Jurors’ Moral Duty
By Mary Theroux • Thursday December 23, 2010 11:38 AM PDT • 14 Comments
Panelists David Friedman and Judge Alex Kozinski had a lively exchange in response to a question about the doctrine of jury nullification during the Q&A portion of our recent Independent Policy Forum, “Is U.S. Justice Broken? Overcoming Government Legal Failure“, based on our book, The Pursuit of Justice: Law and Economics of Legal Institutions, edited by Edward López.
...juries do not have a right to disregard the law. In fact, juries are sworn to apply the law. If they can’t do that or won’t do that–and you would not want to be before a jury that is lawless. ... It’s an abomination. It’s a crime. It should not be allowed to happen. The juries should be told in no uncertain terms that if they can’t apply the law as instructed by the judge, they ought to get off.
...as a proposition in moral philosophy it seems to me clear that if I’m on a jury and someone is charged for something that I believe ought not to be a crime that my moral obligation is to acquit.
Judge Kozinski:
If you live in a moral society and you participate in the processes of government, in the processes of being members of society, then I think you have a moral obligation to adhere by those rules just like you have a moral obligation to abide by the law.
David Friedman:
I don’t think I have a moral obligation to abide by the law when the law is wrong. I may have a moral obligation to violate it, but this could be a very long argument.
To which David Theroux added:
It’s a natural law argument, and that is the point of nullification. The nullification argument is that you can’t just unilaterally declare that people can be licensed to do whatever they want to anybody else. It’s that there is some standard of the natural law tradition that you are judging the current claim of legal statute as legitimate or not, and that was part of the common law tradition...
You can watch the exchange towards the end of Part 5 of the video of the forum, here.
Meanwhile, potential jurors in Missoula, MT, acted as Judge Kozinski said they ought, and refused to agree to uphold the law in a recent drug case. As the defense attorney noted:
Public opinion, as revealed by the reaction of a substantial portion of the members of the jury called to try the charges on Dec. 16, 2010, is not supportive of the state’s marijuana law and appeared to prevent any conviction from being obtained simply because an unbiased jury did not appear available under any circumstances.
Concluding that he couldn’t seat a jury, the judge called a recess, during which the defense attorney and district attorney worked out a deal, and the case was dismissed.
Is mutiny the new nullification?
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HT: Ken Barnes
Tags: American History, Civil Liberties, Civil Society, Constitution, Criminal Justice, Drugs, Law, Liberty, Morality, Natural Law, Personal Liberty, Philosophy, Police, Power, Property Rights 
I have always subscribed to the school of thought, that just because it is the law, does not make it right. Our laws are loaded with things that are wrong. Things that are made illegal because of a fear of what a person might do. This is my biggest issue. It’s illegal to carry a firearm in a public place. Why? Because the law believes I might use it to rob or murder. It’s illegal to have too much to drink, and fall asleep in your car, rather than drive home. Even on private property. Why? Because the law says that you might drive on the streets and injure or kill someone. So we will arrest you now, and charge you with DUI before you actually do drive drunk. We have gotten miles away from the spirit of laws, and taken a stance that you WILL do something illegal, even though you are not doing it right now. So why wait for someone to violate what the spirit of the law is, when we can get ahead of it, and arrest them now? Isn’t that what responsible government is? These are just two examples of many many more. If lawmakers and political officials judged themselves with the same yard stick they judge society, we would need to arrest them all, and charge them with ethics violations, and financial mismanagement of tax payer dollars. Got to get ahead of them, before they actually rob lie and subvert the constitution right?
Shawn | Dec 24, 2010 | Reply
When I was called for jury duty, I added this statement to my questionnaire:
“I might disregard the judge’s instructions on the law and instead exercise my right of jury nullification and vote to acquit if I determined that the law was unjust, immoral, or tyrannical.”
Porkulus | Dec 25, 2010 | Reply
I feel that much of a juror’s right to nullify comes from the fact that s/he is FORCED by law to at least make himself available for jury duty.
Once the court has DRAFTED an otherwise not-necessarily willing juror, the court must take what it gets. The juror is present in COMPLIANCE with (a) law, so must be presumed to be law-abiding. To further impose the duty of APPLYING (another) law, which the juror may perfectly well oppose, is simply more of the injustice that is already involved in drafting jurors.
Voir dire proceedings that I have taken part in have as much as ASKED jurors whether they might nullify, and if I admit that I would, I am rejected for the case (and probably jury duty generally).
N. Joseph Potts | Dec 28, 2010 | Reply
I think it all comes down to whom one thinks should be the ultimate authority in regard to matters of justice and morality: the individual or the state. I’m with the individual.
steven | Dec 28, 2010 | Reply
You can always have a mental reservation. And if they ask about whether you have a mental reservation, you can have a mental reservation about your answer, etc.
Robert | Dec 28, 2010 | Reply
The right of jury nullification has been weakly established since the Zenger case.
However, since judges willfully violate the law, if I am nominated for a jury, I’m going to lie my ass off and then vote to acquit.
Dan | Dec 28, 2010 | Reply
Ask the judge what he thinks about the jury nullification regarding run-away slaves during the slavery years in the US when juries refused to convict run-away slaves under the law.
jim | Dec 28, 2010 | Reply
The first Supreme Court Chief Justice, John Jay, settled this a long time ago. Jay ruled that the Constitution says you are to be tried by a jury of your peers. The jury are the peers. Therefore the jury may ignore a judge’s instructions and rule as they see fit. The constitution has never been amended on this point and that means that you may ignore a judge’s instructions. John Jay was my great great great great great grandfather.
John Wurts | Dec 29, 2010 | Reply
Why would the Founders have bothered to include trial by jury in the Bill of Rights, if not to preserve the same protection against the law’s abuses that a jury in their own time had risked imprisonment to give William Penn?
But a word of warning: judges can and do throw people off juries for attempting to nullify, if they make the mistake of saying out loud that they’re doing so. So if you have the opportunity, just keep quiet and say you didn’t find the prosecution’s evidence convincing.
John David Galt | Dec 29, 2010 | Reply
The Founders, as it has been pointed out by more than one commenter, did settle this a long time ago. However, it does not surprise me that someone paid by the government would so strenuously argue in favor of expanded government power over the rights of individuals. It’s a simple matter of a conflict of interest and is certainly understandable (albeit still wrong).
I hope the judge is at some point willing and able to free himself of this burden by getting an honest job outside of government. It must be difficult to be in a position of having to arguing to preserve one’s income instead of arguing to preserve one’s liberty.
Kirsten | Jan 2, 2011 | Reply