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[bryant]

South Dakota is about to vote on a constitutional amendment permitting jury nullification. This means that juries could vote not guilty on the grounds that the relevant law was unfair or otherwise misguided. The supporters have a site, and the South Dakota State Bar has this to say.

The actual amendment would rewrite Article VI, Section 7 of the South Dakota Constitution as follows. The changes are marked in italics.

In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and the cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf; and to a speedy and public trial by an impartial jury of the county and district in which the offense is alleged to have been committed; and to argue the merits, validity, and applicability of the law, including the sentencing laws.

The supporters don't actually do a very good job addressing the arguments against jury nullification; there is, in fact, an existing mechanism for allowing citizens input into the law, and it is reasonable to ask whether or not 12 jurors selected at random should have the ability to override a majority vote of the entire populace. I think the answer may be yes, but I dislike the arrogance of claiming that the question is irrelevant. "Common sense isn't."

And the lawyers of South Dakota are not universally evil people who rely on scare tactics. Claiming that "they are insulting your intelligence" is the worst kind of populist rhetoric. Sigh.

So the impression I get is that South Dakotans in favor of jury nullification are not in fact capable of constructing or analyzing legal arguments, or logical arguments of any kind. This does not convince me that it's a good idea to let South Dakotan juries decide cases based on their opinions of the laws involved. Sorry, guys; if you can't move beyond populist rhetoric, you shouldn't be trusted with more complex decisions on a jury.

Comments

[bryant]

Is jury nullification in the Constitution? Not as far as I've been able to tell. Pro-nullification groups say it is, but they cite specific judicial instructions rather than citing the Constitution itself. These instructions, and the private comments of the Founding Fathers, do not constitute Constitutional precedent.

So in part it's an interpretive matter, akin to the right to bear arms.

I dunno. I can't find any anti-nullification pages. I wish the pro-nullification people would have the courtesy to link to the opposing views. There's a wealth of interesting information out there... here's a fun one, in which jury nullification was one of the grounds on which a judge overturned a conviction of anti-choice protesters. Oddly, nobody ever mentions this when talking about how jury nullification is a panacea for bad laws. It's a tool; if it was a wide-spread doctrine it would hurt as well as heal.

Can you imagine a jury in the Brandon Teena case using jury nullification to free the people who beat Brandon to death? I can.

I sat on a jury a couple of years ago, and I had to think about jury nullification. During the jury seating, the judge asked me "Can you commit to making your decision based solely on the law and the evidence presented during the trial?" Pretty interesting question. Not "Do you agree with the law," but could I make a decision based on what the law was? I said yes; my personal views don't prevent me from coming to a conclusion within any given logical framework. Given that answer, I couldn't ethically decide based on my view of the law.

Parenthetically, I'd have thought a long-haired computer geek from Harvard didn't stand a chance of winding up on a jury either. I was dead wrong.

[foxmagic.livejournal.com]

I did some research -- you're right that jury nullification isn't in the Constitution, but it has been upheld by at least two US Appeals courts. There's a web page (http://www.fija.org/juror-handbook.htm) with some details.

I can see both sides, but I wouldn't like to be on a jury where I'm told that I have to vote for capital punishment if a murder suspect is found guilty.

[bryant]

Ah, but what's been upheld?

I don't know from that page whether the Court of Appeals was upholding a specific state's rules on jury trials, a federal principle, or what. All I know is that every jury nullification page I read cites those two cases, using the exact same words. I kind of suspect that few of the people writing those pages went out and did the legal research to discover the full context of the words.

I mean, I'm pro-nullification. I just don't find most pro-nullification pages to be very admirable.