Truth and Jury Nullification

Jurors in Texas must swear that they “will a true verdict render according to the law and the evidence.”

My Guest Blogger maintains that a nullification verdict is not “a true verdict according to the law and the evidence,” insisting that “true” in the context means “Guilty if he’s guilty and not guilty if he’s not.”

He is wrong.

Around these parts (Defending People) we talk about “legal guilt” and “factual guilt.” “Legally guilty” means “found guilty beyond a reasonable doubt after a trial or a guilty plea.” “Factually guilty” means “he did a bad thing.”

If GB means to say “The jury must find the accused legally guilty if he’s factually guilty and not legally guilty if he’s not factually guilty,” (the only non-tautological meaning that I can see for his statement) then he’s flat-out wrong. There are lots of situations in which a person is factually guilty must be found not legally guilty.

For example, where the government has accused him of some other bad thing than the bad thing he did.

Or where he did the bad thing he’s accused of, but the government hasn’t proven its case beyond a reasonable doubt.

Or where (in Texas) the government has proven its case beyond a reasonable doubt but the jury is required by Article 38.23 to disregard some of the government’s evidence because the jury has a reasonable doubt about whether the government violated the law when it obtained the evidence.

Whether GB likes it or not, jury nullification is a part of our law. (Why it has historically been is a discussion for a smarter blogger [like Clay Conrad]. Why it should always be and, as long as we have juries, will always be, is a discussion for another post.) By definition the judge can’t instruct away jury nullification.

Because jury nullification is part of the law, a jury that follows its conscience and acquits a person in the teeth of the government’s evidence and the court’s instructions is rendering a verdict according to the law; it is true in the same sense that, and no less true than, the 38.23 acquittal is true.

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0 responses to “Truth and Jury Nullification”

  1. Mark, if anyone is still actually following this discussion, I’d like to say we’re making some halting progress, as evidenced by the grudging acknowledgement by PJ, michael, and others that jury nullification by necessity involves lying.

    But while I see the distinction you are making between legally and factually guilty, that is not what I meant at all. In all of the situations you described, a not guilty verdict would have been proper because of a lack of evidence, the wrong charge, etc. But none of those require jury nullification. This appears to be a matter of some confusion to the posters here, who seem to regard any seemingly improbable acquittal as jury nullification. Here’s the Merriam Webster definition:

    Jury nullification: the acquitting of a defendant by a jury in disregard of the judge’s instructions and contrary to the jury’s findings of fact

    Nicely put. So for my nullification hypo (and it IS mine, as much as it causes consternation in this particular set of pie-in-the-sky liberal posters) the defendant is guilty. Legally guilty, factually guilty, morally guilty, and even, to quote The Producers, “Incredibly guilty!” He’s guilty, awright? Everyone knows it, including the nullifying juror. But that juror acquits anyway because they disagree with the law. That is jury nullification. It is also lying, denying reality, and oath-breaking.

    It is also, or at least HAS BEEN also a part of our law. No denying that. It is a part of our legal history, just like bills of attainder, indentured servitude, and the electric chair.

    Unfortunately for jury nullification proponents, “the law” referred to in the Texas juror’s oath is not natural law (LOL), common law, Swedish law, or Boyle’s law. It’s the law as given to them in the jury instructions (see a typical jury charge and you’ll find what I’m referring to.)

    That jurors can nullify, I have no doubt. That certain people will argue for them to do so has already happened and is why we are having this discussion. And it’s probably safe to say that, on an individual level, it happens every day in jury rooms all across America. That doesn’t make it right.

    As much as it has been touted as a sacred right by posters here, I have to wonder what they would say if a wave of jury nullification began to derail cases they actually cared about: Police brutality, harrassment of abortion providers, official misconduct, etc. Would it be so popular then?

    All I can say is, any jury nullifier who wants to be on my jury had better have the guts to perjure themselves on the way, because that’s the only way they’re getting there.

  2. No, I think we’re the last two standing.

    Jurors promise to render a true verdict “according to the law,” not “according to the law that the judge instructs us on and only that law.” The point of nullification is that the judge can instruct the jury till he’s blue in the face, but the jurors don’t have to violate their consciences. If the judge said they could do it, it wouldn’t be nullification.

  3. “As much as it has been touted as a sacred right by posters here, I have to wonder what they would say if a wave of jury nullification began to derail cases they actually cared about: Police brutality, harrassment of abortion providers, official misconduct, etc. Would it be so popular then?”

    Well, I can’t speak for anyone but myself, but I actually mean it when I say that I’d rather 100 guilty men go free than one innocent man be falsely imprisoned, so I would rather have jury nullification even when I don’t like the result, than not. It’s supposed to be hard to convict. That’s the whole point.

    It’s tautological to say that the juror is doing something wrong in your hypothetical scenario, because you have already said that your hypothetical defendant is morally guilty. Even though the hypothetical juror would still have the right of jury nullification afforded him by the sixth amendment, he would be making an immoral decision. However, the whole point is that the juror believes the hypothetical defendant to be morally innocent, and I don’t see how any moral person could vote to convict a morally innocent person.

  4. Hey, my acknowledgment that premeditated jury nullification might require deception wasn’t grudging. I just said it requires deception like the Underground Railroad required deception, which means that hanging your hat on deception alone won’t be sufficient to cause people of conscience to reject the concept.

    I freely accept that doing the right thing might sometimes require one to deceive a more powerful opposition. I will acknowledge that circumstances should probably be dire before one might ethically go to this length, but I think if you’re talking about individuals against the formidable power of the State in situations like slavery, perceived unjust imprisonment, the death penalty, etc., then those are mighty enough interests at stake for the individual (certainly in comparison to the State’s interests) to justify acting.

  5. If a person absolutely positively did the crime, and everyone knows this, and the case has gone to the jury, but the jury has not yet rendered its verdict, is there any way in which that person can be legally guilty already? isn’t legally guilty a state that can only be reached once a verdict of guilty has been entered? The law doesn’t play favorites, or so I thought.

  6. One more word:

    Prosecutors take an oath too. They swear to seek justice, not merely convictions.

    When a jury nullifies, they unanimously find that the conviction the prosecutor was seeking would not be just.

    Shouldn’t the prosecutor then lose his law license, for violating HIS oath? After all, oaths are so important, right?

    Or does GB agree with Kelly Siegler, that anything is justified in seeking a conviction — violating Batson, slandering an entire church, whatever it takes…

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