Jurors’ Moral Duty



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.

Judge Alex Kozinski:

...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.

David Friedman:

...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

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