Since I was unavailable for a good portion of this discussion, I also want to jump back and address something.
"Rym says that every freedom has its "costs." Extending this argument, the murderer walking is just the "cost" of Rym's freedom to use nullification for the guy who got caught possessing a joint."
I don't believe you understand the idea of the cost of freedom. To elucidate, every freedom has associated risks or costs. The freedom to speak without restriction comes with the risk of offensive speech and the cost of having to abide it. The freedom of religion comes with the risk of abuses of the moniker and the cost of cults also being free to operate. The freedom to bear arms comes with the risk of arms being used to harm others. The freedom to murder comes with the risk of people being murdered.
In the case of any individual freedom, society has to evaluate whether or not it is worth the associated risk. We in the United States have decided that freedom of speech is worth the risk of harmful speech. We have agreed that freedom to murder is not worth the risk of people being murdered indiscriminately.
The freedom to nullify comes with the risk of bad people escaping punishment. We currently have this freedom, and I feel that it is worth the risk. If society decides that this freedom is not worth this risk, as they have with murder, then they should take that freedom away. Until they do, I have this freedom, and will exercise it as best I can both for my own well-being and for the common good.
In general, I tend to prefer having a freedom and a risk than not having a freedom. I'd rather risk a terrorist attack than lose my freedom to travel or live unsupervised. I'd rather risk hearing offensive speech than lose my right to offend in kind. I'd rather risk the existence of Scientology than lose my right to believe or disbelieve in whatever I so choose.
I agree 100% with Rym's last statement. Unfortuantely, there is a growing percentage of people who do not.
Time and again, people have responded in polls that they favor overturning the 1st Amendment and giving up the freedom of the press. A majority of people don't seem upset at the illegal spying efforts by our government on our citizens or the government being able to detain people without having to charge them or let them see a lawyer or family member. The list goes on and on. Big brother wants to spy on us yet opposes any measure that lets us keep tabs on what they are doing in our name.
Our society is giving up our freedoms one by one in a misguided effort to keep us "safe and free." We'd never stand for another counrty, or terrorist group, imposing these limitations on us yet we impose them on ourselves. And if you dare speak up you are branded a terrorirst sympathizer or "unAmerican."
I have to agree with Rym on his assessment of the importance of jury nullification as a means of insuring freedom. The judicial system exists as a check against the legislature and executive branches. For those of you that were asleep during Civics, checks and balances is the name given to the safeguards within our democracy to prevent it from being compromised by any sort of despotic entity. The idea was that even if one or two of the branches of government were compromised, the third would protect the people.
The first safeguard is a democratically elected congress, who should always vote in the best interest of their entire constituency. Who would vote for someone who constantly votes against their best interests in favor of (pick your least favorite lobby)? Even so, you could bribe every congressman and senator and get your unjust law passed, but will the president sign it? Let's say that the president signs the law, also. In order to finally enforce the law, it has to be tried in a court room. The jury the final layer of protection, since everyone on the jury has to agree that the defendant broke the law and deserves punishment.
The idea that the jury should always uphold the law is a fallacy of accident. Just because a law exists, doesn't mean that it should be enforced.
Could someone describe the process of jury nullification?
A juror chooses to vote "not guilty" even if all of the evidence and court procedure clearly shows that the defendant is in fact guilty of violating the law as written. It's actually a very simple concept. If you agree that someone is guilty, but you disagree that what they did should in fact be illegal, voting "not guilty" exercises your implicit right to nullify by jury.
Could someone describe the process of jury nullification?
A juror chooses to vote "not guilty" even if all of the evidence and court procedure clearly shows that the defendant is in fact guilty of violating the law as written. It's actually a very simple concept. If you agree that someone is guilty, but you disagree that what they did should in fact be illegal, voting "not guilty" exercises your implicit right to nullify by jury.
In other words "There is no doubt whatsoever that dude was selling, buying, and smoking a whole ton of weed. However, the people on the jury all think that weed smoking is AOK. We say not guilty.
Fuck, I hate jury nullification. It makes my life harder. Goddammit, why can't people just do what they're told?
Because sometimes the law is bullshit. You should be happy if there is jury nullification against a law that is unjust.
Wow Scott, I didn't think anyone would take that absolutely literally. The "Why can't people just do what they're told" should have been a dead giveaway.
Fuck, I hate jury nullification. It makes my life harder. Goddammit, why can't people just do what they're told?
Because sometimes the law is bullshit. You should be happy if there is jury nullification against a law that is unjust.
Wow Scott, I didn't think anyone would take that absolutely literally. The "Why can't people just do what they're told" should have been a dead giveaway.
In the past, other lawyers in this forum have expressed that exact opinion in similar terms with no sarcasm.
1) I'm not a lawyer yet. 2) I'll use green next time. 3) Jury nullification is passive aggressive bullshit. While I recognize that people are going to do it anyway, I still don't like it. We have laws for a reason. If people don't like laws the way they are, they should get active in the legislative system and work toward changing them. That said, a lot of people feel like they don't have the power to change the laws they disagree with, and this is an opportunity for them to have that power. I totally understand why they do it, and I would never seriously ask the question.
Jury nullification is passive aggressive bullshit. While I recognize that people are going to do it anyway, I still don't like it.
When aggressive (campaigns to change the laws) fails, and more aggressive (violence) is undesirable, then the last form of aggressive (rules lawyering and using the full extent of the legal power and rights afforded to you as a citizen) is anything but passive. If you look at the world from a game theory perspective, every actor should always act in their own self-interest using the full extent of the tools available to them. It's far from passive to use jury nullification, any moreso than it would be passive to filibuster, or to use the robber in Settlers, or to refuse to trade in Dune, or even to refuse to compromise in Diplomacy.
a lot of people feel like they don't have the power to change the laws they disagree with
I've honestly become almost entirely disillusioned with the current rate at which change can happen. There are far too many laws with which I disagree, and which I expect to be overturned or repealed within a decade or so, but for which I would be required to nullify if at all possible if presented with the opportunity.
If you are lucky, you work your entire life to see one change affected in the legal system. It's designed to be slow so as to prevent tyranny. But damn, it is frustrating sometimes.
The problem is that while trading and compromising are individual choices that everyone should be free to make, jury nullification is effectively 12 people deciding what the laws of an entire society should be. That's where I have a problem with it. There are important cases where someone has been found guilty (or not) in a ridiculous situation that have spurred legislatures to change laws. I think those wake-up calls are important.
I know your feelings on it and I'm not going to try to convince you any different, because you guys are convinced you are right about jury nullification and nothing I say is going to change that. That's fine. I disagree with your position, and I'm letting you know why, but I certainly don't expect anything to change.
because you guys are convinced you are right about jury nullification and nothing I say is going to change that.
I agree with it partly because it's impossible to prevent. What if a juror just pretends to be stupid and votes "not guilty" without any word about nullification or personal morality? How can you possibly differentiate between a stupid juror and a clever one?
Something being impossible to prevent is a poor reason to agree with it. I don't support the formation of any law attempting to limit jury nullification. That would be stupid and tyrannical.
Saying something is bad and saying something is preventable are two different things, and the preventability of something in no way affects whether it is good or bad. It affects whether it is good or bad to let it happen. In this case, if we try to keep it from happening, we completely defeat the purpose of having a jury.
In this case, if we try to keep it from happening, we completely defeat the purpose of having a jury.
Thus, it is an implicit right inherent in any trial-by-jury system. And thus, any actor should use this tool to its fullest whenever it furthers his goals. ^_~
That's not a happy, winky statement, Rym. You just said if something is unpreventable, regardless of whether it is a good or bad thing, then a person should use it as a tool whenever possible. I don't think you have fully considered the full scope of that statement.
EDIT: For instance, if I cheated on a paper and no one turned me in or found me out, that would be the same situation. What you just said basically means that if I can keep anyone official from finding out what I am doing, then I should continue to use the tool of cheating on my papers whenever I can.
I just remembered that when I first read about jury nullification on a local BBS in the mid-90s, I told my mom about it, and she insisted that it was a lie that had probably been put there by communists.
I just remembered that when I first read about jury nullification on a local BBS in the mid-90s, I told my mom about it, and she insisted that it was a lie that had probably been put there by communists.
Thus, it is an implicit right inherent in any trial-by-jury system. And thus, any actor should use this tool to its fullest whenever it furthers his goals. ^_~
I wouldn't say "whenever possible." Rather, it should be kept as an instrument of last resort. Fix things the way they should be fixed (voting and so forth), and when all else fails, fall back to jury nullification.
Comments
"Rym says that every freedom has its "costs." Extending this argument, the murderer walking is just the "cost" of Rym's freedom to use nullification for the guy who got caught possessing a joint."
I don't believe you understand the idea of the cost of freedom. To elucidate, every freedom has associated risks or costs. The freedom to speak without restriction comes with the risk of offensive speech and the cost of having to abide it. The freedom of religion comes with the risk of abuses of the moniker and the cost of cults also being free to operate. The freedom to bear arms comes with the risk of arms being used to harm others. The freedom to murder comes with the risk of people being murdered.
In the case of any individual freedom, society has to evaluate whether or not it is worth the associated risk. We in the United States have decided that freedom of speech is worth the risk of harmful speech. We have agreed that freedom to murder is not worth the risk of people being murdered indiscriminately.
The freedom to nullify comes with the risk of bad people escaping punishment. We currently have this freedom, and I feel that it is worth the risk. If society decides that this freedom is not worth this risk, as they have with murder, then they should take that freedom away. Until they do, I have this freedom, and will exercise it as best I can both for my own well-being and for the common good.
In general, I tend to prefer having a freedom and a risk than not having a freedom. I'd rather risk a terrorist attack than lose my freedom to travel or live unsupervised. I'd rather risk hearing offensive speech than lose my right to offend in kind. I'd rather risk the existence of Scientology than lose my right to believe or disbelieve in whatever I so choose.
Time and again, people have responded in polls that they favor overturning the 1st Amendment and giving up the freedom of the press. A majority of people don't seem upset at the illegal spying efforts by our government on our citizens or the government being able to detain people without having to charge them or let them see a lawyer or family member. The list goes on and on. Big brother wants to spy on us yet opposes any measure that lets us keep tabs on what they are doing in our name.
Our society is giving up our freedoms one by one in a misguided effort to keep us "safe and free." We'd never stand for another counrty, or terrorist group, imposing these limitations on us yet we impose them on ourselves. And if you dare speak up you are branded a terrorirst sympathizer or "unAmerican."
http://www.boasas.com/?c=669
The first safeguard is a democratically elected congress, who should always vote in the best interest of their entire constituency. Who would vote for someone who constantly votes against their best interests in favor of (pick your least favorite lobby)? Even so, you could bribe every congressman and senator and get your unjust law passed, but will the president sign it? Let's say that the president signs the law, also. In order to finally enforce the law, it has to be tried in a court room. The jury the final layer of protection, since everyone on the jury has to agree that the defendant broke the law and deserves punishment.
The idea that the jury should always uphold the law is a fallacy of accident. Just because a law exists, doesn't mean that it should be enforced.
*who has read stranger in a strange land
2) I'll use green next time.
3) Jury nullification is passive aggressive bullshit. While I recognize that people are going to do it anyway, I still don't like it. We have laws for a reason. If people don't like laws the way they are, they should get active in the legislative system and work toward changing them. That said, a lot of people feel like they don't have the power to change the laws they disagree with, and this is an opportunity for them to have that power. I totally understand why they do it, and I would never seriously ask the question.
The problem is that while trading and compromising are individual choices that everyone should be free to make, jury nullification is effectively 12 people deciding what the laws of an entire society should be. That's where I have a problem with it. There are important cases where someone has been found guilty (or not) in a ridiculous situation that have spurred legislatures to change laws. I think those wake-up calls are important.
I know your feelings on it and I'm not going to try to convince you any different, because you guys are convinced you are right about jury nullification and nothing I say is going to change that. That's fine. I disagree with your position, and I'm letting you know why, but I certainly don't expect anything to change.
Saying something is bad and saying something is preventable are two different things, and the preventability of something in no way affects whether it is good or bad. It affects whether it is good or bad to let it happen. In this case, if we try to keep it from happening, we completely defeat the purpose of having a jury.
EDIT: For instance, if I cheated on a paper and no one turned me in or found me out, that would be the same situation. What you just said basically means that if I can keep anyone official from finding out what I am doing, then I should continue to use the tool of cheating on my papers whenever I can.