully Informed Jury is the group that prints out the pamphlets teaching people about nullification. The NJ Weedman worked with the group to formulate his trial strategy. The entire situation is fascinating. Enjoy your mulling.
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ReplyDeleteIn my opinion the issue arises how people interpret the Sixth Amendment which grants a defendant the right to have a jury for a serious offense or crime committed. Jurors play an important role that is protected by the constitution. Same as judges, cannot rule or direct a verdict in favor of the state. The judge also plays a big role when directing atrial carefully and without any bias for guilt or innocence of someone. Should judges have more power in a trial than juror or vice-verse to decide the fortune or future of an individual? no matter how much evidence is presented, no matter if a defendant admits a crime on the stands. Instructions nullification given or known before hand, will not change the fact the jurors have the right of conscious to make a good or wrong judgment. As we know any instructions for guilt or innocence is a violation of the rule and automatically reversible error without regard of the evidence of guilt. The outcomes of trials should lie in the balance of both judge and jury with their respectively duties. When a judge decides a case there is more likelihood for an appeal, as opposed to a case decide by a jury.
ReplyDeleteA jury has a great amount of deference with an appeals court. It would be interesting to follow a case that included nullification and went to the appeals court. Although, I suspect that there would be fewer cases that fall into that category. Most, I suspect, would be cases that are dismissed or where not guilty verdicts are found. It's also interesting that in the King case the defendants were found innocent in state court and then guilty of civil rights infringement in a federal court.
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