Jury Power To Decide "Law and Fact" in All Criminal Cases:
Apropos the Jury Rights Day post, I thought I'd mention that the Indiana, Maryland, and Oregon Constitutions specifically provide that:
- Indiana: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts."
- Maryland: "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.
- Oregon: "In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases."
I'm not an expert on jury power and jury nullification, though, and I can't speak with confidence about the precise original meaning of the phrases, or about how judges have interpreted them. I should also note that quite a few state constitutions (including that of my own California) expressly guarantee a similar power, but only in libel cases.
(This material originally appeared in the Jury Rights Day post, but a few minutes later I decided it merited a separate post.)
Litigants have an original right to have all issues of law argued in the presence of the jury, so that they may review the positions of the bench in reaching a general verdict.
That essentially means that justice has been denied in almost every criminal jury trial for more than a century.
Suppose the defense wants to argue some point of law, procedural or substantive. Does Jury being the Judges of Law allow the defense to insist on submitting 12 briefs, conducting a legal argument in front of the Jury, and doing in front of the Jury everything else normally done in front of a judge in such situations?
"The right to determine the law" may be interpreted as the right to get the judge to answer what the law is, but "the Jury shall be the Judges of Law" sounds pretty strong.
Please elaborate re your second paragraph. If all legal issues are are to be hashed out before the jury, this would mean an open invitation for prosecutors to air 20 year-old bad acts, no? So whatever the original due process standard was, it is at least modified by evidence codes, and in fact the latter might provide greater protection for the defendant than the jury consideration of law, right? If this is wrong, would be pleased to know.
The bench would decide motions, but in reaching a verdict the jury would review those decisions.
It would have been unthinkable to try to sanction attorneys for trying to argue the law in the presence of the jury. The very concept of jury trial encompassed doing so.
What happened to the oath by judges to uphold the constitution of their state?
I'm frankly all in favor of a jury refusing to convict in a case of what it sees as an unjustified prosecution. But that can also lead to serious injustices. In the Jim Crow South it was fairly routine for juries to acquit defendants (if they were even prosecuted) for pretty horrible racist crimes, no matter how strong the evidence of guilt. So jury nullification was one way that blacks were deprived of the protection of the law.
Is it possible to balance the risks of this sort of nullification against the benefit of a jury being able to tell a prosecutor to go f***himself?
That reminds me of school prayer... especially the case about teachers who would simply inform the students that they had a right to pray if they wanted to during a moment of silence (which is true), but it was unconstitutional for the teachers to tell them they had that right.
when state prosecutors didn't.
Are you saying that the state prosecutors tanked the cases?
Maybe they did. Still, as someone who lived in the south during that era, I'd be surprised to learn that juries were willing to convict. Are you sure the jury pools were the same?
Here is the relevant passage from Article I, Sec. 9:Source: Constitution of the State of California and of the United States and Related Documents, published 1963 by the California State Senate.
What little I recall of the history of criminal libel is that truth was not always a defense. If that is so, then the California constitutional provision essentially codified a reform making truth a defense. In that context, it is not unreasonable that the provision making the jury the judge of law and fact was influenced by the earlier Penn or Zenger cases. But that is just my top of the head speculation.
There is also a related action of refusing to convict because the due process rights of the defendant have been violated, either by the arresting officers, the prosecutor, the bench, or perhaps by conspiracy of witnesses. This is not technically nullification, because a statute, regulation, or charge is not what is being rejected. However, it could be called nullification of a policy, custom, or practice of the criminal justice system.
I think you're drawing a meaningless distinction. You write:
Nullification is about disagreement with what the bench or prosecutor claims is the law.
But a racist jury that refuses to convict is, or may be, saying that in its eyes crimes of violence against blacks ought not be against the law, at least under certain circumstances.
I interpret the term "jury nullification" to mean the jury placing its own sense of right and wrong above the law. It seems to me that can be desirable (when I agree with the result) or not.
I think Mr. Roland draws a very meaningful distinction. A jury that acquits a white man but would convict a black man on the same facts is not "nullifying" but is biased. Nullification is as Mr. Roland has defined it, though I would also argue that a jury can nullify if it agrees fully with the law as generally applied but thinks the prosecutor should have used discretion and not brought the case.
I don't agree with everything Mr. Roland has said, but I certainly agree with him as to what nullification is, and I don't have any problem at all with juries doing it. I disagree with Mr. Roland, though, when he says that a defendant should necessarily have (what I understand to be) a common law right to have juries hear legal argument to assist them in nullifying.
Whether the Federal courts used the same registered-voters jury pool that was typically used for state-prosecuted crimes in the Jim Crow South, I can't speak to . . . but they would have been juries of Southerners, and they returned convictions.
2) As to singling out libel -- a lot of Framing era commentary viewed the right to jury trial as esp. potent in seditious libel cases. If a public official brought criminal libel charges against a citizen, the power of juries to decide that it was truthful, and "he had it coming" was important. Same with civil jury trial. With the latter, it was almost THE argument for civil juries and the 7th, or whatever, amendment.
3) Frankly, trials then were a lot more interesting. Today, with the advocate often confined to a podium, and arguing only the facts and the instructions, there are a lot of really boring advocates. But for the fact that the jury is hearing their first trial, I suspect they could barely keep awake and would, like many judges, be doing paperwork while listening.
Can the jury /convict/ against the weight of the law because they believe the law is unjust in NOT criminalizing certain acts?
This seems to be one-way ratchet only.
You are trying to define away some of the ugliest effects of jury nullification. You say "bias" is not "nullification." Well, it is nullification if the law forbids it and the jury decides that the law does not forbid it. If the judge instructs the jury that the law does not sanction racial bias and the jury decides that it does, they are nullifying the law against racial bias. The same result might obtain in a Matthew Shepard prosecution. If the judge instructs the jury that the law does not justify or excuse murder merely because the victim was a member of a despised minority (i.e., a gay) and the jury decides that the law does justify or excuse such a murder, the jury is nullifying the law relating to justification or excuse of murder. The nullification is motivated by bias, but it is nullification nonetheless.
The jury's power to decide the facts has been interpreted by the Indiana Supreme Court to mean that the jury has the authority to ask questions of witnesses. A juror will write a question out on a piece of paper and the judge and attornies will argue over the admissibility of the question. The judge will then either ask the witness the question or, if the question is inadmissable, instruct the juror and jury not to discuss the question or a possible answer to the question.
I'm not denying it, D.RM., just asking about it. I'd like to have more information on these federal prosecutions. I don't recall there being a lot of them at the time. After all, some of these cases have only been prosecuted recently.
That doesn't mean there weren't successful federal prosecutions at the time, just that I'd like some substantiation of the claim. One question I have is whether it even would have been possible for there to be such. The federal cases seem to be about violating the victims' civil rights. Did the appropriate statutes even exist in the 50's and early 60's?
No. A motion in limine is not, in general, an argument on a point of law, but on evidence. However, in criminal cases I would only allow motions in limine for defendants, not prosecutors. Now, in a more complete statement of my position, I allow for excluding argument on points of law that cannot be made without disclosing evidence that is properly excluded. For example, it would be okay to exclude argument on a statute that excludes polygraph evidence, if it could not be made without disclosing that the defendant had failed a polygraph test.
Remember, the jury is not deciding motions, or adopting instructions, but to reach a general verdict it needs to be able to know what decisions the bench made and why, and to decide whether the decisions were correct.
Everyone should read the Stettinius opinion. It reveals what a jury trial meant when the Constitution was adopted, and there has been no amendment changing that meaning since. It doesn't matter whether you think that standard was a good idea. It was the standard, and until altered by amendment, it must remain so.
No such law can apply to jurors, because to do so, it would have to prescribe punishment of jurors for the way they reach their verdicts.
It would only be nullification to refuse to apply it to a defendant for violating it, and they might very well decide the statute is unconstitutionally void for vagueness.
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