Comment by tzs | Hacker News Reader

Comment by tzs | Hacker News Reader

    “I don’t want them to nullify the murder laws,” he said.  
    “I’m a big law-and-order guy when it comes to real crime.”

    But, he said, there were other laws he wanted to nullify,
    like drug and gambling laws.

You can't get one without the other. There is no murderer that some don't consider unjustly prosecuted. For instance there are a lot of people that would use nullification if told about it when trying someone accused of killing an abortion doctor.

Worse, once you tell a jury they can judge the law you will get juries that go for anti-nullification--that is, they will convict the defendant even though they do not believe he broke the law. In this case at least the judge or an appeals court can reverse the conviction...if they can tell it happened. In many cases they won't be able to tell. In most cases, the prosecution alleges a set of facts that if true support conviction, and the defense alleges that those facts are not true. There is no way in general for the judge or the appeals court to distinguish between "jury believed prosecutor's alleged facts and so convicted" and "jury believed defendant's view of facts but convicted anyway".

Another problem is different outcomes for similar defendants. If 5-6% of people think that a particular law should not have passed, and a unanimous jury of 12 is required for conviction, then 50% of guilty defendants get a jury that will not convict.

It's really hard to design a system of checks and balances where you tell juries about nullification but somehow stop the bad outcomes I described above. The best anyone has been able to come up with is to not tell the jury about it. The idea then is that it is only applied in cases where some juror decides that his conscious would find convicting so wrong that he must violate his oath.

While it's true we don't want juries nullifying casually, it would be a great loss if they never did it at all. The jurors are the only people in the system who are not answerable to anyone else -- not the appellate courts, not the DA, not the voters. When the system is corrupt, as at various times and places it certainly has been and continues to be, jury nullification is in some cases the only way a just verdict can be reached.

No, it's not perfect, but neither is the system it's intended to counterbalance. I believe that the possibility of jury nullification is the most important reason that the Constitution guarantees a trial by jury.

The whole point of a jury is that it is a check on government power. Before a person can be convicted of a serious crime, a jury of his peers, not just the government, must convict him.

Your hypothetical of a jury maliciously convicting even without evidence is a misleading one. In order for a false conviction to take place, someone in the government must have already screwed up: the police who investigate, the prosecutor who brings the charges, the judge or the grand jury who determine the sufficiency of the evidence, the prosecutor who decided to bring the case, the judge who allowed a biased jury to be seated, etc. Also, in most states, the defendant has the right to waive his right to a jury trial, so a defendant who is wrongly and maliciously convicted by a jury chose to be tried by a jury instead of the judge.

If a defendant is so unfortunate as to be tried in a place where both the government and his peers on the jury are willing to maliciously break the law to convict him, then no legal system would be able to help him. Trial by jury affords defendants some protection against the government, but it does not guarantee perfect justice all the time.

And you can't have true freedom of speech while simultaneously preventing people from being jerks and saying mean things. Surely not telling people they have freedom of speech is an absurd solution.

The consequences of legally obligating a jury to rule as the judge feels is proper are MUCH worse than any of the consequences you have described.

Nullification is a check against the power of the state. Jury nullification was used all the time in the North to protect escaped slaves.

Yes, but look at the South where it was hard to get a white jury to convict a white defendant for a crime against a black. That's nullification too.

To repeat: jury nullification is a check on state power. It prevents the state from convicting. A lot of US criminal procedure law functions the same way: it prevents conviction. The presumption of innocence, the burden of proof, the right not to be unreasonably searched, the right to an attorney, the right to present and confront witnesses, etc, all can function to prevent the conviction of a guilty person. We accept this because we think that too much state power is worse than regular crime. If you want to be sure of convicting the guilty every time, you're going to have to accept the loss of many freedoms as well as the conviction of many innocent people.

Do you think forbidding jury nullification would've done anything to stop that?

If jury nullification is outlawed only outlaws will nullify juries.

You can't get one without the other.

I don't think you're reading his comment correctly:

> "I don’t want them to nullify the murder laws," he said.

I read this to say that he doesn't want it to happen, i.e., he hopes that it will not. He never says that such an outcome ought to be forbidden, just that it's not desired.

> It's really hard to design a system of checks and balances where you tell juries about nullification but somehow stop the bad outcomes I described above. The best anyone has been able to come up with is to not tell the jury about it.

Given that the internet exists, how do you propose to keep jurors ignorant of it?

Even without the internet, if an idea exists then knowledge of it will spread unless it's kept a strict secret. Further, protecting a system by promoting ignorance of said system protects neither the system nor the people it's designed to serve. Rather it endangers everyone who is beholden to it as the system goes further and further off the rails to justify increasingly erratic behavior. Classic spirit of the law vs. letter of the law debate.

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