Trial by Jury

[CBL4]

According to instruction given by US judges, the jury is only responsible for determing the guilt or innocent of the defendant according to the law. The jury is not supposed to consider whether the law is constitutional or just. The jury is also not supposed to be involved in or consider the sentencing aspect of the law. (Except in death penalty cases.)

It seems to me that one of the most important aspect of a trial is the constitutionality of the law. If the trial is "by jury" why cannot they reject a guilty sentence for what they believe is an unconstitutional law? Ditto for sentencing and justness.

If the trial is "by jury," it seems that the jury should be able to consider all aspect of the trial. Why are certain aspects of trials reserved for judges?

Is there some history to the phrase "trial by jury" that negates my thoughts?

CBL

 

[Mycroft]

It seems to me that one of the most important aspect of a trial is the constitutionality of the law. If the trial is "by jury" why cannot they reject a guilty sentence for what they believe is an unconstitutional law? Ditto for sentencing and justness.

I'm not an attorney, but it seems to me our process already has many places where the constitutionality of a law can be tested. Putting that on jurries is both unnecessary and cumbersome.

I addition, jurries are not legal experts, and a lay-persons understanding of "constitutional" could have more to do with emotional feelings of what "seems right" rather than rule of law.

 

[Bikewer]

Quite right. The Supreme Court, final arbiters of constitutionality, frequently can't come to a strong majority opinion on these matters.
Asking untrained jurors to take this into account is a bit much.

One thing that results in problems are those not-too-infrequent cases where a defendant who has been legally convicted of a crime is found to be innocent, perhaps by DNA evidence or the confession of the actual perpetrator.

In many cases, states are loathe to remove the criminal record of such individuals, on the grounds that they were "legally tried and convicted". In some cases, a great deal of legal manuevering is required to even secure the defendant's release!

 

[Art Vandelay]

I'm not an attorney, but it seems to me our process already has many places where the constitutionality of a law can be tested. Putting that on jurries is both unnecessary and cumbersome.

It's not an issue of "putting that on" juries. The role of the jury is to decide whether the defendant has broken the law. Part of that involves figuring out what the law is. "Determing the guilt or innocent of the defendant according to the law" is inseparable from interpreting the law, of which the constitution is part.

I addition, jurries are not legal experts, and a lay-persons understanding of "constitutional" could have more to do with emotional feelings of what "seems right" rather than rule of law.

The same can be said of "guilty".

Let's start somewhere I think most people would agree with me: suppose you're on a jury. You're told that the defendant is charged with buying a chicken without a license. Over the course of the trial, you become convinced beyond a shadow of a doubt that the defendant did in fact buy a chicken without a license. However, you've never heard of a law requiring a chicken-buying license, so you ask for a copy of the relevant law. The judge tells you that your job is to decide whether the defendant is guilty of buying a chicken without a license, not to figure out whether buying a chicken without a license is in fact illegal. He (the judge) has already determined that it is indeed illegal, and there is therefore no reason for you to inquire further. How would you vote? If you answer "guilty", I don't think you have any business serving on a jury.

 

[Tmy]

Oh geez, next you'll want juries ruling on hearsay and evidence questions. "guilty or not" is already a tough enough job.

 

[ceo_esq]

This isn't an answer to your question, CBL4, but if you're interested in such matters I highly recommend that you read We, the Jury: The Jury System and the Ideal of Democracy by Jeffrey Abramson, which I understand has recently come back into print. I consider it to be one of the best books on the American judicial system ever published for a general readership. (Don't confuse it with a similarly-titled book by Godfrey D. Lehman, which I haven't read.)

The historical dimension of your question is discussed in great detail in Abramson's book.

 

[Skeptic]

Why are certain aspects of trials reserved for judges?

Because then we no longer have equality before the law, but the rule of the mob: sympathetic, or rich, or popular, or defendants (especially those whose victims are "nobodies") would get a "pass" by a jury, while those who are not so would recieve the full brunt of the law's wrath.

This was the case, for instance, in the old South: in effect, white defendants could expect automatic acquittal in a trial for crimes against black victims--if they were brought to trial at all--since the white jury would inevitably decide that the law should not apply in such a case.

 

[Brown]

According to instruction given by US judges, the jury is only responsible for determing the guilt or innocent of the defendant according to the law. The jury is not supposed to consider whether the law is constitutional or just.

If there is a question of constitutionality of the criminal law, the defendant presents that argument to the judge, not to the jury. If the judge agrees that the law is unconstitutional, then the case does not go the jury at all.

If, on the other hand, the judge determines that the law is constitutional, then the jury is not given license to second-guess the judge's decision on this point. Juries have neither the education nor the experience to rule on questions of constitutional law. That is not a criticism of juries; it is merely a reflection of reality. When a judge rules on a serious constitutional question, there are typically hours of research that are required, involving the reading of several previous decisions. There is also an analysis in which the judge determines whether the previous decisions are similar or dissimilar to the case before the bench.

Juries do none of the research or the analysis. And juries are never asked to rule upon the constitutionality of a law.

Most juries do, however, have a sense of fairness. If they feel that the defendant is being accused unfairly, they will try to make their displeasure known. (These expressions of displeasure are NOT the equivalent of so-called "jury nullification," which is the notion that the jury can strike down or disregard laws it feels are unconstitutional or unfair.)

 

[drkitten]

Re: Re: Trial by Jury

Most juries do, however, have a sense of fairness. If they feel that the defendant is being accused unfairly, they will try to make their displeasure known. (These expressions of displeasure are NOT the equivalent of so-called "jury nullification," which is the notion that the jury can strike down or disregard laws it feels are unconstitutional or unfair.)

It should be noted that there is, at least in the United States, a certain groundswell of support for exactly this notion of "jury nullification." (See, for example the American Jury Institute, or just type "jury nullification" into your favorite search engine.)

In practical terms, it is extremely difficult, if not impossible, for the prosecution to get a jury acquittal reversed; if the jury insisted on deciding, in the teeth of the judge's instructions, that they were empowered to judge the vallidity of the law and to acquit on that basis, that would essentially end the matter right there.

Case law is a little bit more ambivalent on the matter. There is well-established precedent that the jury holds the power/right to acquit, but the court has no duty to support that right or to inform the jury of that right, and in fact, any juror who indicates a willingness to exercise jury nullification can be eliminated from the jury pool on that basis. (A useful thing to know if you want to get out of jury duty, esp. if you indicate that you intend to nullify any and all drug-related charges.)

 

[Tony]

The constitution belongs to the people. The power of jury nullification is a natural and desired byproduct of the trial by jury. If you ditch jury nullification, you might as well ditch the concept of a trial by jury and leave the decision to the judge (or a jury of robots).

 

[Skeptic]

The constitution belongs to the people. The power of jury nullification is a natural and desired byproduct of the trial by jury. If you ditch jury nullification, you might as well ditch the concept of a trial by jury and leave the decision to the judge (or a jury of robots).

Well, no, because the juries get to determine the FACTS of the case: whether or not X really did shoot Y or not.

 

[Tony]

Well, no, because the juries get to determine the FACTS of the case: whether or not X really did shoot Y or not.

Yes and I can see many ways a jury, based on the facts, can decide to nullify even if the defendant is indeed in violation of what the prosecution says is the law.

 

[drkitten]

Yes and I can see many ways a jury, based on the facts, can decide to nullify even if the defendant is indeed in violation of what the prosecution says is the law.

Strawman alert.

The prosecution isn't the one that gets to say what the law is. The judge is the one who makes that determination.

 

[Tony]

Strawman alert.

What? I didn't twist his argument.

The prosecution isn't the one that gets to say what the law is. The judge is the one who makes that determination.

Well damn let me rephrase.

Yes and I can see many ways a jury, based on the facts, can decide to nullify even if the defendant is indeed in violation of what the judge and prosecution say is the law.

Feel better?

 

[CBL4]

So what I am hearing is that in some cases the jury does nullify the law. We have a system where either the jury does not consider the legality of the law or does it in a complete vacuum. It seems to me that it is more sensible to codify it and let lawyers present evidence.

Our constitution is a very short document and many of the signers were not lawyers. I do not see why a jury is not competent to make a judgement on it.

CBL

 

[Suddenly]

So what I am hearing is that in some cases the jury does nullify the law. We have a system where either the jury does not consider the legality of the law or does it in a complete vacuum. It seems to me that it is more sensible to codify it and let lawyers present evidence.

Our constitution is a very short document and many of the signers were not lawyers. I do not see why a jury is not competent to make a judgement on it.

CBL

A good way to state it is that a jury has the power to nullify but not the right.

The right to a jury trial means that a person can only be convited by a jury, no matter how clear the evidence may seem.

Meanwhile, the prohibition against double jeopardy forbids the state from retrying a case if there is an acquittal.

Any laws sanctioning a jury for accquitting an "obviuously guilty" defendant would run afoul of the right to jury trial above as it would tend to prejudice a jury towards playing it safe and convicting...

So, the practical effect is that a jury can accquit anyone for any reason. This isn't a particular right, rather just a byproduct of these other rights held by the defendant.


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A jury really isn't qualified as while the document itself is short and simple, it is also very general. Much of our system draws from the fact that we interpret as we go, and absent a really good reason once we select an interpretation we stick with it so that we can have some sense of uniformity in our legal system.

Just setting a jury loose with a copy of the thing and then allowing two lawyers to open a huge can of BS about what it really means is in a practical sense equal to flipping a coin.... It makes the case even more about a lawyers ability to sell land to the jury and less about the real facts. Sounds like fun to me, but seems at odds with what we would want as a justice system...

 

[Iamme]

If the trial is "by jury," it seems that the jury should be able to consider all aspect of the trial. Why are certain aspects of trials reserved for judges?

CBL

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And, isnt' it true that judges can throw out the decision handed down by the jury? Whats *that* all about?

 

[Garrette]

I think, Iamme, that the judge can only do such "throwing out" when it is in favor of the defendant, and usually before the jury has even been handed the case.

Safeguards on the side of the defendant are okay by me.

I'm no lawyer, though.

 

[crimresearch]

Re: Re: Trial by Jury

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And, isnt' it true that judges can throw out the decision handed down by the jury? Whats *that* all about?

Think of it as 'judicial nullification' of jury nullification.

In extreme cases, if it becomes obvious to the judge that the verdict was not rendered legitimately, it would be possible for them to substitute their own verdict for the juror's.

 

[drkitten]

Re: Re: Re: Trial by Jury

Think of it as 'judicial nullification' of jury nullification.

In extreme cases, if it becomes obvious to the judge that the verdict was not rendered legitimately, it would be possible for them to substitute their own verdict for the juror's.

I do not believe that the judge has the authority to substitute anything for an acquittal.

 

[Brown]

I think, Iamme, that the judge can only do such "throwing out" when it is in favor of the defendant, and usually before the jury has even been handed the case.

In a criminal case, this is basically correct. In a civil case, the judge can give a judgment notwithstanding the verdict (JNV) to either side if the jury was out of line (and there are some strict standards for determining whether a jury is out of line).

Sometimes a judge is inclined to take the case away from the jury, and issue a directed verdict. Standards for issuing a directed verdict are very strict, and the chance of reversal on appeal is usually pretty high. So even if the judge thinks very strongly that the defendant is innocent, the judge will still let the jury decide the question of guilt or innocence. If the jury determines that the defendant is innocent, then the result is exactly what the judge thought should happen; and jury verdicts tend to be upheld, so the chance of reversal on appeal is low.

If, on the other hand, the jury comes back with a guilty verdict, and the judge feels that the verdict is clearly motivated by something other than the evidence, the judge can set aside the verdict and the appellate court will determine whether the judge was right. If the appellate court determines that the judge was wrong, the jury verdict is reinstated without another trial. (By contrast, if the judge were to issue a directed verdict, and the appellate court were to determine that the judge was wrong, there would be no jury verdict to reinstate, and the entire case would have to be tried all over again. That is not very efficient, so judges almost never issue directed verdicts.)

 

[Iamme]

Re: Re: Trial by Jury

quote:
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Originally posted by Iamme
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And, isnt' it true that judges can throw out the decision handed down by the jury? Whats *that* all about?
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Think of it as 'judicial nullification' of jury nullification.

In extreme cases, if it becomes obvious to the judge that the verdict was not rendered legitimately, it would be possible for them to substitute their own verdict for the juror's.


__________________

But is this constitutional? Is this what the framers had in mind when they said 'trial by jury'? It sounds more like the jury' verdict stands only if the judge agrees with their decision.

But even if this only applies to blatant legal disregards by the jury...then shouldn't a new jury try the case so that the verdict, in the end, is handed down by a jury, so that we have 'trial by jury'?

 

[shanek]

According to instruction given by US judges, the jury is only responsible for determing the guilt or innocent of the defendant according to the law. The jury is not supposed to consider whether the law is constitutional or just.

No, they are supposed to consider precisely that. They're just being lied to by judges and told otherwise.

Lots more information available here: http://www.fija.org/

 

[Iamme]

If, on the other hand, the jury comes back with a guilty verdict, and the judge feels that the verdict is clearly motivated by something other than the evidence, the judge can set aside the verdict and the appellate court will determine whether the judge was right. If the appellate court determines that the judge was wrong, the jury verdict is reinstated without another trial. (By contrast, if the judge were to issue a directed verdict, and the appellate court were to determine that the judge was wrong, there would be no jury verdict to reinstate, and the entire case would have to be tried all over again. That is not very efficient, so judges almost never issue directed verdicts.)

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You helped answer a lot of my questions from my post immediately above.

So...that means that the jury in the Michael Jackson trial can't 'fudge' because they know that his admirers, worldwide, would not approve of Michael being put away for years?

And, in the O.J. trial, some of this very thing didn't come into play? Hmmmm. Maybe the judge went along with it, instead of overriding the jurors decision, because the Judge himself was a fan of O.J.?

 

[shanek]

Quite right. The Supreme Court, final arbiters of constitutionality,

No, they aren't. Nowhere in Article III are they given this role. The people are the ultimate arbiters of the Constitution, since we ordained and established it. And the jury comes from and represents the people.

Asking untrained jurors to take this into account is a bit much.

William Penn disagrees, as does John Peter Zenger (and his attorney Alexander Hamilton), John Hancock (and his attorney John Adams), all the people who helped fugitive slaves escape who were acquitted despite the fact that they clearly broke the law, and countless other examples.

Moreover, jury nullification is precisely what led to many concepts in common law still in use in our courts, such as the idea that truth is a defense to libel (as established in the Zenger case).

In the Declaration of Independence, Jefferson accused the King of "depriving us, in many cases, of the benefits of Trial by Jury." The very reason why the King kept denying this was because he had trouble getting his tyrannies past the juries. For example, the jury acquitted John Hancock because to do otherwise would mean supporting the Townsend Act, which they didn't. Since the King couldn't get these past the juries, he started taking smugglers into military court and trying them without juries. So, make no mistake: one of the "benefits of trial by jury" that Jefferson mentioned, maybe even the most important one, was jury nullification.

Besides, it's we, the people, who are bound to obey the law, right? So what does it say that we, the people are unable to understand the law? If we can't understand the law, how can we be expected to obey it?

 

[shanek]

Re: Re: Trial by Jury

Because then we no longer have equality before the law, but the rule of the mob:

That "mob" is otherwise known as "the people," who are the source of all legitimate government powers in this country.

This was the case, for instance, in the old South: in effect, white defendants could expect automatic acquittal in a trial for crimes against black victims--if they were brought to trial at all--since the white jury would inevitably decide that the law should not apply in such a case.

The key word there is, "white jury." The problem wasn't jury nullification; it was the fact that the government prohibited blacks from serving on juries.

Amazing how those who try to argue against jury nullification always bring this example up, and always fail to mention the problem with jury selection, which was the real root cause of the problem.

 

[shanek]

Re: Re: Trial by Jury

Juries have neither the education nor the experience to rule on questions of constitutional law.

Blatant statist apologetics. The juries represent we, the people, who ordained and established the Constitution, and from whom all legitimate political power derives. They absolutely get to consider the Constitution.

When a judge rules on a serious constitutional question, there are typically hours of research that are required, involving the reading of several previous decisions.

Which is the problem: there's too much examination of interpretations of interpretations, and too little actually reading the Constitution.

 

[shanek]

Re: Re: Trial by Jury

And, isnt' it true that judges can throw out the decision handed down by the jury?

Not an acquittal. They can only set aside a conviction or change it to a conviction of a lesser charge.

 

[Iamme]

shanek---But basically it is because the judge thought the jury took improprieties regarding their decision? He simply can't overrule the jury because he thought the party was innocent instead of guilty, correct?

 

[Skeptic]

Re: Re: Re: Trial by Jury

That "mob" is otherwise known as "the people," who are the source of all legitimate government powers in this country.

That's quite true. The people ARE the legitimate source of all government power in the USA... including the judicial and legislative powers.

So, let's see what we have here:

ON THE ONE HAND:

1). A law, enacted by the people through their representatives in Congress;

2). Which, as the principle of equality before the law says, is intended to be applied equally to all--a principle found in the Constitution, the basis of all law, the one enacted by the people;

3). A judge whose job is to interpret this same law, who is either elected by the people or appointed by an executive and legistlative branch members who were elected by the people;

ON THE OTHER HAND:

Twelve jurors, who decided that the will of the people as expressed by (1), (2), and (3) above should not count.

As you quite rightly say, the laws passed by Congress, the judges who sit in trial, etc., get their legitimacy precisely because they represent the will of the people (through elections): this is why, for instance, it's "The people of the USA (or a certain state) versus Joe Schmoe" in a criminal case.

And since the laws represent the will of the people, twelve jurors have no more right to decide against obeying the law than a judge or a governor or a president has, no matter how much they feel they represent what the people "really" want.

 

[CBL4]

Originally posted by ShaneK
So, make no mistake: one of the "benefits of trial by jury" that Jefferson mentioned, maybe even the most important one, was jury nullification.

Do you have a link about Jefferson and jury nullification?

Thanks,

CBL

 

[CBL4]

Does anyone have any thoughts on sentencing and the jury. For example, a juror might think the defendant deserves to go to jail for one month but the law requires a 10 year sentence. Knowing this the juror, might choose acquital as the lesser of two evils.

I know of some instances where the jurors guessed at sentences to determine the proper verdict. This is especially true when the prosecutor tries a man for two different crimes (e.g. murder and manslaughter) in order to ensure a guilty plea.

CBL

 

[Tony]

Re: Re: Re: Re: Trial by Jury

As you quite rightly say, the laws passed by Congress, the judges who sit in trial, etc., get their legitimacy precisely because they represent the will of the people (through elections)

The extent to which politicians reflect the will of the people ends at the voting booth. After that, politicians represent the will of special interest groups, ideologies, moral police, religious sects, business interests, and party politics.

It's silly to assume that since someone was elected or appointed by someone who was elected that anything they do, regardless of it's constitutional validity, is the will of the people.

 

[shanek]

shanek---But basically it is because the judge thought the jury took improprieties regarding their decision? He simply can't overrule the jury because he thought the party was innocent instead of guilty, correct?

The judge can basically decide that the jury wasn't being reasonable, that no reasonable jury would convict, and overturn the conviction and direct a finding of not guilty. But he can't do it the other way around.

 

[shanek]

Re: Re: Re: Re: Trial by Jury

That's quite true. The people ARE the legitimate source of all government power in the USA... including the judicial and legislative powers.

So, let's see what we have here:

ON THE ONE HAND:

1). A law, enacted by the people through their representatives in Congress;

2). Which, as the principle of equality before the law says, is intended to be applied equally to all--a principle found in the Constitution, the basis of all law, the one enacted by the people;

3). A judge whose job is to interpret this same law, who is either elected by the people or appointed by an executive and legistlative branch members who were elected by the people;

ON THE OTHER HAND:

Twelve jurors, who decided that the will of the people as expressed by (1), (2), and (3) above should not count.

As according to THE CONSTITUTION, which trumps all other laws. The Constitution set up the guarantees of trial by jury.

As you quite rightly say, the laws passed by Congress, the judges who sit in trial, etc., get their legitimacy precisely because they represent the will of the people (through elections):

And juries represent the will of the people in court cases. They're part of the system of checks and balances. Removing jury nullification is removing the last ditch effort at preventing the creation and enforcement of tyrannical laws.

this is why, for instance, it's "The people of the USA (or a certain state) versus Joe Schmoe" in a criminal case.

No, it's because the government likes doublespeak. They really mean "the government vs." whoever. The prosecution represents the government. The jury represents the people.

 

[shanek]

Do you have a link about Jefferson and jury nullification?

How about:

"I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution." &letter to Thomas Paine, 1789

"If the question before [the magistrates] be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case of a combination of law and fact, it is usual for the jurors to decide the fact and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right which is casual only is less dangerous to the state and less afflicting to the loser than one which makes part of a regular and uniform system." —Notes on the State of Virginia, 1782

 

[shanek]

Does anyone have any thoughts on sentencing and the jury. For example, a juror might think the defendant deserves to go to jail for one month but the law requires a 10 year sentence. Knowing this the juror, might choose acquital as the lesser of two evils.

I don't think they allow attorneys to tell the jury what the possible sentences are.

 

[Skeptic]

No, it's because the government likes doublespeak. They really mean "the government vs." whoever. The prosecution represents the government. The jury represents the people.

But it is a REPRESENTATIVE government, is it not? That is, a government that represents the will of the people--as enacted through their representatives in Congress, etc.

This is the logical problem at the heart of the Libertarian view: they make no distinction between a despotic government and a representative one.

Representative government, while imperfect, is not some alien being as opposed to "the people"; however imperfectly, it IS part of "the people" and represents what "the people" want.

 

[Iamme]

How about:

"I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution." &letter to Thomas Paine, 1789

"If the question before [the magistrates] be a question of law only, they decide on it themselves: but if it be of fact, or of fact and law combined, it must be referred to a jury. In the latter case of a combination of law and fact, it is usual for the jurors to decide the fact and to refer the law arising on it to the decision of the judges. But this division of the subject lies with their discretion only. And if the question relate to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right which is casual only is less dangerous to the state and less afflicting to the loser than one which makes part of a regular and uniform system." —Notes on the State of Virginia, 1782

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Sounds like doubletalk. The author of this was either drunk, tired or someone did not copy the original document very well. You can tell in certain sentences above, that there are words missing, that should be there, or, at the least, there are some s's missing after some words. To try to read this quickly, without those words or s's, it sounds like I said, like doubletalk.

 

[shanek]

But it is a REPRESENTATIVE government, is it not?

It's first and foremost a CONSTITUTIONAL government.

That is, a government that represents the will of the people--as enacted through their representatives in Congress, etc.

No, that would be the Constitution that represents the will of the people, as enacted by the states. In doing so, they have charged Congress with certain duties, and given them certain LIMITED powers.

This is the logical problem at the heart of the Libertarian view: they make no distinction between a despotic government and a representative one.

Because without a Constitution, the only difference is the number of targets when it comes time to overthrow the tyranny.

Representative government, while imperfect, is not some alien being as opposed to "the people"; however imperfectly, it IS part of "the people" and represents what "the people" want.

No, that would be the Constitution again.