Patterico opposes jury nullification but recently proposed something even worse: abolishing the rules of evidence and letting both parties present whatever crazy “evidence” they want, be it relevant, irrelevant, racist, or whatever. Inviting juries to form conclusions based on whatever they want would cause far more judicial chaos than anything the FIJA crowd has proposed. However, I have come up with a proposal that would help the next John Peter Zenger without also helping the next O.J.: let the defendant decide whether or not to put the law on trial, and absolutely forbid the jury from nullifying, under pain of contempt, if he does not. FIJA purists may object that the jury’s “right” should not be subject to the whim of the parties to the case. Hogwash. The defendant is the one with a right to a fair trial, not the jury; they have no “right” to be there at all.
Here’s how my proposal would work. Anyone charged with a crime would have three options (other than pleading guilty, of course):
- Plead not guilty.
- Plead not guilty by reason of nullification.
- Plead not guilty by reason of factual innocence and nullification.
Option #1 would result in a trial under today’s rules, except that the jury would be advised that the defendant has waived his right to challenge the law in question. Option #2 would amount to a guilty plea on the underlying offense, with the jury empaneled only to hear challenges to the law itself, or to its application to this particular defendant under these particular circumstances. Jury acquittals would now be appealable under a rigorous “abuse of discretion” standard, with convictions subject to de novo review. Option #3 would be available only when a challenge to the law and the factual allegations can be made in good faith, e.g., a person charged with prostitution could argue “I never hired a prostitute, and prostitution shouldn’t be a crime even if I did,” but a medical marijuana user could not argue “I never had a joint, and the joint that cop caught me with was medically necessary” would not. With both legal and factual issues in play, jury verdicts would now be appealable under a preponderance of evidence standard. This lesser standard would also give the real John Peter Zengers of the world an incentive to use Option #2 rather than #3 when the real issue is just with the law, and not whether the alleged conduct really took place.
Any takers?