ElcomSoft Jury Denied Access to full DMCA Text

ryochiji writes "Wired Online is reporting in this article that the jury in the ElcomSoft trial requested access 'to the full copy of the DMCA to assist in their decision-making' but was declined. 'Instead, [Judge] Whyte said he would answer specific questions jurors had about portions of the law they must consider in determining ElcomSoft's guilt or innocence.' I don't know if this is common practice in the court of law, but it somehow doesn't sound right ..."

Comments

It isn't that uncommon...

[leviramsey]

...it's generally done on the grounds that the law is so obtuse that the average juror wouldn't understand it...

Kind of makes you wonder why they don't simplify the law a little, don't it?

Re:It isn't that uncommon...

[leviramsey]

53c0nd p057 too!

Re:It isn't that uncommon...

[Hanji]

Kind of makes you wonder why they don't simplify the law a little, don't it?
Because if anyone actualy understood these laws, they's never accept them like they do now.
As it is, many people who might be strongly opposed to these laws just ignore them because they don't have the time/energy/will to wade through all the legalese BS
</Conspiracy-Theory>

Re:It isn't that uncommon...

[TheGratefulNet]

its one thing to answer questions when directly asked (the jury asks the judge and he answers).

its quite another to DENY the text of the law to ANY CITIZEN if s/he requests it.

I know, the law, in this case, is 100 pages long and I assume the judge is trying to save time since the jury probably won't be 'smart' enough to understand the text.

still, its very wrong to deny the text to them.

Re:It isn't that uncommon...

[Anonymous Coward]

100 pages to deal with a relatively small subset of society and we're supposed to "obey the law". Does anyone else think that it became impossible to actually understand what is forbidden and what is not a long time ago? In my opinion that simply got replaced by the fear of breaking some unknown law whenever one does something that isn't completely mainstream. That of course means that the world is owned by unscrupulous people who consider their advantage first instead of assuming that what they want to do might be against the law if it harms others.

Re:It isn't that uncommon...

[Twirlip of the Mists]

Oops. Forgot to click "post anonymously" that time, huh? ;-)

Re:It isn't that uncommon...

[dbrutus]

I find it amazing that a jury deciding a case has less access to the text of the law than any convicted felon in the United States of America.

If the judge is elected, he needs to be recalled, if he's appointed he needs to be impeached.

Re:It isn't that uncommon...

[roseblood]

Please mod the post that I've responded to up. It needs to be 5, Informative.

Re:It isn't that uncommon...

[qqtortqq]

Laws have to be written the way they are so they can be enforcable.

Exmaple 1) You can't have sex for money.

Example 2) A person who knowingly or intentionally:
(1) performs, or offers or agrees to perform, sexual intercourse or deviate sexual conduct; or
(2) fondles, or offers or agrees to fondle, the genitals of another person;
for money or other property commits prostitution, a Class A misdemeanor. However, the offense is a Class D felony if the person has two (2) prior convictions under this section.


If you were arrested for the "can't have sex for money" law, and it wasn't spelled out like it is in example #2 (the indiana state prostitution law), any lawyer could get you off the hook. My client didn't have sex, just played with her stuff. My client never actually had sex with the prositiute, the cops broke it up before they could. My client didn't pay the hooker, only gave her a crack rock. My client etc...

If you take the time to read the laws, they really aren't all that confusing.

Re:It isn't that uncommon...

[orthogonal]

(1) performs, or offers or agrees to perform, sexual intercourse or deviate sexual conduct; or

And in all seriousness, where is "deviate sexual conduct" defined?

Again, in all seriousness, a sitting US President (and at that time, a member of the bar) claimed oral sex wasn't sex.

Re:It isn't that uncommon...

[SablKnight]

Wow, legal proof that you should always split the check...

-SablKnight

Re:It isn't that uncommon...

[Anonymous Coward]

--
Week 13 NFL picks

FYI: It's now Week 16. Week 15 officially ended last night.

Re:It isn't that uncommon...

[Nevermore-Spoon]

"The more corrupt the republic, the more numerous the laws." --Tacitus

Re:It isn't that uncommon...

[OwnedByTwoCats]

The law is not common sense.

The law has no problems with a substance being simultaneously "Generally Regarded As Safe" and "Known Human Carcinogen".

According to the definitions that the court provided, William Clinton did not have sex with Monica Lewinski. He touched her mouth, which was not how the court defined "sexual intercourse". On the other hand, she did have sex with him.

On the surface

[Apreche]

This seems really bad. And don't get me wrong on this, I don't like the DMCA nor do I think skylarov should be thrown in jail.

However, it is my understanding that it is the job of the judges to interpret the law. Just as the congress makes the law and the president enforces the law.

So if the jurors were allowed to read the law they might make their final judgement using an interpretation of the law contrary to the judges interpretation. This could be GOOD or BAD, depends on the judge and the jurors.

Re:On the surface

[zeugma-amp]

From The Juror's Handbook as published by Fully Informed Jury Association

As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))

Or as this same truth was stated in a earlier decision by the United States Court of Appeals for the District of Maryland: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969)).

The power of the Jury to judge both the facts of the case at hand and the law itself was widely recognised and indeed lauded by the founders of this nation. I've got some documentation on it, but don't really feel like looking further at the moment. I'm sure others on this thread will.

Re:On the surface

[digitalmuse]

that sounds like a very reasonably point. Do the rules and regulations of the courtroom explicitly state this? What reasoning is offered in the existing body or law or in defense of the practice as it stands. As legal contracts and rights-licensing issues become more invasive in today's society, should 'bad law' (or contract or any other legal document) be written so badly as to be indecipherable to a group of 12 mature adults? I'm not suggesting that we make every contract a dick-and-jane story for the lowest-common denominator, but can't we get contracts written in plain english. Is there a precident for this or somewhere in the juror's rules of conduct. Does someone explicitly say that the legal system can filter what amount of 'relevant' information gets passed through to the jury.
Laws are the rules of our society. And they need to be understood. Not just by the people that write them, but by the people who are agree to be governed by them.
I for one like to know what the government around me can do. I like to know how the leaders and programs I support are affecting my world.
I don't fear bad cops, I fear bad law. ...just a thought

(no disrespect to the good folks of defendbrooklyn.com. I lived there for a while and still love that place, but yeah it's a tough town some blue nights. fulton sq.=missing ya. this is a real bad cop )

juries don't usually consult the law directly

[Twirlip of the Mists]

Juries in criminal cases such as this one don't usually consult the law for themselves. It's not that they can't, or that they're not allowed to, or that they shouldn't; it's just that juries are given instruction in matters of law by the judge.

Seems to me that it's entirely appropriate that the same thing happen here. If jurors have questions about the law, they're free to ask the judge at any time.

The important thing to note here is that this is a trial court, not an appellate court. The law itself is not up for review. The jury is only allowed to decide the facts of the case within the law as it is written. Deciding whether the law is okay or not is for another court.

Re:juries don't usually consult the law directly

[Anonymous Coward]

And how are they supposed to "decide the facts of the case within the law as it is written" if they're denied access to the law as it is written?

Re:juries don't usually consult the law directly

[Henry V .009]

Goddamn, but that is just dumb. Your first point is completely wrong, and your second point shows that you didn't even understand the topic.

Juries get to read large chunks of the law all of the time. They usually receive an interpretation of the statute from the judge as well. The two are not exclusive. If you ever sit on a criminal jury, you may find yourself making decisions as to which statute best fits the crime--all from the statutes as they are written.

Your second point claiming that "the jury is only allowed to decide the facts of the case within the law as it is written," is true (whatever the libertarians have to say about it) but beside the point. You're way off in left field with it. There is no evidence whatsoever that the jury is trying to decide whether or not the law is just--rather they want the text of it to see whether or not the DMCA applies in this case. That is a common request and rarely turned down.

In a few years after you graduate high school you will be called for jury duty (god help us) and find out what it is really like.

Re:juries don't usually consult the law directly

[curious.corn]

Yeah, but the law can be interpreted by the judge in a way that can heavily influence the finall decision. It's power becomes such that it can manipulate the conclusions of the jury rather than act as an informed party. It depends on who's supposed to originate the sentence:
the people or the judge.

Both conspiracy parties have good points to score. In one case the jury could be misled by a biased judge while another POW would suggest that the learned judge should have the power to correct prejudice in the jury.
In the end it depends on the balance of power between the two deciding bodies

Re:juries don't usually consult the law directly

[MacAndrew]

IAAL, and your explanation snaps me back from my befuddlement at this story. I couldn't figure out what was going on until I remembered "jury instructions". Yes, of course, jury instructions are prepared with the input of both parties, in what is supposed to be plain english, and are subject to appeal. From working on an appellate court, believe be these instructions are gone over with a fine-tooth comb. If the DMCA is improperly representaed, or its content changes because of the result in an intervening case, the verdict (guilty -- innocence doesn't typically get appealed) was be vacated and remanded for retrial.

Translating the law into jury instructions is routine. I'd probably appreciate it if I were a juror! It's not that statutes can't be understood by the layperson, it's that their meaning depends on carefully chosen terms of art (like "willfully" as a specific and perhaps surprising legal meaning that would be spelled out for the jury) and precedent from this or related statutes. Thus a statute usually must be researched and interpreted to apply it, and interpretion is not normally the province of the jury.

In short, if anyone things this is a DMCA conspiracy it's not, and if they thinks it's unfair to the people, it's not. Folks the ACLU would otherwise be apeshit (to use the technical legal term).

I disagree on "Deciding whether the law is okay or not is for another court." -- trial courts declare statutes invalid as easily as any other court. Their decisions are reviewed by the appellate court de novo, which means the trial judge gets no deference, the theory being that any judge can evaluate the law regardless of whether they were present at the trial. Questions of fact may well require deference to the trial judge, who saw the witnesses testify. On the other hand, the trial court is bound by precedent, the rulings of higher courts. Once the upper court decides something, lower courts do not get to second-guess it.

Lastly, there is one way jurors do pass on the valdity or even sense of a law or a particular prosecution, called jury nullification. Nullification is where the jury basically acquits where it should have convicted. This "power" (it is not technically legitimate) has been used for good and ill, and has no lasting impact on the law. But once a valid acquittal is entered, retrial is normally (not always) barred by double jeopardy. (Notice how I have to ut siclaimers all over the place -- the law is complicated, and not just a matrix of arcane rules. Rigid, easy to understand rules often sacrifice justice in the name of clarity. Notice also that I have trouble stopping writing once I begin. :)

Re:juries don't usually consult the law directly

[sweetooth]

My only concern about giving the jury the full text of the law is that there is a lot of text and they may or may not understand it all. Burying the jury in 100 pages of legalise can destract them from the task at hand. On the other hand, the lawyers involved in the trial focus on what they feel is important. What they feel important and what is important to applying the law fairly can be two differant things. Especially if your goal is setting precedent for future trials.

Re:juries don't usually consult the law directly

[dh003i]

Yes, it is good that the jurrors get a fine-combed interpretation of the law, reviewed by the defense attorney, prosecutor, and judge. But it is still most certainly necessary that they have access to the primary data -- the text of the law. To use an analogy, I may read a review article on the free radical theory of aging. The author -- an expert in the field -- has clarified things for me and given me a good general overview. But it is still necessary -- if I am to make an informed decision about whether or not (s)he's right, and to (for example) cite the studies that the author reviewed -- for me to go to the original papers (the primary data) and read them myself.

Having the jury "understand" the law through the instructions of the court alone simply introduces an extra unnecessary point of error into the process.

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

You know, you're kind of an asshole. Just in case you weren't aware.

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

Burying the jury in 100 pages of legalise can destract them from the task at hand.

Speaking of which, does anybody know where this "100 pages" thing came from? Chapter 12 of Title 17, which is (I think) the relevant body of law, is only 13 pages long. Where did Ms. Glasner get her "100 pages" thing?

Re:juries don't usually consult the law directly

[Henry V .009]

Brilliant riposte. How could I ever reply to such a witty retort? I'm speechless.

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

In re-reading my original post, I found that I didn't really say what I mean in the third paragraph. What I meant to say is this: juries in criminal cases are almost always concerned with questions of fact. Did Person X do such-and-such? Did Person X do such-and-such in such-and-such way? The judge gives the jury instructions on which facts have to be demonstrated in order to return which verdict. It becomes a set of if-then propositions. If Person X did such-and-such, in such-and-such way, then return a verdict of "guilty."

Why, exactly, the jury asked to see a document-- it's not entirely clear which document-- we may never know. They should not, if they've been adequately instructed, have to refer to the law at all.

That's what I really meant to say. I think you understood what I mean, but I wanted to clarify anyway.

Your point on nullification, though, is well taken. But isn't it safe to say that a trial jury isn't supposed to be concerned with questions of law and procedure, but rather the facts of the case? Questions of law and procedure are usually reserved for the appellate courts, right?

Re:juries don't usually consult the law directly

[dh003i]

Actually, according to the founding fathers, jurrors were supposed to sit not only in judgement of the facts, but also of the law. Ref. to my posts above about jury nullification.

Re:juries don't usually consult the law directly

[dh003i]

As I noted somewhere else, the entire DMCA is only 59 pages long in PDF format. In other words, as is usual, someone was full of shit in claiming it was "over a hundred pages".

Re:juries don't usually consult the law directly

[digitalmuse]

he may be a bit brutish when enlightening us, but it does appear that he is explaining some of the aspects that many of us (myself included) are not presently aware. we're not necessarily here to critique his tone, I for one am more interested in his content.

Re:juries don't usually consult the law directly

[MacAndrew]

Your example is a good one. But a few Q's: Do you have expertise in the field, that you can interpret raw data correctly? Could I do it, too? Could any reasonably intelligent person do it and come to the correct conclusion? (One nice thing about science is that there is absolute truth. Not so law. I have some background in both fields.)

Laws also require expertise to interpret, and law school is tough for a reason. The discussions about statutory interpretation in the courts and in the academy are positively endless, and the correct approach is probably one of the most prominent topics in the law. (Judge Posner of the 7th Circuit has written some of the most accessible articles on this.) Laws often do not speak for themselves, and the result of 12 people on a jury coming each to a different private understanding of the law would be chaotic. I think allowing the jury to second-guess the lawyers and the judge -- who are more likely right -- "simply introduces an extra unnecessary point of error into the process" with no compensatory gain.

Whether the DMCA is valid, incidentally, depends not on whether it is a wise or just or efficient or necessary law. The only question is whether it's valid and constitutional, period. The people who haggle about wisdom and justice and efficiency and necessity are called legislators. As for its interpretation, in the present case it's pretty simple unless I haven't followed the case closely enough.

Regardless of expertise, and perhaps more compelling, there is a basic procedural rationale. Judges have to explain their analysis of the law on the record when denying challenges, and approve jury instructions. These things are on the record and available for review. The private judgments of a juror are not. The record is this huge bound paper thing that anyone can see, and which goes up on appeal.

I've actually been involved (as an advisor, not the decisionmaker!) in this process of judging the validity of a law, and it can be tough. You're welcome to read the decision: United States v. Kenney. It was some of my most challenging work, and the decision was widely followed by courts in other circuits so I guess the logic wasn't too bad. BTW, while Kenney may appear to be a gun control case, it's really not; the topic is the generic power of Congress to enact laws under the Commerce Clause.

If "I" the judge am wrong I will have exposed my reasoning for all to ridicule, and exposed myself to reversal by the Supreme Court (which, believe it or not, happened once -- the judges there ignored my advice, although I concede I was right partly by luck :).

Re:juries don't usually consult the law directly

[quintessent]

If jurors have questions about the law, they're free to ask the judge at any time.

Jurors: Can we see the law?
Judge: No.

Re:juries don't usually consult the law directly

[MacAndrew]

Jury nullification is not part of the law, and it is hotly contested whether it was originally intended or is even a good idea (I doubt both). It is reversible error, for example, for a lawyer to explicitly or implicitly ask a jury to nullify. The power to nullify is more a byproduct of the unreviewability of most acquittals. because the jury is effectively a black box.

Re:juries don't usually consult the law directly

[MacAndrew]

But isn't it safe to say that a trial jury isn't supposed to be concerned with questions of law and procedure, but rather the facts of the case? Questions of law and procedure are usually reserved for the appellate courts, right?

I think I see the gap here -- recall that there's a jury and a judge. Q's of law always go to the judge, always. The judge rulings in turn are reviewed by the appellate court, but that judge always gets first crack at it (saving the appellate court some research labor, BTW :).

The jury's decisions, meanwhile, are not really reviewable except when their conclusions are essentially irrational, or there's some sign of jury tampering, and some other misc. I'd have to look up. This can be kind of ugly, such as when juries acquitted people of murder because they didn't like federal antilynching laws. Unreviewable.

Re:juries don't usually consult the law directly

[dh003i]

Yes, but I'm not proposing we elimiante the lawyers, judges, and prosecutors instructions -- but simply that we also give the jury the primary data, so they can ref. back to that.

And jury nullification is the right of the jury, so they can decide whether the law is right/wrong.

Re:juries don't usually consult the law directly

[dh003i]

Actually, most of the founding father's saw the need for jury nullification as the last measure to force the gov't to obey its own constitution. It is a necessary product of the unreviewability of an acquittal, thus a jury's right.

Jury nullification has been used for many good things throughout history. For example, to void fugitive slave laws, or to avoid convicting people at the end of the unjustified prohibition on alcohol. Its also been used in backwards ways, for example to acquit OJ Simpson. But the point is, it is a necessary check on the gov'ts power. If the gov't can't even convince 12 ppl that something should be illegal, then a person shouldn't go to jail for that.

Re:juries don't usually consult the law directly

[Fat Casper]

juries in criminal cases are almost always concerned with questions of fact. Did Person X do such-and-such? Did Person X do such-and-such in such-and-such way?

Why, exactly, the jury asked to see a document-- it's not entirely clear which document-- we may never know. They should not, if they've been adequately instructed, have to refer to the law at all.

But isn't it safe to say that a trial jury isn't supposed to be concerned with questions of law and procedure, but rather the facts of the case?

Let's start at the end and work our way back. Trial juries tend to focus on facts rather than law, but every law has its first trial. This is the DMCA's first trial in more ways than one. It is perfectly valid to examine a law that has never been examined. There is no precedent to be guided by here, only a corporate lobby. I'd want to examine the law myself.

I'll tell you why the jury asked to read the actual law: they don't understand it. They understand murder, theft, robbery, even tax evasion. It shouldn't take much in the way of instruction to get a jury up to speed on the differences between murder, manslaughter, negligent homicide and the like. None of these folks, however, have given the DMCA any thought at all, even if they have ever heard of it. It would be irresponsible to not do their utmost to understand the law in question, up to and including reading it.

Only when they understand what the law actually prohibits and accept that it is legitimate can they even begin to wonder if person X violated it in such and such a way. The DMCA doesn't have the thousands of years of precedent that murder statutes have, and it certainly has a questionable moral leg to stand on. Its legitimacy needs to exist in the hearts of the jurors before they can consider giving it its first precedent.

All that, mind you, is before the jury asks itself if it wants Russia applying its domestic laws in, say, Michigan.

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

I can't really speak about his content. I didn't read too far past, "Goddamn, but that is just dumb." That's the point where I realized I really wasn't interested in anything he had to say.

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

And jury nullification is the right of the jury, so they can decide whether the law is right/wrong.

Well, not really. As MacAndrew said up-thread, nullification is unofficial at best, and has applied to both good and bad ends. There's really no way we can get rid of it-- the jury does return the verdict, after all-- but it's not really a "right" in any meaningful sense either. It's more like a loophole.

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

All that, mind you, is before the jury asks itself if it wants Russia applying its domestic laws in, say, Michigan.

I was right with you up to this point. This issue is deader than dead. The crime of which these folks are accused was committed on US soil; they were arrested on US soil; they are being tried on US soil. The fact that they're Russian citizens is irrelevant.

If you were to commit a crime in Russia, you would expect to be arrested by Russian police officers, tried in a Russian court, and, if convicted, sentenced to a Russian prison. This situation is no different.

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

Jurors: Can we see the law?
Judge: No.

Jurors: Can we go out for pizza and beers?
Judge: No.

Jurors: Can we play Pictionary?
Judge: No.

Jurors: Can we spend valuable time debating an issue that has no bearing on the verdict?
Judge: No.

See? The system works.

Re:juries don't usually consult the law directly

[pben]

I think that they are also counting the last half of the law that has something to do with protecting naval ship hull design (sic). How that got stuck on to this law beats me. The ways of congress are strange and and often involve small sums of money (funny what a few million will get you in a 1.5 trillion dollar budget).

Re:juries don't usually consult the law directly

[MacAndrew]

Nullficiation is not a right. It is a flagrant violation of the juror's oath. Sometimes violating your oath might be the right thing to do, but that's not a right -- just a power you can get away with.

I don't have time to really run this down, but here (U.S. v. Thomas) is a 1997 Second Circuit case with a good discussion of jury nullification. It has cites to Supreme Court decisions you can run down if you like, including to Sparf which jury nullification proponents often cite as having upheld jury nullification, when it did the exact opposite. I can only wonder how that is. I would be very interested in contrary evidence with appropriate citations.

In Thomas a juror was dismissed by the trial court on various grounds. The 2nd Cir. found this to be error on evidentiary grounds and remanded. The relevant section in full (U.S. v. Thomas):

B. Nullification as "Just Cause" for Dismissal

In the instant case, the judge identified a different form of bias as the primary ground for dismissing Juror No. 5--one arising not from an external event or from a relationship between a juror and a party, but rather, from a more general opposition to the application of the criminal narcotics laws to the defendants' conduct. In the court's view, Juror No. 5 believed that the defendants had "a right to deal drugs." Based on what the court described as the juror's "preconceived, fixed, cultural, economic, [or] social . . . reasons that are totally improper and impermissible," the court concluded that Juror No. 5 was unlikely to convict the defendants "no matter what the evidence was." Essentially, the judge found that Juror No. 5 intended to engage in a form of "nullification," a practice whereby a juror votes in purposeful disregard of the evidence, defying the court's instructions on the law.

We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court--in the words of the standard oath administered to jurors in the federal courts, to "render a true verdict according to the law and the evidence." Federal Judicial Center, Benchbook for U.S. District Court Judges 225 (4th ed. 1996) (emphasis supplied). We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

We are mindful that the term "nullification" can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws. We recognize, too, that nullification may at times manifest itself as a form of civil disobedience that some may regard as tolerable. The case of John Peter Zenger, the publisher of the New York Weekly Journal acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws, are perhaps our country's most renowned examples of "benevolent" nullification. See United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972) (Leventhal, J.); see also David Farnham, Jury Nullification: History Proves It's Not a New Idea, Crim. Just., Winter 1997, at 4, 6-7.

More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, "introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions." U.S. ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds, 317 U.S. 269 (1942). This is so because, as Judge Hand explained, "[t]he individual can forfeit his liberty--to say nothing of his life--only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. . . . [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove . . . ." Id. at775-76.

As courts have long recognized, several features of our jury trial system act to protect the jury's power to acquit, regardless of the evidence, when the prosecution's case meets with the jury's "moral[] disapprov[al]." Since the famous opinion in Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670), freeing a member of the jury arrested for voting to acquit William Penn against the weight of the evidence, nullifying jurors have been protected from being called to account for their verdicts. Moreover, and in addition to the courts' duty to safeguard the secrecy of the jury deliberation room (discussed in greater detail below), the several rules protecting the unassailability of jury verdicts of acquittal--even where these verdicts are inconsistent with other verdicts rendered by the same jury in the same case, United States v. Carbone, 378 F.2d 420, 423 (2d Cir.) (Friendly, J.) (recognizing link between upholding inconsistent verdicts and protecting juries' power of lenity), cert. denied, 389 U.S. 914 (1967)--serve to "permit[] juries to acquit out of compassion or compromise or because of their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Standefer v. United States, 447 U.S. 10, 22 (1980) (internal quotation marks omitted).

But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that--a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. Indeed, although nullification has a long history in the Anglo-American legal system, see Dougherty, 473 F.2d at 1130-33; Farnham, supra, at 4, and the federal courts have long noted the defacto power of a jury to render general verdicts "in the teeth of both law and facts," Horning v. District of Columbia, 254 U.S. 135, 138 (1920); see, e.g., United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir. 1983), courts have consistently recognized that jurors have no right to nullify. See, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988) ("[J]ury nullification is just a power, not also a right . . . ."); see also Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them"). As a panel of the Court of Appeals for the District of Columbia Circuit--composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg--explained:
A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to "apply the law as interpreted by the court." United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969), cert. denied, 397 U.S. 991 (1970).

Moreover, although the early history of our country includes the occasional Zenger trial or acquittals in fugitive slave cases, more recent history presents numerous and notorious examples of jurors nullifying--cases that reveal the destructive potential of a practice Professor Randall Kennedy of the Harvard Law School has rightly termed a "sabotage of justice." Randall Kennedy, The Angry Juror, Wall St. J., Sept. 30, 1994, at A12. Consider, for example, the two hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old Emmett Till, see David Halberstam, The Fifties 431-41 (1993); Juan Williams, Eyes on the Prize: America's Civil Rights Years, 1954-1965, at 38-57, 221-25 (1987)--shameful examples of how "nullification" has been used to sanction murder and lynching.

Inasmuch as no juror has a right to engage in nullification--and, on the contrary, it is a violation of a juror's sworn duty to follow the law as instructed by the court--trial courts have the duty to forestall or prevent such conduct, whether by firm instruction or admonition or, where permitted, by dismissal of an offending juror from the venire or the jury. If it is true that the jury's "prerogative of lenity," Dougherty, 473 F.2d at 1133, introduces "a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions," Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law. Although nullification may sometimes succeed--because, inter alia, it does not come to the attention of a presiding judge before the completion of a jury's work, and jurors are not answerable for nullification after the verdict has been reached--it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath. This is true regardless of the juror's motivation for "nullification," including race, ethnicity or similar considerations. A federal judge, whose own oath of office requires the judge to "faithfully and impartially discharge and perform all the duties incumbent upon [the judge] . . . under the Constitution and laws of the United States," 28 U.S.C. 453 (1994), may not ignore colorable claims that a juror is acting on the basis of such improper considerations.

Accordingly, every day in courtrooms across the length and breadth of this country, jurors are dismissed from the venire "for cause" precisely because they are unwilling or unable to follow the applicable law. Indeed, one of the principal purposes of voir dire is to ensure that the jurors ultimately selected for service are unbiased and willing and able to apply the law as instructed by the court to the evidence presented by the parties.

So also, a presiding judge possesses both the responsibility and the authority to dismiss a juror whose refusal or unwillingness to follow the applicable law becomes known to the judge during the course of trial. Rule 24(c) of the Federal Rules of Criminal Procedure provides for the substitution of alternates for "jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties." Surely a juror is "unable or disqualified," for purposes of this rule, who is intent on nullifying the applicable law and thereby violating his oath to "render a true verdict according to the law and the evidence."

Similarly, we conclude that a juror who is determined to ignore his duty, who refuses to follow the court's instructions on the law and who thus threatens to "undermine[] the impartial determination of justice based on law," Krzyske, 836 F.2d at 1021, is subject to dismissal during the course of deliberations under Rule 23(b). This conclusion reinforces the court's inherent authority to conduct inquiries in response to reports of improper juror conduct and to determine whether a juror is unwilling to carry out his duties faithfully and impartially. The rule we adopt applies with equal force whether the juror's refusal to follow the court's instructions results from a desire to "nullify" the applicable law or, for example, as in the cases described above, see supra p. 17, from a perceived physical threat or from a relationship with one of the parties.

Our position in this respect is in accord with that of the Eleventh Circuit. See United States v. Geffrard, 87 F.3d 448, 450-52 (11th Cir.), cert. denied, 117 S. Ct. 442 (1996). In Geffrard, a juror submitted a letter to the court during the course of deliberations in which she stated that she adhered to the Christian teachings of Emanuel Swedenborg. Under Swedenborg's theology, the juror explained, she could not "`live with a verdict of guilty for any of the accused on any of the charges, as [she] believe[d] deep within [her] heart and soul and mind that [the defendants] were unjustly led into this so called transaction by a more intelligent and powerful figure.'" Id. at 451. The juror was convinced, assertedly as a result of her religious beliefs, that the defendants were the victims of governmental entrapment, notwithstanding the fact that the court had earlier instructed the jury that entrapment was not at issue in the case. Id. The juror in Geffrard thus was prepared purposefully to disregard or ignore--to "nullify"--the law as set forth in the court's instructions to the jury. The district court "saw in the letter an inability of the juror to follow the court's instructions on the law." Id. Accordingly, the court dismissed the juror pursuant to Rule 23(b), and the remaining eleven jurors convicted the defendants. The Court of Appeals upheld the dismissal, reasoning that the juror's letter "[made] it a certainty that this particular juror could not reach a verdict following the judge's instructions as applied to the facts." Id. at 452.

We agree that a juror's purposeful refusal to apply the law as set forth in a jury charge constitutes an appropriate basis for that juror's removal. Nor is this conclusion any less valid, in the instant case, in light of Juror No. 5's race. The rule authorizing dismissal of a juror who disregards the law does not include an exception for jurors who violate their sworn duty on the basis of racial or ethnic interests or affinities. Accordingly, the district court's finding that Juror No. 5 was unlikely to convict the defendants "no matter what the evidence" was a proper basis for the exercise of the court's dismissal authority, provided that the court had a sufficient evidentiary basis for this finding. As we explain below, however, the need to safeguard the secrecy of jury deliberations requires the use of a high evidentiary standard for the dismissal of a deliberating juror for purposeful disobedience of a court's instructions, a standard that the record in the instant case fails to meet.

Re:juries don't usually consult the law directly

[Anonymous Coward]

Sorry, but you should have. Granting your point about the insult, his comments are a (much) more accurate exposition of the facts mentioned in the story (and I have no other facts on the matter as of yet) than are your own.

Re:juries don't usually consult the law directly

[MacAndrew]

A minor dissent, IMHO the O.J. Simpson criminal trial was an example not of jury nullification but juror and judicial fumbling. I saw some of the dissenting jurors interviewed and was convinced the defense snowed them into enough confusion to acquit. All of the jurors were subjected to a grueling trial of ridiculous length -- in the real world it would have taken 2 weeks with no sequestration. That's just an opinion -- it might have been nullificiation or, for all I know, Simpson could not have been shown guilty beyond a reasonable doubt in the most orderly of trials. Hey, maybe he's innocence, though he did lose the civil trial.

I addressed the nullification issue elsewhere here.

Re:juries don't usually consult the law directly

[MacAndrew]

Nicely summed up.

As for this being a "virgin law," I'm not persuaded the jury needs to see it as a matter of course. On the other hand, the court can decide to give it to them if it likes. If the jury instructions are botched, that can be reviewed later, though note that the defense probably signed off on them.

As to why the jury asked to see the statute, that's speculation. Ask them after they're done.

I can't even believe the amount of insane misinformation out there on both jurisdiction and jury nullification. I just wasted a fair amount of time on the latter because I had to page through all these partisan pages all uselessly (mis)quoting each other before I finally switched to real legal sources to find real primary material -- which none of those sites apparently ever read. The rules and their rationales are so simple I have to figure some of these people are lying and others are accepting what they want to hear. I mean, really, this legal stuff is strictly 1L.

Re:juries don't usually consult the law directly

[Fat Casper]

The crime of which these folks are accused was committed on US soil; they were arrested on US soil; they are being tried on US soil.

Two out of three ain't bad. Russian programmers wrote a program in Russia. One of them showed up in the US for a conference and got arrested. He hadn't even had time to jaywalk here. What had Skylarov, himself, done in the US to be arrested? That is not a dead issue by a long shot. ... these folks are accused of a lot of things, but one man was thrown in jail. What had he done in the US? Once the jury decides if the DMCA is legitimate enough to apply, it needs to remember that it doesn't cover actions in Moscow.

Re:juries don't usually consult the law directly

[MacAndrew]

I'm sorry, you are dead wrong. I state it starkly because so many have this wrong.

Part of the evidence in the case was that Elcomsoft sold the product to several Americans, apparently with no precautions to respect American law even after being warned, effectively breaking our law on our soil. Was the U.S. wise to bring this case? Perhaps not. Is Elcomsoft guilty? I don't know. Did the U.S. have the authority? Probably.

Critically, ElcomSoft did challenge jurisdiction (esp. read the briefs and judge's decision). Elcomsoft raised unconvincing grounds (IMHO, and the judge's) and lost. Any challenge to jurisdiction here should focus on the questions raised in the briefs and the court's answers. For the purposes of this case, any other challenges Elcomsoft could have raised might have been great but have been waived. The judge may have been wrong, but that doesn't mean that jurisidiction is this sort of case is at all difficult to conceive.

I'm not defending here the substance of the DMCA or the law on jurisdiction, just describing.

Don't forget Skylarov is not on trial; his charges are apparently dismissed. His arrest was probably valid, but I'm not happy at all about the detention, as a matter of policy and civil liberties. If his arrest was illegal he could sue for damages, though I suspect he may not want to hang around in the U.S. after what happened. I wouldn't.

Re:juries don't usually consult the law directly

[dh003i]

Actually, according to our founding fathers, Jury Nullificaiton was and is a right. This can easily be seen by looking at statements by Alexander Hamilton, John Adams, Thomas Jefferson, and James Madison.

It is true that the most recent applications of jury nullification -- the acquittal of white's for crimes against blacks -- have been regrettable. But that is not a problem with jury nullification, but rather with jury selection. Besides, the benefits jury nullification can provide far outweigh its drawbacks, in that it allows ordinary people to prevent the government from forcing draconian laws on any individual citizen. Fugutive slave laws were wrong, and were rightfully disregarded by juries. Likewise with laws during prohibition. And defamation laws to which the "truth was no defense".

Even if it is, as you say, a violation of a jurror's "oath", that oath is irrelevant. Just as contracts which call for violations of the law (i.e., a contract for murder) are illegal, so are any oaths which call for poeple to ignore what is right/wrong (in their best estimation) void.

Re:juries don't usually consult the law directly

[MacAndrew]

You're mistaken on history, philosophy, law, and spelling.

Recheck those sources.

Re:juries don't usually consult the law directly

[Anonymous Coward]

Oh yes, he is. Very much so.

However, he's correct and he's not spreading misinformation. That's far more than I can say about the ignoramus he replied to.

Re:juries don't usually consult the law directly

[Anonymous Coward]

He certainly comes off as an ass, but what you did was incalculably worse. You spread falsehoods.

Re:juries don't usually consult the law directly

[John Hasler]

> The judge gives the jury instructions on which
> facts have to be demonstrated in order to return
> which verdict. It becomes a set of if-then
> propositions. If Person X did such-and-such, in
> such-and-such way, then return a verdict of
> "guilty."

If that is true there is no point in having a jury at all.

Re:juries don't usually consult the law directly

[Thu Anon Coward]

MacAndrew,

Get off your high-horse. It's lawyers like you that piss the rest of the general population off, or haven't you noticed. Yes, you may be knowledgeable in the law, but that doesn't mean you have a lick of common sense. If the law is wrong then the law is wrong and the jury has the right, NAY, THE DUTY, to correct where the law went wrong.

If a jury of my peers, SELECTED AND APPROVED by the judge, defense, and prosecutor, all say that I am innocent, then that means exactly what it says. Just because the prosecutor and judge didn't get the conviction they were looking for doesn't mean it was a mis-carriage of justice. The defense was looking for people who believed I was innocent while the prosecutor was screening for people who would convict me. It seems to me that it wasn't the case that the prosecutor picked the wrong people for the jury, the prosecutor had his face shoved in the law showing how stupid it is but doesn't recognize it. Reminds me of the old saying, "You can lead a horse to water but you can't make him drink". In this case, "You can shove the lawyers nose into the law by declaring innocence, but he'll refuse to recognize the stupidity of the law".

I'll be laughing my ass off the day you get taken to court and convicted because the law said that you HAVE to be convicted because you did the crime, regardless of whether the law is good or bad.

The really sad part is, you'll still say I'm wrong because "I'm a lawyer and you're not" and still refuse to recognize your buttheadedness because you are too deeply immersed into the law, unable to stand outside of it, like the rest of us non-lawyers, who can see the stupidity in the law.

Re:juries don't usually consult the law directly

[Thu Anon Coward]

MacAndrew,

Get off your damned high-horse. It's lawyers like you that piss the rest of the general population off, or haven't you noticed. Yes, you may be knowledgeable in the law, but that doesn't mean you have any common sense. If the law is wrong then the law is wrong and the jury has the right, NAY, THE GOD-GIVEN DUTY, to correct where the law went wrong.

If a jury of my peers, SELECTED AND APPROVED by the judge, defense, and prosecutor, all say that I am innocent, then that means exactly what it states. Just because the prosecutor and judge didn't get the conviction they were looking for doesn't mean it was a mis-carriage of justice. The defense was looking for people who believed I was innocent while the prosecutor was screening for people who would convict me. If they were otherwise, they would pull in the first 12 people off the street. It seems to me that it wasn't the case that the prosecutor picked the wrong people for the jury, the prosecutor had his face shoved in the law showing how stupid it is but doesn't recognize it. Reminds me of the old saying, "You can lead a horse to water but you can't make him drink". In this case, "You can shove the lawyers nose into the law by declaring innocence, but he'll refuse to recognize the stupidity of the law".

I'll be laughing my ass off the day you get taken to court and convicted because the law said that you HAVE to be convicted because you did the crime, regardless of whether the law is good or bad.

The really sad part is, you'll still say I'm wrong because "I'm a lawyer and you're not" and still refuse to recognize your buttheadedness because you are too deeply immersed into the law, unable to stand outside of it, like the rest of us non-lawyers, who can see the stupidity in the law.

Re:juries don't usually consult the law directly

[MacAndrew]

Is that seriously the best response you can manage?

I've been clear that I don't necessarily know what the rules should be, but I do know what they are right now. I actually went to a lot of trouble to try to explain it, instead of just calling someone a butthead and leaving it at that. "The jury has the right, NAY, THE DUTY" to do its job properly, not to go off on its "high horse" to undermine democratically enacted laws. That's the real insult to democracy, and you are the one with pretensions ("nay"?). If you are called to serve, remember to refuse to take any oath to uphold the law.

Re:juries don't usually consult the law directly

[MacAndrew]

Well, I see you've fallen to copying-and-pasting your private Federalist Papers. Save bytes if not breath; here's a cross-reference.

Re:juries don't usually consult the law directly

[Thu Anon Coward]

If you are called to serve, remember to refuse to take any oath to uphold the law.

I will take that oath to administer justice as appropriate.

Democratically enacted laws? What a load of horse shit! You mean laws passed by senators and congressman only looking out for the welfare of their donors/constituents (Eli Lilly and oil companies come to mind). And what about all the extraneous crap thrown into the latest piece of law coming out of D.C.? Do we really need a federally funded 'Hacker Research Center' at Texas A&M?

Why is it that duly elected officials that goto to D.C. always feel that they are above the law and have to play favorites? Why is it that a majority of them seem to have law degrees or political science majors? I very seriously doubt that our Founding Fathers envisioned having congressmen serve year after self-serving year. They meant it to be more like giving a few years of service to your neighbors and then returning to your regular day job.

When was the last time that Congress gave themselves a raise? Oh, that's right, they really don't have to because they voted themselves a law to give themselves annual payraises! When was the last time that a high-priced lawyer said "You know, I really don't need a salary of $150,000, I can get by on $50,000"? And don't even try to feed me a line of "I have to charge high rates to pay my employees." We're not talking about rates, we're talking about salary. But don't feel that because I'm picking on lawyers that I'm ragging on you personally. I'm ragging on the whole corrupt system.

You're probably one of those prosecuting lawyers in court who say "Ignorance is no excuse for breaking the law". Well, guess what? These people said exactly the opposite, and you probably support them in their position. Or do you? You for or against the DMCA? I bet you'd like to convict Jon Johansen, wouldn't you? After all, he broke the DMCA law, NO MATTER HOW FLAWED.

You're supposed to be an educated lawyer, capable of seeng and debating all sides of the issue and you still don't get it. When democratically elected congresspeople screw with their constituents by passing bad laws, and it is impossible to get that law repealed because of backroom deals, jury nullification is the only way to make other people take notice. If jury nullification is performed and the prosecutor and judge were looking for a conviction, this negates their bias by letting your peers judge you, not the prosecutor or judge. Jury nullification allows for changing the rules as society sees fit, not as the prosecutor or judge or the backroom deals dictate!

And where did I call you a butthead? gee, sounds like you really aren't a lawyer to me (or maybe just a very poor one) if you made that simple mistake of mis-quoting me.

Remember that when you are called for jury duty to tell them that you will apply the evidence and the law strictly as it is laid out because you "cannot think for yourself and the people who passed the [stupid] law must be right 'cause that's why they done been 'lected, so they must be smarter than me."

Re:juries don't usually consult the law directly

[Twirlip of the Mists]

If that is true there is no point in having a jury at all.

The point of a jury is to decide the facts. In any criminal case, one party is going to say X happened, while the other will say that Y happened. It is the jury's job to decide which of these things is true.

Well in advance of the jury's deliberations, the judge-- with input from both parties-- has decided the legal issues of the case. If X happened, then the defendant is guilty of the crime of A. If Y happened, then the defendant isn't. The judge delivers these instructions to the jury so they will know how to translate their finding of fact into a verdict.

In a jury trial, the jury decides the facts, and the judge decides the law. (Usually. Almost always.)

Re:juries don't usually consult the law directly

[MacAndrew]

Yes, I figured these would be your true colors. I think you'll find the system less corrupt if you engage it more, it's not so simple as some vast conspiracy to co-opt the government.

Jury foreman Dennis Strader said the jurors agreed ElcomSoft's product was illegal but acquitted the company because they believed the company didn't mean to violate the law.

Ignorance is not an excuse is the old expression, true, but it's not complete -- you still have to break the law. Here, willfulness was required, a conscious violation of the law. The jury appears to have decided the prosecution failed to prove this element, esp. where the law was confusing. A normal case, no nullification.

Re:juries don't usually consult the law directly

[Dyolf Knip]

Jurors: Can we read the law that the defendant is accused of breaking?
Judge: No.

Jurors: Can we read the transcript of the trial?
Judge: No.

Jurors: Can we read about some relevant piece of evidence?
Judge: No.

Jurors: Can we deliver a non-guilty verdict?
Judge: No.

Yeah, works real well. So long as one is never on trial under the DMCA with this judge, that is. I see no reason why a judge saying no to the first would not also say no to the others as well.

Re:juries don't usually consult the law directly

[dbrutus]

"In the instant case, the defendants do not directly challenge the proposition that a juror's refusal to follow the court's instructions on the law may be a proper basis for removal under Rule 23(b)"

That's from your link. In other words, the defense didn't even bring up the point that jury nullification is a right, rather that the dismissal of the juror was unjustified on other grounds. It's quite easy to bash a position that wasn't even given a fair representation by any of the parties. As the defendents were given what they wanted (new trials) no further challenges would arise from this anyway so it was a neat opportunity to say whatever the judges wanted safe from review. The correctness of it is almost beyond the point. They were safe in shooting their mouth off against one of the most profound inconveniences for a judge, the ability, the right, of a jury to ignore the high and mighty and not just decide the facts but the justice of the law as well.

Whether this awesome power of the jury has been misused at time to provide injustice is absolutely irrelevant to the existence or inexistance of the right. If the bill of rights were held under the same standard, what would happen to free speech after the klan marched in Skokie, Penthouse put an illustration of a girl in a meatgrinder in its pages and other insults to good taste and good sense.

Is there any of the rights enumerated in the Bill of Rights that has not created a bad result some time during our history (OK, amendment 3 but that's never come under test in any circumstance). In reality, the idea of malignant nullification nullifying jury nullification is profoundly unamerican and the decision you cite while giving the correct result (new trials) uses aberrational logic and would not stand review.

Now I'm not a judge, but it's just unamerican to nullify a right of the people by the bad exercise of that right by some people. If that logic holds, you might as well use the Constitution as toilet paper because it wouldn't be worth a damn.

Re:juries don't usually consult the law directly

[dbrutus]

Mistaken on history? Did the jury nullifications of Peter Zenger and William Penn just not happen?

Mistaken on philosophy? How can you be mistaken on philosophy? That's just stupid. You might have a different philosophy, you might wrongly describe a particular philosophy but to be mistaken on philosophy just isn't in the nature of the beast.

Mistaken on the law? Well, that may or may not be. A lot of people fall on either side of the question and case law has been cited on both sides.

Mistaken on spelling? Well yes, and what does that make you? A spelling nazi, a specific kind of slashdot low life.

Re:juries don't usually consult the law directly

[MacAndrew]

Don't read too much into the one case I cited -- it just had the sort of discussion I needed. The thing to look for is whether this case is representative of the others, and most importantly what the Supreme Court had to say in the cases cited (all Supreme Ct decsions are available at Cornell LIIR and elsewhere). So the only thing I wanted to get right was the law as it now stands.

The Thomas case the defense attorney did not defend nullification because it would have been borderline malpractice to do so. Instead the defense focused on whether the juror had been caught legitimately. If jury nullification were acceptable, there would be no need to address how the juror was caught. The court decided to restate (not change) the law concerning nullification all the same, with the intent of making clear that dismissing jurors for threatening nullifciation is valid, even compelled; just not this juror. This statement is not dicta, it is binding law for the courts of the Second Circuit (I worked for the Seventh Circuit). This juror did not get off on "other grounds," rather he was likely guilty but there was a flaw in the proof that endangered jury privacy. This is like a drug dealer getting off because he was caught in an illegal search. He's still a criminal, but other principles of justice have to be honored as well. Drug dealing is still just as illegal as before.

Their denunciation could not have been clearer (this is hot language for a court, you see):

We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court--in the words of the standard oath administered to jurors in the federal courts, to "render a true verdict according to the law and the evidence." Federal Judicial Center, Benchbook for U.S. District Court Judges 225 (4th ed. 1996) (emphasis supplied). We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

And for other questions of con law, there is plenty written on them. And that's just it -- nothing in favor of jury nullification is anywhere in the case law, except to recognize that it happens sometimes and should be prevented whenever possible.

I state all this because I do want to see that this is correct state of the law, stated many times and many places. If you can show me a holding that goes the other way, please do. I glanced at the handful of cases cited by the FIJA and the like, and they were not at all supportive.

Re:juries don't usually consult the law directly

[MacAndrew]

Actually, according to our founding fathers, Jury Nullificaiton was and is a right. This can easily be seen by looking at statements by Alexander Hamilton, John Adams, Thomas Jefferson, and James Madison.

Nonsense on the law and the history. Cites? And even if you could find a "statement" remember it is an opinion, not the law. If you want to know what the law says, read the law. Jury nullification is on page ??.

Did the jury nullifications of Peter Zenger and William Penn just not happen?

They happened, and that does not mean nullification is not a right. The other day someone was shot in court; this did not mean shooting in court is a right.

History: Note that the Zenger trial was in 1735. The Penn trial in 1670. The American Revolution began in 1776. This is 2002. Aren't your examples a little dusty, as they considerably predate both the Constitution and the United States?

It is true that the most recent applications of jury nullification -- the acquittal of white's for crimes against blacks -- have been regrettable. But that is not a problem with jury nullification, but rather with jury selection.

Nullification was regrettable. Jurors who followed the law would have gotten these cases right.

Besides, the benefits jury nullification can provide far outweigh its drawbacks, in that it allows ordinary people to prevent the government from forcing draconian laws on any individual citizen. Fugutive slave laws were wrong, and were rightfully disregarded by juries. Likewise with laws during prohibition. And defamation laws to which the "truth was no defense".

These supposed benefits are all well and good. NONE of it shows that nullification is a right, just that "it happens."

Mistaken on spelling? Well yes, and what does that make you? A spelling nazi, a specific kind of slashdot low life.

Well, you did do better on it this time.

There is one point here: Nullification is not a right. If you think it is, show me WHERE it says so. You can't, because ... it is not a right.

Re:juries don't usually consult the law directly

[Anonymous Coward]

Luckily we have juries to be a check and balance to our system of laws.

Given a bad law or a law mis-applied such as the claim from Walmart and others that releasing Sale information ahead of the companies planned information release date was a violation of Copyright provisions under DCMA.

As I understand it the lower court judges do not have the ability to not hear a case presented before them by prosecuters. If a defendant requests a jury trail, then a jury is chosen. The defendants lawyers and the prosecuter can challenge juror's selection with the end result a complement of jurors to hear and decide the case.

There are these checks and balances built in at each stage of the process to protect us, the citizens from a system that can be oppressive if those checks and balances are not in place.

The jurors have the ultimate say in whether someone is guilty or not as they match the facts to the law and in the case of nullification of having the law on trial as well.

It if very hard to get a bad law off the books. Look at the various blue laws still on but not enforced. Here you might say the the prosecuters are not fulfilling their oath of office by not vigorously procecuting jay walkers or people who yell at their dogs.

Condemning jurors for exercising their consciences in administering justice just seems odd to me. That should be the primary function of the jury. It is true that lawyers are not required to use their consciences in being advocates. Thats not their job. Their job is to be and advocate just like a marketing person's job is to sell sell sell the product, not to present a balanced view to the jury. It is the judge and the jury that are there in the process to weigh and balance the two sides.
Lawyers I feel see it more as a game played with strict rules like chess and want jurors to play by the same rules. But the juries are there to bring that human thinking feeling, balancing, life experience component into the system so they can determain if the person warrants some punishment, rules and technicalities and legal nuances aside. I know this is a most frightening thing to lawyers and it should be.

The wisdom of Solomon is a frightening and surprising thing, not always orderly but can cut through the confusion.

Re:juries don't usually consult the law directly

[zcollier]

This is double-speak, plain and simple. The reality of the matter is that Lawyers and Judges have usurped the rights of common citizens and juries. Now that people are becoming informed on the issue, we see responses like this.

Jury Nullification is the RIGHT of the Jury and the common citizen - to prevent the very thing that has happened: From Lawyers and Judges to be able to take the law and use it for its own ends, instead of the true purpose of the Law: To serve the common citizen.

Re:juries don't usually consult the law directly

[dbrutus]

Dougherty was cited at you elsewhere, you didn't bother to address it yet. Until you do, why waste time looking for more cites?

Re:juries don't usually consult the law directly

[dbrutus]

You ask where it says that nullification is a right.

here is a court filing which includes the following informative paragraphs.

[CURRENT CONSTITUTIONAL AUTHORITY FOR JURY NULLIFICATION:

The Constitutions of Maryland (Art. XXIII, entire), Indiana (Art. I, sec. 19), Oregon (Art. I, sec. 16), and Georgia (Art. I sec. 1, para. 11, subsec. A), currently have provisions guaranteeing the right of jurors to "judge the law"; that is, to nullify the law. For example, the Georgia Constitution says: "In criminal cases, the defendant shall have a public and speedy trial...and the jury shall be the judges of the law and the facts." Attorneys in Georgia and Indiana are able to request nullification instructions from the judge to the jury and generally receive them, and are sometimes able to argue the law. Twenty states currently include jury nullification provisions in their Constitutions under their sections on freedom of speech, specifically with respect to libel and sedition cases: Alabama (Art. I, Sec. 12); Colorado (Art. II, sec. 10); Connecticut (Art. I, sec. 6); Delaware (Art. I, sec. 5); Kentucky (Bill of Rights, sec. 9); Maine (Art. I, sec. 4); Mississippi (Art. 3, sec. 13); Missouri (Art. 1, sec. 8); Montana (Art. II, sec. 7); New Jersey (Art. I, sec. 6); New York (Art. I, sec. 8); North Dakota (Art. I, sec. 4); Pennsylvania (Art. I, sec. 7); South Carolina (Art. I, sec. 16); South Dakota (Art. VI, sec. 5); Tennessee (Art. I, sec. 19); Texas (Art. I, sec. 8); Utah (Art. I, sec. 15); Wisconsin (Art. I, sec. 3); Wyoming (Art. I, sec. 20). Of these, Texas, Delaware, Kentucky, North Dakota and Tennessee say that the jury is the judge of the law in libel and sedition cases, "as in all other cases." [Source: Alan W. Scheflin, "Jury Nullification: the Right to Say No", Southern California Law Review, 45, p. 204 (1972). This list has been updated to 1996.]

When there is division amongst the states on an important issue, trial judges often look to federal authorities for guidance, and such is instructive in this case. Modern Federal Jury Instructions (Sands, Siffert, Loughlin & Reis, Instruction 4-2) suggests that juries should be told that it is their "duty to acquit the defendant" if they harbor a reasonable doubt, however, rather than instruct juries that they have a corresponding "duty to convict," i.e., "must" convict if they are satisfied of the defendant's guilt beyond a reasonable doubt, the treatise recommends that juries be advised that they "should vote to convict: if the government has carried its burden (leaving a jury to conclude that it has the authority to nullify even in the absence of a reasonable doubt) [and our own federal district courts agree on this prerogative of the jury, see also, e.g., United States v. Will L. Dawson, and Derrick Termail Willis, Criminal Cause Numbers: IP 95-0064M-01-02, citing approvingly Beaver v. State, 236 Ind. 549, 141 N.E.2d 118 (1957) to the effect that "Article I, Section 19 of the Indiana Constitution provides that 'in all criminal cases whatever, the jury shall have the right to determine the law and the facts.' However, jurors should be bound by their conscience and their oaths, and not act arbitrarily, capriciously, upon a whim or prejudice.] While logic would seem to dictate that a corollary obligation be imposed on jurors, it is reversible error to charge that the jury must explain their doubts ever since the ordeal of Edward Bushell and the Penn jury hereinabove.

The argument may or may not be persuasive to you that it is right, the listing of state constitutional clauses explicitly answers your question. Yes, jury nullification is recognized in law as a right of the people.

Now the question remains on the federal level whether it is a right. But rights are not granted by the Constitution, they are recognized. Limitations on rights and governing powers are granted by the US Constitution. So now that we've established that nullification *does* exist as law and is a right of the people, does the US Constitution eliminate that right?

Now I ask you, where is it written?

Re:juries don't usually consult the law directly

[MacAndrew]

Actually I looked at it. You've wrong about its holding, as are the rest of the nullification nuts. Also, it's just a circuit court opinion. Feel frre to prove otherwise; you can't.

Why waste time looking for more cites? Because you might learn somthing valuable.

Re:juries don't usually consult the law directly

[MacAndrew]

You're grasping at straws. The states can fiddle with the law in their courts and allow jurors to judge state laws, true, but the federal rule has been stated with perfect clarity.

Re:juries don't usually consult the law directly

[dbrutus]

The question is whether those judges who have stated their opinions are stating constitutional ones.

You've retreated (silently, true) from the proposition that jury nullification is not supported in law to the idea that it is not supported in federal law.

If you would either assert that the Constitution (federal or state) grants rights (thus exposing you for a fool who doesn't understand our legal tradition at all) or demonstrate where these Constitutions which recognize jury nullification are overridden by superior Constitutional authority (not mere judicial assertion).

The judge doesn't have the right to just make stuff up. He has to base his decisions on some Constitutional text even if it's merely to override some 9th or 10th amendment unenumerated right. So far we've got nothing in the Constitutional text, merely judicial opinions that rest on air, and thus are illegitimate constitutional interpretation.

All you've described so far is legislating from the bench. A Constitutional support for the opinion you've cited wouldn't hurt what's left of your case.

Re:juries don't usually consult the law directly

[MacAndrew]

You've retreated (silently, true) from the proposition that jury nullification is not supported in law to the idea that it is not supported in federal law.

Retreat nothing. This started out long long ago as a discussion of the DMCA! Of course I'm talking federal law -- what did you expect, Barbados? Above all, if jury nullification were a constitutional right, and of course it is not, it would be binding on the federal courts and every single state court, as it is not. Your ditsy FIJA friends don't say it is, either.

Here is a more thoughtful discussion, and clarification of Indiana practice.

The judge doesn't have the right to just make stuff up.

Nor do the nullification boosters, not that it stops them. I'm impressed you're gullible enough to cite one of their briefs as "proof" of anything. You should have seen the briefs I read where tax protesters "proved" the tax law was unconstitutional. And this is just a lousy amicus brief, of as much legal significance as a letter to the editor.

I've demonstrated the law -- read the cases then disprove them -- law class is over.

BTW -- couldn't help my curiosity -- is this the heroic patriot defendant in the Thompson case? Sounds like a great candidate for nullification.

# May 1995. Indiana militia leader Linda Thompson is arrested on disorderly conduct and resisting arrest charges. She had gone to the Indianapolis city-county building to file battery and stalking charges against a freelance writer. Marion County Reserve Deputy Jeff Dunn reported that Thompson became irate when he sought details of her accusations and that she told him that people were "shooting her in the head with radio frequency weapons." She also complained that various people, including the CIA, were trying to kill her (Thompson later denied making these statements). According to Dunn, when he asked her to show him her permit, she put her hand inside her jacket and he grabbed her arm to prevent her from drawing her weapon. She resisted and he ordered her to stop resisting. He led her down the hall, but she again tried to pull herself free and jump through a window. He grabbed her and pulled her down, when she kicked him in the leg and shoved him. He grabbed her and held her against the wall, where she scraped herself on a sign. As a result of this incident, Linda Thompson files a $500 million dollar suit against practically everybody in Indianapolis.

Re:juries don't usually consult the law directly

[dbrutus]

Re the defendent in the case, if you needed attractive defendents to properly establish constitutionality than Roe v. Wade would be illegitimate as would the Miranda decision. Throwing mud at a particular defendent in order to cast doubt as to constitutionality again makes me wonder as to your actual bar status.

Beyond that, the cite that I gave wasn't anything more than a listing of relevant State Constitutions. Are you claiming the cites are erroneous? No? Then you're an ass who is fast losing credibility.

Yes, the federal record is a bit weaker for the nullification case than the state record in the cited constitutions but you went out of your way to make broad claims that nullification simply didn't exist in current law (not federal law, current law period).

The thing that convinces me that nullification does exist on the federal level is that jurors are instructed that they must find defendants not guilty based on doubt but if there is no doubt they are not similarly instructed that they must convict if the evidence leaves no doubt in their mind. They are only instructed that they "should" convict. That, and the fact that nobody seems to have been accused of a violation of their juror's oath and prosecuted for such violation leads me to believe that the anti-nullification case is all bluster and noise, signifying nothing.

Mirror

[Anonymous Coward]

Here is a mirror.

US vs. RU law?

[zoloto]

It's sort of an outrage denying the full article text to the jurors to determine for themselves what is and isn't important (as what a jury is for) but at the same time since when does US Law stretch beyond the borders of this country? Ok, the internet is not much of a grey area here, but it was a Russian company doing things that were not illegal in Russia. If I or my company did something that was against Russian law, would I be arrested and put on trial or would the USA laugh at them (much like the Russians should have done!) ?

This doesn't make sence to me at all.

Re:US vs. RU law?

[m0rph3us0]

Notice he was arrested on US soil? And didn't you watch the troops march on Noriega? US law extends as far as US bombers will fly.

IN SOVIET RUSSIA

[Anonymous Coward]

The jury requests copies of YOU!!!

In Soviet Russia....

[Anonymous Coward]

the eBooks onto which the law is written read you.

that is unconstitutional (see FIJA.org)

[TheGratefulNet]

fija (fully informed juray assoc) says that its NOT the judge's job to interpret the law. even though most judges THINK that's the case.

in fact, its the SOLE job of the jury to do that. the judge has NO RIGHT to judge the law. that's what the jury is for! in cases where the law is too harsh or should not be applied, the jury has the constitutional right to OVERRIDE ANY LAW IT WISHES on a case by case basis.

of course any juror who lets on that he KNOWS this will not pass voire dire. catch 22. sigh ;-(

fija.org is well worth the read. its scary to see which states are fija-friendly and which are not (most are not).

Re:that is unconstitutional (see FIJA.org)

[TheGratefulNet]

ob: disc: IANAL

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

Facts are for the jury and law is for the judge; the judges are right about the rule (one would hope!); a constitutional right to invalidate laws does not exist for the jury. FIJA or whoever may disagree and may want to change and perhaps can, but it's not the law. What they propose is a reform, or that current law is wrong, which is their right but a fringe view. (I'm citing federal practice; individual states do have varying practice, as is their right according to their constitutions to evaluate state laws.)

IAAL FWIW. :)

Re:that is unconstitutional (see FIJA.org)

[TheGratefulNet]

so tell me, then - how is FIJA wrong? I assume you've seen their website?

according to fija, US juries have the right to judge unjust laws. not just FOLLOW the law blindly but actually OVERRIDE laws.

IANAL but it seems clear what fija is saying. are you of the view that fija is all wrong? or my understanding of fija is wrong? (fija is not a 'law' but a website that comments on some aspects of the law, from a jury-rights perspective).

what they say on their website sure sounds right to me (not that that means anything, legally). the checks and balances were put in to protect against unjust laws or cases where a specific instance of a 'crime' is deemed ok, given the circumstances. or, simply just to keep the government in check. the jury is the last stop for The People to have their say. it just makes sense that they'd have the ability to judge laws and not just blindly apply them.

Re:that is unconstitutional (see FIJA.org)

[TheGratefulNet]

Facts are for the jury and law is for the judge

I just re-read your statement and I'm sorry, but I find that totally unacceptable and others should too.

I know you are the lawyer and I'm not, but can you back up your statement? I'd find it very interesting if you could. where in the body of US laws does it specifically state that the jury CANNOT interpret and judge the laws if they so choose to?

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

I don't have time to review their entire website, but they're clearly stating an aspiration, not the current law. So when they talk of the jury having a right, they're not referring to anything in existing law. From their "about" page: "In particular, FIJA seeks to restore the traditional trial by jury, and protect it from further incursions."

So they want to "restore the traditional trial by jury" and to prevent "further incursions." In other words, they're activists and would like to promote legislation -- they even have a guide on how to organize your own local reform effort.

As for whether they're right on the substance, I'll keep my mouth shut. I am after all a member of the conspiracy to deprive juries of their powers. ;-) FIJA is basically right about the checks and balances thing, juries do account for some of the Framers' concerns about the state abusing its powers; however, checks and balances have their limits. Too much power in anyone's hands is bad thing, and a jury is merely a small unaccountable sample of the citiczenry, not their representative. We elect our representatives, but not our juries.

Also, we already grant juries much more power than many countries, including the British from whom we adopted the system; the jury is a very significant element in the judicial system. I should be careful to point out that the jury right belongs to the defendant, not the jury per se. So more jury power against the state really means more protection to the defendant. A defendant can also choose to waive trial by jury.

Last, believe me that the constitutionality of laws in taken very seriously by the judiciary. Although the courts are or course not perfect, they are independent and do not act as rubber stamps for the legislature. Again in the UK, courts generally can't question the propriety of a law at all -- there is no so-called judicial review IIRC.

Re:that is unconstitutional (see FIJA.org)

[Planesdragon]

IAANAL...

I know you are the lawyer and I'm not, but can you back up your statement? I'd find it very interesting if you could. where in the body of US laws does it specifically state that the jury CANNOT interpret and judge the laws if they so choose to?

The jury can go right ahead and do just about whatever they want to. But it's the judge who issues court orders, including the ones that let the sitting jury leave... and AFAIK, judges can and do declare mistrials when juries decide that they're suddenly a direct democracy with the full rule of law in front of them.

The purpose of the jury is to have common citizens, who have no stake in the outcome of a case in any manner whatsoever, be the ones deciding facts. Once those facts are done, it's the judiciary's job to interpret how the law applies to the facts.

Sure, there's a whole bunch of overlap, but this is the basic distinction.

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

I'm not finding fault with your gut reaction, but the rule stated is so basic I don't even know where to look it up! There is a third flavor, incidentally, called "mixed questions of law and fact."

I think you can find what you need in the rules of criminal procedure. The Cornell (where I went to school) site has ample links to the landmark cases and other materials.

Re:that is unconstitutional (see FIJA.org)

[dbrutus]

Here is an account of the Zenger trial. I highly recommend it and if you read the account carefully, you will find that no matter how 'fringe' a view jury nullification is without a doubt deeply embedded in the idea of the american jury trial.

Re:that is unconstitutional (see FIJA.org)

[dbrutus]

As was previously noted (thanks zeugma-amp), US vs Dougherty, 473 F 2d 1113, 1139 (1972) and US vs Moylan, 417 F 2d 1002, 1006 (1969) both establish that juries have a right to nullify. Are you aware of any superior court which overturned these opinions or any actual case law subsequent to these decisions that overturned them?

If not, then jury nullification is as much the law of the land as any other judicial decision.

FIJA is something like the defense of marriage act. Nobody is claiming that marriage is anything other than between a man and a woman under current law yet the Congress passed such a law.

Re:that is unconstitutional (see FIJA.org)

[dbrutus]

There has been actual US case law cited in this thread stating that juries have the right to nullify and none cited that they do not. Doesn't that put the burden of proof on those who deny jury nullification to come up with some real documentation supporting their position?

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

An anecdotal account is interesting, but case law controls. Nullification may be "deeply embedded" in the American concept of jury but it is emphatically not a right of the juror. I posted a discussion and lengthy quote illustrating the state of the law.

I do know what the law is here, but not whether it should be something different, and I don't advocate the ideal system. Jury nullification is a clear example of a double-edged sword that works both for good and bad. There is no way to extinguish it fully, and it must be treated with the utmost suspicion.

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

Wrong.

I don't know the holdings in Dougherty and Moylan -- but note that neither is a Supreme Court decision (F.2d is wrong reporter). I need access to the full original text to give an opinion. Moylan is 4th Cir. and apparently held that juries do have the power to nullify but because it is unlawful the defense attorney is prohibited from the jury to nullify. Logical.

Before you cite Sparf, 156 U.S. 51, 101-02 (1895), which the numerous pro-nullification sites bizarrely rely upon:

Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. . . . We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.

Re:that is unconstitutional (see FIJA.org)

[unitron]

"I need access to the full original text to give an opinion."

I just checked with the judge. He said you can't have access to the full text :-)

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

Good one! :)

But I'm a lawyer not a juror, damn it! If I were a juror I would meeky eat my jury instructions kibble. Although I could "cheat" unless sequestered, I wouldn't.

I've never served on a jury, and now anticipate it with a sort of mute horror. With luck, it will be a nice boring case with nice boring jurors. Without luck...

Stay tuned, literally, PBS's Frontline may tape jury deliberations in a TX capital case, if it is approved. I don't think it will be approved, but it would be interesting.

Re:that is unconstitutional (see FIJA.org)

[Planesdragon]

I didn't deny it. But it's an exception to the design of the jury system, not a redefinition of it. A judge can take certain things (undisputed allegations) as fact, and the jury has to agree to that as much as the judge has to agree to the jury's decision.

One of the links on FIJA.org puts it very succinctly with a story about a man who stole a pig. The Jury didn't _change the law_, they simply decided not to enforce it, and there's no law saying that they have to.

Re:that is unconstitutional (see FIJA.org)

[TheGratefulNet]

rigth - that's what I'm saying. they don't REWRITE the law, but on a case-by-case basis, they can choose to selectively ignore the law.

this is a Good Thing(tm). we all knows that there are many laws that don't make sense in the modern world. its illegal to have oral sex in many states of the US (yes, that's still on the books AFAIK). but you want our legal system to uphold each and every law, even the stooopid ones?

we are not robots. we are humans. well, most of us are. using intelligence to pick and choose which pork to follow and which to ignore is what makes humans better than mere pigs.

Re:that is unconstitutional (see FIJA.org)

[Alsee]

a constitutional right to invalidate laws does not exist for the jury.

And as far as I can tell FIJA never makes that claim.

They say that the jury has absolute and final authority to deny conviction in a single case against a single defendant. That is not invalidating the law, that is declining to punish an individual.

Nullifacation can only "invalidate" a law if EVERY jury unanimously refuses to convict. And if that happens there's either a major problem with the law or a major problem with the judicial process.

I think it is one of the best examples of checks and balances you'll find. Their power is INSANELY narrow, but what power they do have is total and final (if all 12 jurors agree). If the rest of the judicial system works properly then juror power is exceedingly unlikely to cause any harm, and the possible harm is very limited.

As for weather the jury has a "right" to nullifacation, FIJA addresses that beautifully. The point is moot. The courts recognize that juries have the POWER to do so. That once done it cannot be challenged. And that juries cannot be punished for doing so.

You can do it and it's not a crime. Sounds like a right to me, but I won't bother arguing if you'd rather call it a power.

So it seems to me that it is perfectly legal, unless you pass a law against it. And you should think VERY CAREFULLY about that - a law making it a crime to vote not guilty. I find that to be one hell of a scary idea. I hope it scares you too.

-

Re:that is unconstitutional (see FIJA.org)

[Alsee]

Frontline may tape jury deliberations in a TX capital case, if it is approved. I don't think it will be approved, but it would be interesting.

Yike! It would be cool to watch, but I sure hope they wouldn't record it in the first place without unanimous consent from the jurors.

Hmmm, now that I think about it, it should require consent from the defendant too. I can't think of any reason it would need consent from the prosecution, but there may be something I didn't think of.

-

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

Maybe it is semantics, but a law the jury refuses to enforce is no law at all. Regardless, the jury does not have that right, except in the abstract.

FIJA is very misinformed and misinforming. The "power" argument is like saying I have the "power" to steal bread with my invisibility cloak. OK, true as a matter of fact not law, because no one can catch me. Is the point that stealing is not my right then "moot"?

If even mentioning this supposed power during voir dire or during deliberations gets to booted off the jury, what kind of power is that? In truth, nullification is an abuse that it would be more damaging to root out that to try to discourage. Not much of an endorsement.

Do read through the other stuff I dug up and posted, particularly the 2nd Circuit decision I blockquoted. These other sources are probably more lucid than I.

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

Yes, they're thinking the same things as you.

Guess who opposes it? The prosecutor.

Texas is #1 in U.S. executions and so is of particular interest for a capital trial. The show is the kind of thing I'd like to see, and Frontline is pretty level-headed, but not if it were possibly damaging to a life/death decision. So I'd like to see it but don't think they should do it. :)

Oral arguments are scheduled for Jan 15.

Re:that is unconstitutional (see FIJA.org)

[Alsee]

I read the link "Prosecutors appeal taping in Texas jury room".

Very interesting.

From the article it is unclear if they are considering asking potential jurors first and then only selecting those who are willing. That doesn't sound good to me. They should only go ahead with it if it does not affect the regular process, and that would affect it.

FWIW, it seems to me the way it might be OK to go ahead with it would be to select the jury first and ask if they consent second.

I would give the defendant, jurors, and judge unquestioned veto power. Run the case exactly as normal, and if any of them says "No thanx" then don't set up the cameras.

It might also be a good idea to give them all veto power in the middle of the process to stop the cameras after the recording has started. That could simply halt the recording, or it could be retroactive and cause the tapes to be destroyed unviewed.

Again, I can't really see a good reason for the prosecution to have veto power. If the prosecution has a legitimate objection he ask the judge to use his veto.

-

Re:that is unconstitutional (see FIJA.org)

[dbrutus]

I would say that it is one of the unenumerated rights of the people.

Yes jury nullification is a double edged sword. Then so is free speech and the rest of the Bill of Rights. If we are to treat all double edged swords with suspicion, we might as well treat the entire Bill of Rights that way. Which one of them is not subject to being used badly? In fact which one of them (outside of Amendment III) has not been used badly?

No, clearly the KKK marching in Skokie should have as little impact on the 1st amendment as the racist southern nullifications of decades past. If it's not so, what legal reasoning justifies disparate treatment? Were the anti-federalists right when they said enumeration of a Bill of Rights would eventually eviscerate all rights of the people that didn't make the list?

Re:that is unconstitutional (see FIJA.org)

[Alsee]

but a law the jury refuses to enforce is no law at all.

But isn't it the foundation of the US that the law/governments' sole purpose is the benefit of those subject to them? And the sole authority of that government and those laws is the consent of those subject to them?

The US system is an almost endless string of checks designed to prevent the government from imprisoning people. The senate can block it by not passing the law. The House can block it in the same way. The president can veto it. The police can decline to make an arrest (many laws on the books are rightly not enforced). The DA can decline to persue the case. The grand jury can decline to indict. The judge can dismiss. Various other courts get to take a shot at it.

And finally the jury gets their turn.

A properly empaneled set of jurors is a random cross-section and duely authorized set of representives of the population. The law exists for thier benefit. The law derives its authority from their consent.

As I understand it anything other than a unanimous vote is a mistrial. If authorized representitives of the population unanimously say the government should not imprison this person in this case then that sounds pretty legitimate to me.

The law is a good thing, it protects and benefits us all. But the more opportunities to prevent the government from going astray and miss-aplying its power the better. Jurors are just one of many checks upon the government.

-

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

PBS/Frontline has extensive data on this project -- a FAQ that talks about Judge Ted Poe a bit, and similar tapings to date.

This is a good example of the First Amendment running into fair trial concerns.

The only completely safe way to do it would be to tape it without telling any of the jurors.

But that might raise certain privacy issues, plus it would just pollute every single jury deliberation that follows! ([whisper]Hey ... where do you think they hid the camera?)

I'm 90% they were going to ask consent at voir dire. Only 14 of 110 refused. Funny, the prosecution's objection: "Allowing a camera in the jury room during capital murder deliberations would violate Texas law by creating new reasons to disqualify potential jurors, Harris County prosecutors are arguing." However, "a lawyer for state District Judge Ted Poe, who approved the videotaping for a documentary, said Wednesday that the new argument to ban the camera was raised too late." Note that the judge has a lawyer!

I agree that the prosecution's standing is a little hard to figure, though I would really want their agreement to videotaping. They appear to be positioning themselves as defending the jurors, although 9 out of 20 jurors said no problem. At bottom, they must feel that the cameras will decrease likelihood of a death sentence -- now why it would is an interesting question. If death is chosen or not, we know how everyone voted anyway. So it must be something in the deliberations themselves.

Veto power is a very good suggestion, at least before the verdict is in. It's all really in the trial court's discretion, unless the appeals court says never in Texas. It could then go to the TX Supreme Court. This is interesting.

Of course, more important is that they get the verdict right. Cameras helped make hash of the OJ trial.

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

I would say that it is one of the unenumerated rights of the people.


That's kind of a good one, but such a right has never been recognized. Quite the opposite, our courts routinely condemn it.

"the KKK marching in Skokie" is basically understood as valid free speech caselaw. This has nothing to do with the subversion to our judicial system posed by jurors feeling free to ignore the laws and the evidence.

I have no idea whether it should be a right, just that it does not exist right now. Many people say it does, but then it's a right you can never admit to using if you want to be a juror -- you have to lie to use it. Sounds fishy, doesn't it.

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

Jurors are just one of many checks upon the government.

Yep. But not this way. Kind of weird that of the checks and balances, just nullification would be a secret, huh? Sometimes you have to break the rules to do the right thing, but if you nullify you're still breaking the rules; it's not your right. As the rules are now, if you believe in nullification you have no place on a jury -- or on the bench for that matter.

Re:that is unconstitutional (see FIJA.org)

[Alsee]

Kind of weird that of the checks and balances, nullification would be a secret

I don't see any reason for it to be "secret". I think it is exactly how the authors of the constitution intended the system to work. And it makes sense to me. It's nothing but a fancy name for voting "no".

As the rules are now, if you believe in nullification you have no place on a jury -- or on the bench for that matter.

The purpose of the juditial system is not to get as many convitions as possible. A jury is supposed to be a fair cross section of the population. Is it worth getting a conviction if you have to stack the deck to do it?

-

Re:that is unconstitutional (see FIJA.org)

[dbrutus]

We (anglo-american common law jurisdictions) used to throw jurors in jail for refusing to convict. We don't do that any more. What else, besides a recognition of jury nullification, explains the cessation of the practice of imprisoning or otherwise punishing jurors?

As for having to lie to use nullification. I did not lie and have never done so when asked about nullification the two times I was called to jury duty. I was disqualified in NY and not disqualified in a Chicago trial (malpractice case). I actually served as foreman in the end. We voted not guilty, not on nullification grounds, the guy simply didn't deserve to get convicted though both side's lawyers were snakes and we all thoroughly detested them.

If the entire jury pool would all answer that they would exercise their right to jury nullification, eventually the judges and the lawyers would be forced to give up their practice of using their ability to dismiss jurors for answering honestly that they would not convict. I expect someday that this will happen but the suppression of the right does not nullify the right even as Bull Connor and his fire hose did not change the Constitution.

Re:that is unconstitutional (see FIJA.org)

[dbrutus]

The Supreme Court may settle a question with a sense of finality but the constitutionality of something exists independently of whether the SC has decided on it or not. To argue otherwise makes me question your actual bar status.

The SC denies certiori in the vast majority of appeals. Are cases that appeals courts have determined a law unconstitutional moot merely because the SC denies cert? If a district or appeals court rules the same direction as a 9-0 majority would on the SC, most time's they're going to deny cert.

Re:that is unconstitutional (see FIJA.org)

[MacAndrew]

You have *no* idea what you're talking about.

jurisdiction

[MacAndrew]

There is no insult in trying this case here. The basis rule is that if you violate the law of another country within their jurisdiction, they've got you. It is a potentially frightening aspect of the internet, but is merely an outgrowth of the law if you murder someone on foreign soil -- you could be prosecuted there even if that country's law were repugnant to American values.

ElcomSoft was knowkingly doing business in the states, in willful violation of the law. End of (jurisdictional) story.

May be to keep the jury on topic

[0x0d0a]

It could be that (I'm not following the case) the Elcommsoft people are making a claim that the DMCA is a bogus piece of legislation or something. While I certainly feel for them, the job of the jury is not to evaluate the worth of the DMCA (I know someone's going to bring up jury nullification here, but that's insanely rare). The judge may be trying to prevent Elcommsoft from moving the emphasis from their guilt under the existing, passed-into-legislation law (which is what is at issue) to whether that law is just or constitutional or something (which is for the Supreme Court to decide, not the jury).

Go figure.

Re:May be to keep the jury on topic

[TheGratefulNet]

jury nullification is rare since most citizens don't KNOW about it. and I read that lawyers are, for all practical purposes, BANNED from even telling jurors they have this basic right.

jury nullifcation is one of the most important things I've ever learned about our (US) legal system. its a shame its down-played so much. it gives SOME balance of power back to the jury instead of it being a bunch of pawns, which is what many judges seem to want.

Re:May be to keep the jury on topic

[ealar dlanvuli]

well.. so um

what is it?

Re:May be to keep the jury on topic

[dbrutus]

You might want to look up the Peter Zenger case. The entire principle of press freedom was established via a case of jury nullification. The jury has a right to decide on both the facts and the law.

I've been called for jury duty in both NY and IL. Interestingly, in NY, they played a tape that went over the Peter Zenger case and its importance (though they did not use the words jury nullification). Then again, in answering the judge's question I answered that yes, I would nullify if I felt it was called for. The judge and both attorney's pulled me aside, grilled me to abandon my position and when I wouldn't, the judge used his option to disqualify me from trial.

In Illinois, there was no mention of jury nullification or the Zenger case, the judge went temporarily off the record and stated to the jury that they were not to judge the law (it was the only time during the proceedings he went off record). I again answered the question that yes, I would nullify but this time was not disqualified (perhaps the judge did not notice, perhaps not, he was asking us in a group of 12 to simultaneously answer). I ended up being jury foreman and we unanimously acquited (though not on nullification grounds the law was fine, the guy just wasn't guilty).

Well, that's my own personal experience. I hope it corrects your impression that the law is not up to the jury to decide. It is and it always has been.

Re:May be to keep the jury on topic

[einTier]

In a nutshell, the jury has the right to say, "Yes, the defendant is guilty of the law in question, however, we feel the law is unjust, and therefore declare it null and void in this case."

Re:May be to keep the jury on topic

[skotte]

you make good points. not only is it to keep the jury on target but also, in appending to that is this tidbit:

The Jury's job is to evaluate the material presented to them. I've served jury duty, and we really wanted to know more about a certain piece of evidence. it probably would have made one side or the other's case. however, that data was not presented, therefore it was "out of bounds". or in other words, if it isn't spoken or presented, and isn't within our reasonable background of knowledge as jurors, then we are not allowed to consider it.

now, had elcommsoft's defense presented the text of the law, it may have been readable by the jury. (but the judge can deny it. which is a whole other matter)

Re:May be to keep the jury on topic

[Anonymous Coward]

+1, Local hero :-D

Re:May be to keep the jury on topic

[CrazyJoel]

"jury nullifcation is one of the most important things I've ever learned about our (US) legal system."

Didn't it also allow lynchings to go on in the South without fear of punishment?

Re:May be to keep the jury on topic

[studerby]

The classic example of jury nullification is the refusal of English juries to convict banknote forgers when the penalty was death.

"When in respect of any class of offenses the difficulty of obtaining convictions is at all general in England, we may hold it as an axiom, that the law requires amendment. Such conduct in juries is the silent protest of the people against its undue severity. This was strongly exemplified in the case of prosecutions for the forgery of bank-notes, when it was a capital felony. It was in vain that the charge was proved. Juries would not condemn men to the gallows for an offense of which the punishment was out of all proportion to the crime; and as they could not mitigate the sentence they brought in verdicts of Not Guilty. The consequence was, that the law was changed; and when secondary punishments were substituted for the penalty of death, a forger had no better chance of an acquittal than any other criminal. Thus it is that the power which juries possess of refusing to put the law in force has, in the words of Lord John Russell, `been the cause of amending many bad laws which the judges would have administered with professional bigotry, and above all, it has this important and useful consequence, that laws totally repugnant to the feelings of the community for which they are made, can not long prevail in England.'" W. Forsyth, History of Trial by Jury 367-368 (2d ed. 1971).

As cited by Justice Douglas in FURMAN v. GEORGIA, 408 U.S. 238 (1972)

And the average educated person?

[phorm]

...it's generally done on the grounds that the law is so obtuse that the average juror wouldn't understand it...

So if a jury can't understand it enough to render a decision... how is the average person supposed to be able to understand it enough to avoid infringing it?

Re:And the average educated person?

[DragoonAK]

Isn't that kind of the point?

Either they're so scared of the law's ambiguity that they stay far away, or, even if they do understand it arguing in court is going to be far more expensive since lawyers just love bickering over ambiguity.

And the only way to fix it is through political power, and the politicians win again.

Re:And the average educated person?

[phorm]

In Canadian cases laws are at times stricken down because of too much ambiguity (not specific enough) or because they're just plain incoherent.

One must go through court to have it stricken, but if you got a judge with a brain... seems to me in a case where the jury couldn't even grasp the law, it's a bit too ambiguous and unclear for the normal person and should be trashed. Guess it doesn't work that way elsewhere though.

Re:And the average educated person?

[FireWhenRady]

In Canada in the 1970's the law against abortion was removed from the books because a number of juries (3 different cases) refused to convict Dr. Henry Morgentaler of providing an abortion. After he was found not guilty by several different juries, the government threw in the towel and changed the law.

Juries can change the law.

Re:And the average educated person?

[phorm]

Yeah, a bunch of laws can be nuked that way. Every now and then they try to sneak an ugly one in that's super-ambiguous. And it goes for awhile, until somebody has the guts to challenge it, and then (if the judge has brains and the challenger some money) it gets struck down. And then at times, rewritten to be as close as possible to the first, and reinstated until the process cycles.

Jury Nullification

[exhilaration]

Check this out. Disclaimer: I didn't know anything about it, but this is best hit I got on Google. It's a fascinating topic that I knew nothing about.

what does that make you?

[DrSkwid]

because you just opened your mouth and spoke total bollocks

bad link

[MacAndrew]

I hate it when that happens.

Elcomsoft papers

money quote

[medcalf]

If it is true that the jury's "prerogative of lenity," Dougherty, 473 F.2d at 1133, introduces "a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions," Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law.

I fully agree with this statement, and answer the "if" clause in the affirmative. The juror has a duty to ensure that the law is appropriate as applied to the actions of the defendant (that is, the defendent is not being overcharged), that the law is Constitutional, and that the punishments allowed by the law are appropriate to the facts of the case. The judge has a duty to ensure that the law is upheld, and is acting within his duty to dismiss jurors during voire dire (sp?) if the judge suspects that the juror will not uphold the law. These are checks and balances which are wholly appropriate.

It should also be noted that the scope of a decision is very important. A law is not rendered moot by jury nullification - such nullification affects only a single case. Nor is a law rendered moot by the decision of a judge to overturn the law. That only applies to his court or district. Even if the Supreme Court declares a law unconstitutional, the prosecution may continue to bring cases under that law (though as a practical matter, such cases would be dismissed in every court in the land, and an overzealous prosecutor might find himself subject to a wrongful prosecution suit) as long as the law is on the books.

Re:money quote

[MacAndrew]

That passage is difficult to parse, but what I understand the court to be emphasizing is the trial judge's obligation to see that the law is followed. They are really talking about the juror's obligations, and take pains to emphasize their very dim view of nullification in any form -- hence the skeptical words "If it is true..." The court says that even if nullificatrion is normal factor it only redoubles the importance of the judge's careful scrutiny. The holding essentially says that jurors must follow the law and any juror inclined to nullify shall be dismissed immediately upon the court receiving appropriate information. This has happened even during deliberations, in a case where a juror wrote a note to the judge declaring her intentions.

You're right about scope of precedent, except that jury nullification has no significance because it is illegal. All the jury returns is a verdict on guilt or innocence, not special findings about the laws, although nullification might be inferred from the strangeness of the verdict or later statements of the jurors. So the scope of nullification is limited to the scope of the case in the same way a mistrial is, except that a mistrial can be remedied with retrial.

The judge's rulings of law are the law of the case alone; the other trial judges are not bound to any particular rule until an appeals court decision comes along. Special rules kick in if the validity of a law is drawn into question, for example the US Attorney must be notified, if not already a party to the case, to render their opinion; and rarely would the voiding of a law not be appealed immediately. Last, the prosecution may not bring cases under a law declared void (moot is something else); it would not even get a grand jury indictment, and the mere filing even once would be malpractice, prosecutorial misconduct, and so on. The prosecutor might well lose his or her job and face bar disciplinary sanctions up to the loss of their license. One thing that will really make a court flip out is to disregard its ruling, and a prosecutor abusing the power of the office is a particularly terrible thing.

Boy, this little point has spilled a lot of ink, hasn't it?

Re:money quote

[Anonymous Coward]

"they" and "their" are singular pronouns, not plural.

Re:money quote

[MacAndrew]

Their is not a pronoun, but an adjective, the possessive form of they.

They is a plural pronoun. You may be confused by my references to the court because it has three judges on the panel, "they."

And of course I make my share of typos, though I did pretty well here.

Re:money quote

[dbrutus]

Please, can you cite the penalty for breaking this law, when last someone was charged with violating this law or even what specific code is being violated? I know about the Penn trial and about various attempts in English law centuries ago that imprisoned jurors for failing to convict as the judge instructed them to but that's never been US jurisprudence AFAIK. Please feel free to cite a case...

Re:money quote

[MacAndrew]

There is a reluctance to intrude on jury room proceedings or to subject jurors to the fear of prosecution. This goes to the fair trial right. There are exceptions for extremes like jury tampering, the intrusion of outside influences such as bribery. The truth is, most jurors do their jobs.

I quoted a case here somewhere affirming that a juror should be dismissed per court rules if he or she intends nullification. It is hard to see how exercising one's right is grounds for dismissal, isn't it?

We adopted the basic British framework but dropped plenty of it. I don't know details on how or when, just what we've been doing for 200 years.

Re:money quote

[dbrutus]

Answer me this, what legal oaths are not subject to criminal proceedings when they are violated? If the violation of the oath is not punishable, why take an oath at all?

Why aren't we imprisoning jurors when they clearly are nullifying? Why aren't we giving jurors instructions that they *must* convict, rather that they *should* convict if the facts and law show beyond reasonable doubt that the defendent is guilty? OTOH, jury instructions are that they *must* vote not guilty if there is reasonable doubt? Why is there a lack of symmetry? Could it be judicial recognition of nullification? I think it is.

theoretically....marriage is illegal

[ruebarb]

Hell, considering the number of women who marry for financial reasons (a 'la Joe Millionaire) - then technically every woman who married a man in part because of how much he makes is having sex for money...LOL

as my married friend joked when I told him he should be glad he doesn't have to pay for sex anymore..."oh, you pay...you pay...every day in many different ways, you pay...LOL"

RB