I don't think so.
I bring this up because the U.S. Attorney for the Southern District of New York has indicted Julian Heicklen, an activist who hands out jury nullification materials to potential jurors outside federal court in Manhattan.
Smarter people are already talking about the First Amendment issues. I want to talk about jury nullification from the perspective of someone who has tried criminal cases both as a defense lawyer and as a prosecutor.
Activists like Heicklen believe that jurors need to be taught about a right to vote their conscience rather than follow trial judges' instructions. I'm skeptical.
In my experience, jurors already do exactly what they want to do, and create justifications and rationalizations for doing so. Many jurors form their impression of how the case should come out during opening statements, and then implement their preference during deliberations.
The justifications and rationalizations are not always polished. Any trial lawyer who has ever interviewed jurors after a verdict will tell you that their explanations of their thought processes can range from inexplicable to bizarre to terrifying. And that's when you're talking to jurors who found in your favor.
This shouldn't be a surprise. People, in general, tend do to what they want to do and then rationalize their behavior. It's not our fault. Blame the way our brains are wired. There's no reason jury decision-making would be any different.
So: why do we believe that jurors need to be encouraged to do consciously what people already naturally do unconsciously? Is there a basis to believe that there is a large population of jurors who would refuse to follow laws that they find unjust, but scrupulously return verdicts they find unjust and unpalatable? I doubt it.
So I think that jury nullification advocates are offering people a rationalization for doing something that they are already doing just fine by themselves. Jurors are going to continue to acquit sympathetic defendants facing overwhelming evidence, and convict unsympathetic defendants based on weak evidence.
It's odd, though, that jury nullification advocates tend to present nullification as a bulwark against government tyranny. Nullification is tyranny-neutral. Ask anyone who has ever tried to convict a cop of using excessive force, or defend someone accused of "resisting arrest" or "assault on a police officer" in the course of being subjected to such excessive force. Nullification can lead to conviction as easily as it can lead to acquittal. Even were that not the case, acquittal is not inherently anti-tyranny. Tyrants, petty and great, can (rather occasionally) be put on trial, and their acquittal can be a blow for tyranny, not against it. Nullification is a mirror of juror prejudices, and plenty of jurors are prejudiced in favor of the state, in favor of "safety." That's why defense lawyers are not unanimous fans of nullification. If one side of the coin is jurors refusing to convict a marijuana user, the other side is white jurors refusing to convict a white defendant for killing a black man.
Last 5 posts by Ken White
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
- Free Speech, The Goose, And The Gander - June 17th, 2017
- Free Speech Tropes In The LA Times - June 8th, 2017
- I write letters - June 1st, 2017