More on the Runaway Jury Amendment
In response to Patterico’s thread on fully informed runaway juries, Michael Williams likens the debate to the one on guns. The basis of this comparison, as I understand it, is that juries are like guns in that both of them are … er … um …. illegal in most of Europe. Yeah, that’s it. Or something like that. Whatever.
Anywayz, I think I may have come up with a compromise both sides can live with. Rather than just have juries render a single, general verdict of “guilty” or “not guilty,” why not have them also render special verdicts on each element of the crime charged? Jurors could then be instructed to rule on “just the facts” when determining whether or not each element was met (e.g., in a burglarly case, whether he really broke into a house, whether he really intended to commit a felony therein, whether it really took place at night, etc.), but would also be advised that they may vote their conscience on the final, general verdict and find the defendant “not guilty” if they thought all the elements of the crime were technically met but the defendant should nevertheless not be convicted of a crime. Special verdicts would be unappealable in criminal cases, and appealable in civil ones only to the extent they can be shown to be “clearly erroneous,” a very exacting standard. General verdicts, by contrast, could be appealed, but only if and to the extent that they were legally inconsistent with the special verdicts rendered by the same jury (or, in the case of civil trials, with whichever of those elements also survived the appeal).
Any takers?
July 29th, 2005 at 7:59 pm
Or they could just require each jury member to write an opinion :)
July 29th, 2005 at 9:30 pm
I made the comparison between guns and jury nullification because the arguments against both sounded remarkably similar.
I like your idea in theory, but it sounds like it might be too complicated to implement. How would you decide which facts would merit a special verdict?
July 29th, 2005 at 10:34 pm
On jury nullification, if a jury is morally obligated to ignore the law in certain circumstances in order to find not guilty would not a jury likewise be obligated in some circumstances to ignore the law and find guilty?
I am sure that jury nullification occurs but I don’t see how it can be considered as generally defensible as a tool for justice without giving approval for the reverse.
July 29th, 2005 at 10:41 pm
I would require each element of the crime to be the subject of a special verdict. Then, the general verdict of acquittal or conviction would be reviewed purely as a matter of law.
This would help to rein in crazy jury nullifications, but it would also help rein in inappropriate convictions, as well. Suppose, for example, that someone is on trial for common law burglary. At common law, burglary is the unlawful breaking and entering of the dwelling of another at night with the intent to commit a felony therein. The list of potential verdicts would look like this:
Now suppose that the jury is 100% convinced that the defendant had no lawful basis for breaking in, that he did in fact break in, that he entered with the intent to commit a felony therein, and that someone else lived there. Reasonable doubt exists only as to #6; it may not have been night-time. Assume the jury thinks that’s a really stupid rule (it is, but that’s neither here nor there). Assume further that the jury far too pissed off at the guy to let him walk on that technicality. Here’s how it would play out under the current system (as I understand it), and under mine:
Current System:
Jury returns a guilty verdict. Defendant’s attorney smells the above-identified rat and appeals on the grounds that it wasn’t really night. The Court of Appeal reviews all the evidence on the record, concludes that there was evidence there from which a jury could find beyond a reasonable doubt that the crime occurred at night. Judgment affirmed.
My System:
Jury returns a series of special verdicts: Yes, Yes, Yes, Yes, Yes and No (where “yes” means “proven beyond a reasonable doubt and “no” means “not proven beyond a reasonable doubt”), followed by a general verdict of guilty. Defense appeals, noting the inconsistency between the jury’s general finding of guilt and its specific finding that one of the elements required for guilt was not proved. Judgment reversed.
July 29th, 2005 at 11:39 pm
Only a lawyer could write that. Us non-lawyers want it simple, complete and just, thank you.
Failing that how about a truce: the jury gets all the facts, not just those the court thinks they should have, and the jurors decide guilt and any special circumstances.
But this all breaks down when the court thanks the jury for the decision on what they thought was a minor charge, then throws away the key.
So, I’ve got another compromise: The defendant in a 3 strikes trial gets to pick: a) the jury is told there are no strikes (even though there are); or b) the jury is told about the strikes, and exactly what they are for. That makes it the defendant’s fault if they do all day for $20 of crack.
July 29th, 2005 at 11:55 pm
Well, gee whiz. It is, after all, a proposal for how the legal system might be made to work. One might expect lawyers to know something about that. Do you also object to medical treatments only a doctor would come up with?
My proposal is no less simple than what we have now, except that it requires the jury to document the steps in the thought process it is supposedly going through now.
That may be acceptable, depending on what you mean by “all the facts.” Do you mean all the facts that might conceivably sway a jury, or just the facts that should? I’m OK with telling the jury that so-and-so is a three striker (don’t they do that already?) but I can’t see too many defense lawyers agreeing to that principle if it were applied with any real consistency (e.g., if prosecutors were allowed to inform the jury that prisoners get their time cut in half for good behavior, so if they really want the S.O.B. to stay in prison for 10 years, they’d better sentence him to 20).
July 30th, 2005 at 1:01 am
I was half-facetious when I wrote that. The problem is that lawyers wnat a system that is fully-defined. This leads to complexity as the world resists definition. One can take this search for definition to absurd lengths (and we may already do so), seeking that last tweak that will solve all problems.
This is impossible of course, which is why we have courts and appeals. But nullification, used sparingly, can also play a role. Perhaps your approach would work, but it is so complex only a jury of lawyers woule ever get it right (and I bet you they’d fight first).
I would prefer the following charge, which puts a clear responsibility on the jury and limits the use, while avoiding the dishonesty that accompanies back-door nullification:
July 30th, 2005 at 2:38 am
Way off topic, and bizarre, but abortion rights and a story I just read put a scenario in my head that I am curious about. Would it be illegal (extortion, whatever) for a woman to demand a payment from ‘the father’ to not have the fetus aborted? [Probably not, see Cal. Penal Code §§ 518, 519. - X.] Can you be prosecuted for ‘requesting’ money to not do something that is within your legal rights to do? [Generally, no.] Couldn’t a woman disguise such a demand as concern for her economic wellbeing as a new mother? [Sure, why not - but I doubt she'd have to.] Do I have too much time on my hands? [No comment.]
July 30th, 2005 at 7:47 am
I don’t know, doing away with the power of the general verdict for the jury in a criminal trial seems to eliminate the one true value of the jury system. As I’ve remarked on Patterico’s blog, the right to a jury trial isn’t considered fundamental because jury’s a better finders of fact.
Maybe having a system where jury nullification exists is a bad one. However, while laws may be generally written and “enforced” by lawyers, it is the people through the jury who actually apply the law to facts, that is in someways disconcerting, but it can also be the most reassuring part of our legal system.
Another complaint that has come up, is with the aghastness at the possibility that a jury could convict even where there is no crime. This also does not concern me as much as the protestors think it ought. There case is often that there is the great injustice where an individual is found guilty despite “technical” innocence. One thing about the American legal system, is that it is forbidden to have a common law of crimes (by the ex post facto clause), however, if I remember correctly, the same is no true of our progenitors the English or the Scottish. In some ways, the jury helps to provide this criminal common law. But I haven’t thought to much about this, so I do reserve the right to change my mind (well I always reserve that right, but here more than usual.)
The legal system, may be run by lawyers, but, the legal system is for the benefit of us all, not just lawyers.
July 30th, 2005 at 9:01 am
I don’t think anyone is disputing that. Everyone benefits from having the law uniform and predictable. The only difference between lawyers and nonlawyers in this regard is that lawyers are more likely to be aware of it.
July 30th, 2005 at 9:44 am
Xrlq: Thanks for the reply, and especially for the ending “no comment”.
Greatly appreciated.
July 30th, 2005 at 1:01 pm
I find the concerns over the potential for juries to return unjustified guilty verdicts — “the prosecutor didn’t prove every element of the crime beyond a reasonable doubt, but the accused is a real shitbag, so we’ll convict anyway” — to be something of a canard.
In the first place, convictions are reviewable and reversible. If a jury’s guilty verdict is clearly erroneous — totally inconsistent with the evidence presented — it can be set aside. Hell, a trial judge can himself even enter a verdict JNOV, if he thinks the jury went totally off the rails.
In the second place, isn’t this a case, first and foremost, of prosecutorial discretion gone awry? If a prosecutor doesn’t have sufficient evidence to prove every element of a crime beyond a reasonable doubt, and sustain a conviction, doesn’t he have an obligation not to put that charge before a jury in the first place?
July 30th, 2005 at 1:21 pm
It’s not a canard at all. To those who take FIJA rhetoric seriously, it’s not clear why jury verdicts should ever be reviewable. After all, if juries had an actual right to rule on the law - and not merely the ability to do so as a side-effect of the double-jeopardy rule - who are those appointed hacks in robes to second-guess such rulings?
Yes, a jury’s conviction can be set aside if its factual determinations are clearly erroneous, but “clearly erroneous” is an extremely difficult standard to meet. Besides, a jury is not supposed to convict unless it actually believes each element has been proven beyond a reasonable doubt, but if it ignores that rule, its illegal verdict will stand unless the Court of Appeal not only finds that the jury didn’t really find that proof beyond a reasonable doubt, but that the evidence was so thing that it could not have so found.
Speaking of canards, bringing up prosecutorial discretion in a debate on jury nullification is a canard indeed. We can discuss prosecutorial discretion, or lack thereof, in a separate thread, but it has nothing to do with the issue at hand.
July 30th, 2005 at 1:27 pm
I disagree, Xrlq. Discretion, and who gets to exercise it, is at the very heart of the matter. We do not overly concern ourselves with the discretionary passage of laws, the discretionary enforcement of laws, the discretionary prosecution of laws, and the discretionary interpretation and construction of laws. All of that discretion can be and is (routinely) abused. And yet we’re supposed to rage against the idea of the citizenry having some discretion over the laws, other than at the ballot box? Give me a break.
July 30th, 2005 at 1:30 pm
And, of course, the answer to your question about why guilty verdicts are reviewable but acquittals are not is, simply, that guilty verdicts result in criminal penalties, which we ought not subject someone to without some additional procedural safeguards. Duh.
July 30th, 2005 at 1:33 pm
One has nothing to do with the other. If you think prosecutorial discretion is frequently abused, then you should be pushing to change that, not to use it as an excuse to export abuse of discretion to other areas of life as well. At least one prosecutor’s discretion doesn’t bar another prosecutor from doing the right thing later, assuming the statute of limitations hasn’t passed in the interim. I probably wouldn’t mind jury nullifications that much of it weren’t for the double-jeopardy rule.
“Duh” is right.
August 1st, 2005 at 12:18 pm
I’m disputing that. “Uniform and predictable” sounds like zero-tolerence, and look at how well that has turned out. I do think that prosecutorial discretion is frequently abused, and jury nullification is but one of the ways to fight that. Another method that I used to fight it to campaign to remove the complexity from the criminal code. Another method is to campaign to liberalize the interpretations of the Bill of Rights and return some of the rights to the people that have been taken in the last century or so. None of this is happening in a vaccuum.
I like prosecutorial discretion. I believe a prosecutor has a duty to say, “this case is insane, we should drop it.” I don’t think that happens often enough, and the jury is supposed to be another line of defense, to say, “it is insane to send this guy to jail because he was driving a car and the guy in the backseat had a mirror with cocaine residue on it in his backpack.” There are a whole gaggle of people who were supposed to kill that case long before then, and if it gets to the jury, the jury is supposed to be able to toss that case out on its ear.
August 4th, 2005 at 10:30 am
My mother sat on a jury which used jury nullifaction, much to the annoyance of the judge. The defendant had come out of a store to see party A beating the living daylights out of party B, who was simply lying on the ground trying to cover his head and neck. The defendant tried to pull party A off of party B, doing absolutely no damage to party A in the process. It turned out that A was a store manager chasing and capturing a shoplifter (B). The manager got the bystander/offerer-of-aid-to-party-B charged with assault and battery. While technically true, it wasn’t like the defendant did this as a regular thing, and it could certainly be argued that it was necessary to prevent severe physical harm coming to B, so the jury happily found him not guilty. Thy figured he had not broken the intent of the law, even he had the letter.
Of course it didn’t help that almost all of them had sat on a trial earlier that week involving the same store, prosecuting a shoplifter who bought the tequila but stole the lemon, which showed up in evidence at the trial in the guise of a fuzzy grey/green blob in a baggie. (6 months in the evidence locker without refrigeration will do that to produce….) The trial took 2 days, which the jury felt was an incredible waste of everyone’s time and taxpayer money given the offense in question (the lemon was worth maybe 15 cents at the time). (They did find the shoplifter guilty.) By the time they got to the assault trial they were just a little biased against the store. Or as my mother put it after both trials, “I’m never setting foot in there again, no matter what.”
August 4th, 2005 at 10:54 am
That doesn’t sound like a jury nullification at all. I’d be very surprised if it were legal in any state for a shop owner to beat the crap out of somebody for stealing, or illegal for anyone to come to the victim’s aid.
August 6th, 2005 at 6:12 am
*boggle*
Um.
How can that *not* be Jury Nullification?
Defendant *did* lay hands on the shopkeeper, and through physical force, and the threat of more - kept him away from the shoplifter.
According to you and Patterico - the jury is negligant. They were charged with finding if he was guilty of the A&B - which apparently he was - and they aquitted.
And I think you didn’t read through the story - the A&B wasn’t against the SHOPKEEPER, it was against a 3rd party who stopped the shopkeeper from beating the shoplifter. So… Again, in your system, where the jury *only* decides on the issues of law presented to them by a judge - he’s guilty, see you in 3 to 5.
But the jury said “what? are you nuts?” and aquitted. Good for them. Because that’s a perfect case in point that shows that your theoretical construct of incredibly smart prosecutors, police, and judges falls apart - *somebody* signed off on that prosecution. On many levels.
So, to take a good case that proves WHY “nullification” is built into the system (And why trying to stack it/make a jury swear it’s not is abhorrent) and not grasp that it is nullification.. Um, exactly what are you arguing again?
August 6th, 2005 at 10:36 am
Indeed, but he also did so under circumstances which, if accurately described by LibraryGryffon, probably would have constituted lawful defense of another. To the extent the defendant did nothing illegal (and protecting someone else from getting beaten senseless is generally not illegal), there was nothing for the jury to nullify.
I don’t know where you got the idea I didn’t read through the story. I did, and am fully aware of who was beating whom, and that it was irrelevant. Maybe there is one oddball state out there somewhere whose laws say anyone who is a victim of a theft has a legal right to beat the thief to a bloody pulp, and that anyone who interferes with that right, even innocently, is guilty of a crime himself. Maybe, but I highly doubt it. More likely, the prosecutor thought the shopkeeper was merely attempting to detain the thief, and that the defendant was an accomplice attempting to help the thief get away, while the jury thought the shoplifter was being unnecessarily rough with the thief, and the defendant was an innocent bystander who simply encountered one guy waling on another and intervened on behalf of the person he reasonably - albeit mistakenly - believed to be the victim.
August 7th, 2005 at 7:33 am
“I don’t know where you got the idea I didn’t read through the story.”
From your comment “… if it were legal in any state for a shop owner …” Reading that, it sounded like you were confused as to who the defendant was (and a friend reading it also commented on that). OK, so we’re on the same page.
So then, the question would have to be, what was the charge to the jury? Were they instructed as you suggest, on that? Based on what LibraryGryffon relates, I don’t think that was the case.
LG: “While technically true, it wasn’t like the defendant did this as a regular thing, and it could certainly be argued that it was necessary to prevent severe physical harm coming to B, so the jury happily found him not guilty. Thy figured he had not broken the intent of the law, even he had the letter.”
So, barring new information - they were instructed what A&B was, determined the defendant *was* guilty of A&B, and aquitted him.
Which leads us to the other comment thread (And I’ll just comment here on that): you said: “I don’t see how you get from requiring juries to rule on facts alone to NOT allowing juries to function at all. Whether a defendant asserts his right to a jury trial or opts for a bench trial instead, the issues before the court are exactly the same; the only difference being who decides, and not what is decided.”
Because my question to you - and it applies in this case as well - if you and Patterico are correct, let’s take your worldview as a given - Why are juries *mandated*? Why is that an ironclad protection? Given your view, there is no reason to have a jury. Take this case as an example - the jury returned the “wrong” verdict. But I would say, overall, justice was served. Which wouldn’t have happened, had there not been a jury. Judge would have said, yep, that’s A&B, guilty, eh, maybe we’ll go easy on you in sentancing.
“But if the problem is with the jury’s attitude, or that 12 guys who can’t see past their noses think “it ain’t fair,” then that’s a pretty lousy reason to let any individual criminal go free while others just like him do hard time with no recourse.”
Now, on this, we fully agree. The concept of Jury Nullification does worry me, due to well, who I’ve met when I reported for jury duty. I’m not saying that that concept will always lead to more justice, or better decisions. Sure, it *is* the legislature’s JOB to do these things.
But let’s remember what we’re discussing. The governmental framework for a bunch of guys paranoid about a controlling government. Checks. Balances. The only government of it’s time of the people, by the people, derided by the “experts” of the time as completely unworkable. (and has outlived all their systems). Juries are there, in case the legislature hasn’t done it’s job well, or the prosecutor hasn’t done it’s job well, or is doing it maliciously, or just ignorantly.
The reason that juries are mandated as “peers” is exactly because sometimes the legislature *doesn’t* do it’s job. Why was the NJ SC not impeached after the Torricelli/Lautenberg abomination? They weren’t even IMPEACHED, much less removed. Nor was their any attempt to impeach them. Which is the legislature’s job. Full Stop. Which failed. (It’s the most telling case where there was an utter failure of the legislature to act where they were mandated to).
So, extrapolate that to the law, and the fact, as much as it’s a pain, that it’s impossible to cover all the bases. So rather than let the Priesthood of Lawyers be the deciding factor - juries, average people (well, back in the day, they did presume they’d be landowning citizens with a vested interest in the best for the society, and that might have fallen down, just a bit) are the decision makers. Which I read, as just part of the deal, how is the law.
Attempting to remove that (by forcing oaths), however logical, and quite sensible from a lawyer’s perspective, is an abrogation of that entire attempt. Again, I understand the desire to be the gatekeepers, which is what you’re arguing. (really, it is). Much as the Church preferred to translate the Bible for the people, and allow their people to interpret for them. That’s what I see your argument as. And it’s perfectly logical, from a lawyer’s perspective.
Which is why I think juries *should* be allowed, and encouraged to consider the law as part of their decision. Like everything else, it might not be easy, might not be good all the time, has it’s downsides, sure. But IMO, the alternative (Which we’re getting closer and closer to) is worse.
Sorry about the confusion as to the job, I think I’d mixed you and Spoons up, didn’t he just jump into the prosecutorial ring?
August 7th, 2005 at 12:18 pm
That’s the question - I frankly have a hard time taking LibraryGriffon’s story at face value. If his/her story is right, I can scarcely imagine what the jury instructions must have been. That it is illegal to use force in defense of another? That aggrieved shopkeepers have a legal right to pummel the crap out of someone who has ripped them off, and that anyone who comes to the aid of the shoplifter is a criminal, even if the intervening party doesn’t know he’s a shoplifter? It just doesn’t add up.
Speaking purely hypothetically, if the judge really did instruct the jury that it must find the defendant guilty for using reasonable force to defend a party that he reasonably but mistakenly believed to be innocent, and which he reasonably and accurately believed to be in danger of serious bodily injury, then I don’t fault the jury for refusing to follow those idiotic instructions. I would also hope that a court of appeal would have little trouble reaching the same result if the jury had followed such patently illegal, and possibly unconstitutional instructions. I just don’t believe that’s what happened.
I agree that the New Jersey Supreme “Court” should have been impeached, as should its Florida counterpart for its similar antics two years earlier. However, I don’t see what a jury of peers has to do with it. The reason the NJ Legislature didn’t do anything about it is because the NJ Legislature is as partisan and as corrupt as that state’s courts are. I don’t see any reason to think the general population of that state is any less partisan than its government, however. If NJ voters had been all that upset about this crooked ruling, they could have registered their disapproval at the ballot box by electing Douglas Forrester. Instead, they effectively ratified the ruling, and Lautenberg won handily.
Yes, Spoons recently became a prosecutor. No apology needed for mixing us up. If you’re going to confuse me with anybody, you could do a lot worse than to confuse me with Spoons.
August 8th, 2005 at 11:24 am
Sorry, didn’t get a chance to look in over the weekend.
My understanding from what my mother said (please remember this was 30 years ago), was that if they had listened to what the judge told them in his instructions, there was no way they should have not found the bystander/giver-of-aid guilty. The impression of the jury was that the judge expected them to return a guilty verdict. He acted (or so I am told) very annoyed that they returned an innocent verdict. (And, yes, the jury did feel that the only person who should have even been considered for an A&B charge in the whole affair was the store manager.) I don’t know if the fact that this happened in Ann Arbor, a university town, has anything to do with it.
I’ve only sat on one jury myself, a malpractice trial, and it was obvious by halfway through the plaintiff’s first expert witness that it was a defendant’s verdict, and blatantly obvious by the end of the second expert witness. Note to those prosecuting malpractice cases: it makes a better impression on the jury if your expert witnesses agree on what the malpractice was!