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September 3, 2010

"Of Rebels, Rogues and Roustabouts: The Jury's Second Coming"

The title of this post is the title of this new piece from Professor Jenny Carroll now appearing on SSRN.  As its abstract reveals, this paper would be a timely read for anyone eager to think about the labors of juries during this Labor Day weekend:

This article examines the role of the jury in a post-Apprendi justice system.  Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences.  I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability.  In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate. 

This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact.  Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability.  I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

September 3, 2010 at 03:56 PM | Permalink


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Just so long as we are also going to be more trusting when a jury comes back saying the particular offender deserves death. Being trusting of jurors only when they show mercy is little more than a shell game.

Posted by: Soronel Haetir | Sep 3, 2010 6:15:20 PM

The jury was an advance in Evidence in 1275 AD. Furthermore, the jury had knowledge of the parties, and often of the legal matter, the crime, the land dispute. They offered the wisdom of the crowd effect.

Today, any juror with knowledge gets excluded. Beyond the first secret ballot, the verdict reflects the opinion of the biggest loudmouth, and the rest who just want to go home. They face complex and hard to understand concepts. Their lives are being disrupted, and they are losing money. They are being coerced under threat of jail to serve against their will.

They end up saying to themselves, I do not understand. I do not want to learn to understand the plumbing business or whatever the lawsuit is about. Eff all of these clowns, especially the one with the guns on the bench. Any question is bounced back by the clown on the bench. He refuses to help us. I am voting for the side that I just like. I just want to go home.

This is totally unacceptable Medieval garbage methodology. It is worse than that, because any advantage of the Medieval jury has been removed by the lawyer.

It gets worse. Most educated, thoughtful people have very properly, said to themselves, this jury duty is bs. I am not participating in this farce. They get themselves excused from jury duty. All that remains are members of the leisure class, welfare queens who support a criminal at their house, and who maintain trash notions of morality, are not listening, do not believe in any rules, and cannot be told what to do. They are Democrats, anti-business, pro-criminal, pro-rent, just as all the lawyers in that church looking court are, including the lying defense attorney, a traitor to his side, in total cahoots with the other side, the source of his job.

The lawyer dumbass is in total denial about the utter worthlessness of this Medieval idiocy. The professor has had 10th grade World History removed from her memory, and she has become just another criminal cult enterprise indoctrination victim. I bet she cannot understand a word of this comment. She would answer, "What? I do not get it. The jury is the best judge of the facts or of the truth."

Posted by: Supremacy Claus | Sep 3, 2010 10:04:50 PM

Soronel --

"Being trusting of jurors only when they show mercy is little more than a shell game."

Bingo. I wonder if anyone will attempt an analytical answer to that.

One more example: If the jury is empowered to judge the law as well as the facts, will it be able to judge the law that requires proof beyond a reasonable doubt? If, for example, in a small community, the defendant is known as the local lout, thug and bully, but the evidence comes up a mite short in the case the jury has before it, do the nullifiers think the jury has a right to convict anyway, on the theory that that is the just result?

What nullification almost always turns out to mean is an acquittal of a guilty person because a particular jury disagrees with the law. But (1) that is by no means what nullification NECESSARILY will produce, and (2) the legislature is a far better -- because more broadly drawn -- barometer of community sentiment than any given jury.

Nullification of law used to go by a different name, i.e., vigilantism. I am not among those who would like to bring it back.

Posted by: Bill Otis | Sep 3, 2010 10:26:44 PM

Who here believes that strangers off the street can detect the truth by using their gut feelings, after excluding any with knowledge? What is it that is really being detected?

The system does not look ridiculous to people in total denial about the junk nature of this methodology.

Posted by: Supremacy Claus | Sep 3, 2010 10:39:18 PM

I agree with Bill that we should not condone jury nullification. That flies in the face of the Rule of Law.

SC, how many cases have you prosecuted or defended in front of a jury. In my experience, most jurors take their responsibility very seriously. Sure, there are exceptions, but then perfection is the oppressor.

Soronel, I'm not following your comment. Juries have a role to play and we should respect that, judges have a role and the legislature has a role, and we should respect those roles. Elaborate, please, Soronel, on your comment.


Posted by: bruce cunningham | Sep 4, 2010 8:39:37 AM

"I wonder if anyone will attempt an analytical answer to..." Soronel's shell-game notion.

Not me. Though it should be noted jurors often don't have a clue about what's in store for a def if they convict. Without an awareness of the consequences how can one judge to what extent mercy might have been a factor?

Certainly there's bound to be more mercy for a guy facing 30 years for seemingly inconsequential regulatory infractions, for example, than if the likely punishment were more on the order of a fine or probation or maybe six months.

Consider, too, that any surviving merciful impulses in the jury pool have endured hundreds (thousands?) of beatings from crime-issue demagogues over the past 40 years (including some heavyweight champions who post routinely on this blog). As with anything rare, merciful juries should be valued more highly for their scarcity and tenacity if nothing else.

Posted by: John K | Sep 4, 2010 8:53:12 AM

Contrary to Bruce's view, jury nullification provides one small ray of hope in an ever darkening system that has become way too enamored with overcriminalization and mindlessly harsh punishments.

Posted by: John K | Sep 4, 2010 8:59:10 AM


I call taking only the merciful side of jury nullification a shell game because while it sounds good it hides the fact that its proponents are mostly trying to accomplish something they have been unable to obtain through the normal legislative process.

Trying to end the war on drugs (from everything I've seen a major target of jury nullification proponents) by nibbling away at individual convictions rather than the underlying policy is exactly the sort of substitution I would expect from a con artist.

Posted by: Soronel Haetir | Sep 4, 2010 11:11:28 AM

Well, jury nullification is a central consideration in the survival of our Criminal Justice System. (not the same thing as survival of the Judicial Branch)

Citizens must have confidence in the integrity and fairness of the the law, law enforcement and prosecution. If they do not, jury nullification will be the least of the resulting change. Yes, one part of this integrity is the jury's knowledge of the length and severity of the sentence.

Posted by: beth | Sep 4, 2010 11:45:09 AM

Question for those taking an anti-nullification stance: Would you have voted to convict Harriet Tubman guilty of Felony violations of the Fugitive Slave Laws had you been in those juries?

"...it is not only his right, but his duty – to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."
--John Adams

"If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant's natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law."
--Chief Justice Harlan F. Stone

"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 jury has the right to determine both the law and the facts."
--Samuel Chase, U. S. supreme Court Justice, 1796, Signer of The unanimous Declaration.

"The jury has the power to bring a verdict in the teeth of both law and fact."
--Oliver Wendell Holmes, U. S. supreme Court Justice, 1902.

"The law itself is on trial quite as much as the cause which is to be decided."
--Harlon F. Stone, 12th Chief Justice U. S. Supreme Court, 1941.

"The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge..."
--U. S. vs. Dougherty, 473 F 2nd 1113, 1139, (1972)

"Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off... This gives me comfort-that, as long as I have existence, my neighbors will protect me."
--Patrick Henry (Elliot, 3:545, 546).

Posted by: DanF | Sep 4, 2010 11:51:56 AM

Folks who are in favor of jury nullification,

Would you allow me to argue to the jury during closing statements why they should nullify? Would you allow me to introduce evidence during the trial to support my arguments?


Posted by: bruce cunningham | Sep 4, 2010 1:50:17 PM

Yes, Bruce. Absolutely.

Posted by: John K | Sep 4, 2010 3:29:41 PM

So, I can introduce during a capital trial evidence showing that it is cheaper to lock someone up for life than it is to execute them?(which it is)

Or, I can argue that, since the legislature lowered the mandatory minimum for the offense charged from what it was at the time of offense that "ladies and gentlemen, even the legislature thinks that the sentence that the prosecutor wants my client to get is too much."

Or, that North Carolina's felony murder rule or habitual felon statute are the most draconian ones in the country and that NC is simply out of step with the rest of the United States?

Are you sure you want me to be able to argue jury nullification?


Posted by: bruce cunningham | Sep 4, 2010 3:49:35 PM

Dan F Thank you for the quotations. This article was organized, coherent, informative and full of critical thought. Unlike many - it is worth a read - in short I liked it.

Fear of jury nullification is an emotion. Some fear it because it means the state is losing it's grip and authority. Other fear it because it means citizens no longer respect their government. For whatever reason, when law is not understandable, it does lose it's authority and citizens do not respect those who make the law - those who enforce the law - or those who interpret the law.

Unfortunately split opinions and relentless litigation do say - The law is not clear.

A couple of my favorite quotes "Juries act as a circuit breaker for power surges that threaten to collapse the system."
"The jury is a bridge between the text of the law and the values and moral sensibility of citizens."

We have a populist surge. I don't know where it will go, but when citizens decide the Emperor wears no clothes, authority will be difficult to enforce.

Posted by: beth | Sep 4, 2010 8:32:50 PM

Bruce: In my line of work, the jury is the sole friend in the court. So I like juries. I question their accuracy and scientific validity due to lawyer rules. I believe the Medieval jury with knowledge was better than the one of today.

Try this experiment. The next time you are called for jury duty, please, do not try to get out of it. Give the answers in voir dire that will get you seated without lying about anything. At the end of the trial, vote for the verdict you believe is the wrong one. If 11 others disagree so much the better. Now try to persuade them of your knowingly wrong position. See how far you get. I bet a lawyer with your skill has them all voting the wrong way within a short time.

Experiment over. Tell them they were right to begin with and to render a proper verdict.

I think, Prof. Berman should have you as a guest contributor to report on this experience.

Posted by: Supremacy Claus | Sep 4, 2010 10:24:48 PM

DanF --

"Question for those taking an anti-nullification stance: Would you have voted to convict Harriet Tubman guilty of Felony violations of the Fugitive Slave Laws had you been in those juries?"

I would not have been on such a jury because I would have told the judge the truth at voir dire, namely, that I had prejudged the case and would not be amenable to the exchange of views and deliberation required of jury members.

Now permit me to ask you the question you skipped over: If, in a small community, the defendant is known as the local lout, thug and bully, but the evidence comes up a mite short in the case the jury has before it, do the nullifiers think the jury has a right to convict anyway, on the theory that that is the just result?

Posted by: Bill Otis | Sep 4, 2010 11:24:13 PM

Bill: The criminal law should be about the person, because there are 10 crimes for every prosecution. The lawyer has immunized the criminal to maintain lawyer jobs. So, the local killer and child molester is being tried for shoplifting, but the evidence is ambiguous. You bet he gets the max for the false conviction of shoplifting. And if 123D were in force, the death penalty for shoplifting. That is why jurors with knowledge should be encouraged, not excluded.

Don't get too huffy. The lawyer does the same. Capone has made a real nuisance of himself by leaving a trail of hundreds of bodies. He unintentionally forgets to file a tax return. He never again gets back to the street for that not for the mass murders.

Posted by: Supremacy Claus | Sep 5, 2010 5:59:52 AM

SC, What is your "line of work?"

Since you didn't respond to my question, I assume you have never tried a case.

Bill, good point about nullification in favor of the state. Kent, help Bill and I out here. I am confident that you don't believe juries can just ignore the law and decide cases on the basis of things that were never presented during the trial or argued by the lawyers.


Posted by: bruce cunningham | Sep 5, 2010 10:35:55 AM

Mr. Otis -- "If, in a small community, the defendant is known as the local lout, thug and bully, but the evidence comes up a mite short in the case the jury has before it, do the nullifiers think the jury has a right to convict anyway, on the theory that that is the just result?"

They could, I suppose, but the thug's lawyer would probably have a field day at the appeal.

That said, I don't think your example pertains to nullification. Nullification involves a juries' prerogative to refuse to enforce a "bad law" even though that "bad law" was clearly broken. Harriet Tubman exemplifies this. She clearly violated the Fugitive Slave Act but the jury refused to convict based on their belief that helping runaway slaves find freedom is not a crime. The law was broken, but the jury saw no crime. That's what nullification is about.

Posted by: DanF | Sep 5, 2010 11:09:31 AM

I've done better than tried a case. I have beaten several cases. Only the juries saved me, certainly not my defense lawyers. My emotional bias is to be really grateful for juries. As a member of the defense bar, what is the fraction of not guilty verdicts that you are running? (See. I told you so. The defense lawyer is not a friend to the defendant, only the jury.)

My problems with the jury are not solved by my verdicts.

1) No knowledge of complex technical and personal issues. Impossible to impart an engineering or police education in a few hours. Stop excluding those with knowledge.

2) No secrecy after the first ballot, and vulnerability to bullying, so everyone can go home.

3) The potential nullification of the nullification by just one loudmouth. Put a lawyer on the jury. He can move 11 other votes to reverse the self-evident verdict (done in real life, and described in private communication).

4) Physiologic measures of deception are banned by the Rules of Evidence (lie detector results). Yet, gut feelings of know nothing strangers about what is true are OK. This is cuckoo lawyer delusion.

5) Lawless taking of juror time without adequate compensation. Like shanghaiing sailors in a San Fran saloon in 1868. You fall through a trap door, someone hits you over the head. You wake up 100 miles out to sea on the way to China. And all you wanted was a drink (like all you wanted was to vote, and now your are on a target list).

6) Excusing from duty or excluding in voir dire all educated people. The selection should be completely randomized, and no one should be excused. That is necessary if the idea is to get a selection representing the general population. This makes the jurors grumpy, and biases them against the defendant, "But for your irresponsible, selfish, criminal conduct, I would not have to lose 2 weeks pay. Thanks a lot a-hole."
Judges should be put on the jury shanghai list.

7) Not allowed to take notes. Not allowed to ask questions in middle of trial, for example, "I didn't hear that. Can you, please, repeat it?"

In 1275 AD, the jury was a marvel of innovation and justice. It allowed people with knowledge. It permitted the wisdom of the crowd effect. It worked in bringing verdicts to where the mean of the population's ethics was, as opposed to eccentric bizarre, idiosyncratic feelings of judges. The lawyer hobbled and eliminated these positive features to better control the trial, a false charade designed to generate fees.

Posted by: Supremacy Claus | Sep 5, 2010 12:49:31 PM

SC, you still haven't answered either one of my questions.


Posted by: bruce cunningham | Sep 5, 2010 12:57:39 PM

Bruce --

I think Kent is on vacation this week.

DanF --

1. The Fugitive Slave Act was passed by a Congress that was not "democratic" in the sense that we recognize now, and whose laws therefore were not entitled to the same respect. The franchise consisted basically of a very small segment, that being, mostly, property-owning white males 21 or older. The vastly more representative law making body we have now is due vastly more respect as the embodiment of community values.

2. Here's another nullification I ask you to consider: White juries in the Deep South for the first 50 years (at least) of the 20th Century believed that white people should not be punished for murdering blacks (generally through lynching), because blacks had to "be kept in their place." This was the authentic community sentiment, although it was point-blank at odds with the law against murder, which drew no distinction between black and white. Accordingly, it was often the case that these juries would nullify the law by refusing to convict factually guilty whites who had killed blacks.

Under your view of nullification as the right (if not the duty) of the community, these acquittals were A-OK.

As bruce points out, once you unleash the jury thinking it will share your views, you have also unleashed it when it shares views very different from yours.

Either we live with the rule of law or we don't. I know what my choice is.

Posted by: Bill Otis | Sep 5, 2010 3:06:59 PM

Bruce: We are not in a deposition. Relax.

Posted by: Supremacy Claus | Sep 5, 2010 11:00:27 PM

SC, you have asked me many questions I have answered. You have decided, for some unknown reasons, not to reciprocate. My sense is it is because you do not want folks on the list to know the answers.


Posted by: bruce cunningham | Sep 6, 2010 11:11:36 AM

Jury nullification does not require the judge to comply with their nullification, i.e., "verdict notwithstanding the jury" sort of thing...as I recall. Perhaps I am too out of date?

Posted by: Throsso | Sep 6, 2010 4:55:23 PM

Bruce: I have never tried a case before a jury, just before judges, and representing myself, with mixed results. I am not a lawyer. I am an owner of the law, if you will agree. Think of me as a new animal, a law savvy party. The powers of such an animal are yet unknown. This is a person who knows a little law, and the facts of a field. Experts in a field know no law, and are rather naive. Lawyers know the law, but nothing else of any technical field. Someone who knows both can do rather unique things in issue spotting, legal bullying of people in the field and of lawyers, including judges, by making policy arguments. Finally, such a person will propose all out destruction of the adversary of the field, including, plaintiffs, lawyers, and yes, judges. Ordinary counsel or defense firms go crazy, because one it trying to get their meal ticket to off himself or to leave the business. To deter.

Posted by: Supremacy Claus | Sep 7, 2010 1:36:31 AM

Mr. Otis -- Seems to me that you're contradicting yourself. On the one hand you claim "Either we live with the rule of law or we don't" but on the other you claim that some "laws therefore were not entitled to the same respect." Which is it? Is the state perfect in every way or is the state fallible? Is every law to be obeyed unquestionably or are some laws deserving of being questioned?

Regarding the situation you describe in #2, while that certainly was a perversion of justice it was an exception. There are countless examples of instances where jury nullification worked in justice's favor. I challenge you to come up with more examples of where it worked contrary to justice.

Posted by: DanF | Sep 9, 2010 11:47:18 AM

Bill Otis's second example is flawed because those juries were not validly constituted from a cross-section of the community. African American community members were excluded absolutely (whether in a manner de jure or de facto) from service on those juries. For reasons related to Mr. Otis's comments on the Fugitive Slave Laws, the actions of such a jury are due "vastly" less respect than those of a properly constituted jury.

I'd also note that Mr. Otis's response that he would never have been on a Fugitive Slave Act case because he would have told the truth about his prejudgement and been excluded for cause seems to evade the premise of the question, because if the jury had the power to judge both law and fact, it is hardly clear that disagreement with the law would consitute the basis for a valid exclusion-for-cause.

Posted by: Anon | Sep 13, 2010 1:34:20 PM

Despite concerns over racial disparities in imprisonment, little empirical attention has been paid to how changing the structure of sentencing might affect levels of disparity.

Posted by: Switzer | Dec 21, 2011 12:31:06 AM

I'm a student but not in the traditional sense of the word. I have a turn for the law and am a lifelong student.

As far as returning the 1st mandate of any jury - to try the laws made. It is of the utmost importance to law that a jury be more than just another branch of the prosecution. If the prosecutor can violate law by writing words on paper that everyone else must obey at his discretion, than you have little more than judicial tyranny.
Tyranny will and often does come in any form that will allow it and to disallow the very first thing that a jury was established (with great rigor and personal expense, not to mention bloodshed) to do is criminal in itself; and will lead us down the road to further tyranny at the expense of all those who follow us who will curse us under their breaths and above our graves for giving back what was so long fought for.

Posted by: meesphht | Jul 4, 2014 1:06:39 PM

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