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Jury Nullification and Blocked Defenses

April 22nd, 2008

Over at A Stitch in Haste, Kip inquires about a bigoted application of jury nullification: “Should a nullifier be entitled to disregard [a prohibition on certain defenses] and vote to acquit?”

So I put it again to the nullifiers: Assume a juror, who acted in good faith and made no attempt to lie her way onto the jury, simply believes that “panic” is indeed an entirely proper reaction when “harassed” by a “pervert” and that, A.B. 1160 and jury instructions notwithstanding, it’s just not right for someone to go to jail for killing an uppity queer who “panicked” him.

If the power of a juror is absolute and extends not just to reviewing the facts but also the law, then is it not also perfectly appropriate, even noble, for one homophobe to acquit another homophobe?

Or do your “higher principles” regarding nullification only apply to smoking pot?

Oh, how I love a good pun!

What the advocates of nullification (myself, included) suggest is that it be used to prevent injustices from occurring at the hands of the State. There is probably not a perfect solution; any system implemented by imperfect men is bound to have its own unique imperfections. As the programmers might tell you, “Garbage in, garbage out,” the system can not be perfected by adhering to the imperfect rules which govern it.

Jury nullification as advanced by the libertarian, is supposed to prevent false positives, viz. convicting people for non-crimes. I have often heard simplified, a principle of any proper justice system: “It is better to let 10 guilty men walk free, than to convict a single innocent man.”

To the extent that a justice system succeeds at occasionally acquitting the guilty in favor of never convicting the innocent, there will inevitably be “not guilty” verdicts handed down to someone who is probably truly guilty of a crime against person or property. This may be due to the standards of evidence, legal or procedural technicalities, etc. Sometimes, a guilty man will go free because of a juror’s bigotry. The latter is the special case of jury nullification, where a juror takes it upon himself to review the law (not merely the facts) and to render judgment in accordance with his own beliefs.

What we need to ask ourselves is whether the end sought by nullification is justified in and of itself?

In the case to which Kip refers, above, clearly the end sought is not justified. Decrying this act of “nullification” is not inconsistent with a general libertarian tendency to favor jury nullification. I would argue that a juror swayed by bigotry is in fact morally wrong when he votes in such a manner as to acquit a guilty party, an opinion determined by the morality of the end he seeks and not by the means through which he achieves it.

The mere act of jury nullification is neither right, nor wrong, in and of itself. It is a means towards an end which must be evaluated independently. I advocate jury nullification as a means to an end—its merits should be judged accordingly, and its opponents should resist the temptation to judge it as an end in itself.


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no third solution

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