Monday, August 28, 2006

Patterico Pontifications Takes On Jury Nullification: That Lawyer Dude Comments Set Off Quite The Debate.

Seems my discussion on Patterico's Pontifications here and righthere on That Lawyer Dude, on the rights and obligations of juries to nullify has set off quite the discussion at Patterico's blog.

Patterico took me on (See note 52-57) and then decided that the issue was important enough to blog separately (check it all out here) He had over 90 responses before I left my response.

Here is Patterico's position on Nullification:

"Any officer who decides for himself what the law ought to be, in violation of his oath to tell the truth on the stand, is a “rogue cop” and a criminal.

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?"


And here is my response (I am number 92!! Who knew people cared about jury nullification so much):

"Ah Patterico, I am loving you. Thank you so much for sponsoring this most interesting debate. Over 90 responses. Outstanding.
Ok you posit as follow:

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

Yes I would take the oath. I would mean it when I say it and I would hold to it. I can still nullify under it. Remember there is an instruction (I believe Johnny Cochran spoke about it during his brilliant summation in Simpson. It is known by its Latin name: Falsus in Unum, Falsus in Omnibus. In NY that reads:

If you find that any witness has wilfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.

A verdict that rejects testimony in full because it is false in part is fine with me. Even when other evidence may lead to a diferent verdict. The problem with evidence that is false is that it often in real life casts doubt as to other evidence that might be truthful. Let’s assume that the police officer says that he gave Miranda warnings at 10 am. Lets further assume that there is proof that that a truthful statement was given by the defendant at 10:49am. Further lets assume that it is proven that the Miranda warnings were not given until 11am. Finally assume that the police officer testified to seeing blood in the back seat that matched that of the dead person and said that he thereafter found the murder weapon two days later looking into a hollow tree in the park next to the defendant’s home.

The statement goes out, but the jury would be well within the law and instructions to reject the evidence about the blood and the weapon find, and I would say that if they really find some of the government’s case to be built on lies, the jury would be well within it’s rights to reject the side that argues the testimony that is a lie.

Once again thanks for this very interesting discussion. I wish I could get this type of stuff going on my own blog. It is an important discussion that criminalists have been thinking about a lot since Simpson."

I think the right of the jury to keep the government in check is an important jury right. It is not to be used all the time. I would have no problem with it being used in extreme cases. I believe that testilying by police hurts the criminal justice system far more long term than does any one verdict that allows a guilty person to go free. In the right case it can change the way courts and prosecutors do business. It can change the way certain police departments react as well. I do not think the Simpson jury nullified so much as I think they just didn't know what to beleive so they chose to believe none of what the prosecution offered. It is important to know however that the verdict in Simpson changed the face of how evidence is handled in LA and in many other parts of the Nation, and that is good for everyone, especially the innocent.

What a fun and interesting exchange.
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