Comments on: Is Jury Nullification Libertarian?

By: Trent McBride

Trent McBride — Fri, 02 Mar 2007 17:50:20 +0000

The last few comments remind me to mention Clay Conrad’s excellect “Jury Nullification”. It was a good attempt to answer the empirical questions, and the answer was that, historically, jury nullification has served justice rather than inhibited it.

By: markm

markm — Fri, 02 Mar 2007 13:32:52 +0000

The worst of jury nullification: "the jury thinks Joe is guilty of lynching blacks, but we don't think lynching blacks should be illegal, so we are going to let Joe go."

It's happened many times, although thankfully a long time in the past. However, I don't see any way that it could have been prevented at that time and place. It's like gun control: if the jury is willing to ignore the laws against murder, they're not going to obey a law against nullification...

By: Brandon Berg

Brandon Berg — Fri, 02 Mar 2007 08:42:22 +0000

This is another illustration of the policy/procedure distinction. Jury nullification isn't inherently liberal or illiberal, because it's a procedural issue, not a policy issue. Whether or not it results in more liberal policy outcomes is an empirical question. And I have no idea what the answer is.

One factor that mitigates the abuse of jury nullification is appeal. Don't these absurd awards that we hear about usually come way down on appeal? And in criminal trials, I suspect that if someone were convicted with blatant disgregard for the law, the conviction would probably be overturned on appeal. On the other hand, the proscription against double jeopardy means that an acquittal can never be overturned.

There is one way in which jury nullification can cause an irrevocable miscarriage of justice. In a criminal trial, a jury can refuse to convict the perpetrator of a crime against an unpopular target. I'd expect this to happen in union violence cases, for example.

By: Allan Ames

Allan Ames — Thu, 01 Mar 2007 20:41:24 +0000

The Founding Fathers recognized that all institutions can wander off
the straight and narrow and gave us jury trials as a way to keep all
the rest of the "justice" system on a track of relevance. When the
system goes too far out of alignment with the common man's notion of
justice it the obligation of the jury to nullify.

BTW, thanks for CoyoteBlog.

By: Jim Collins

Jim Collins — Thu, 01 Mar 2007 19:57:06 +0000

"I don't think this kind of anti-individual-rights jury nullificatin happens often in criminal court, but I do think it is happening a lot in civil court."

I think that OJ Simpson and Robert Blake would have to agree with you.

By: Thomas

Thomas — Thu, 01 Mar 2007 19:41:23 +0000

Good point Trent.

I tend to see the jury as a check on the legislative and judicial process espcially in criminal cases, but in civil there should be a different standard.

By: Trent McBride

Trent McBride — Thu, 01 Mar 2007 18:30:37 +0000

Is there any way to separate this question and answer it with reagrd to criminal law and civil law differently?

By: Skip Oliva

Skip Oliva — Thu, 01 Mar 2007 18:11:42 +0000

The phrase “jury nullification” tends to distort the issue. In criminal cases, juries are expected to serve as a check on the authority of the prosecutor and the judge. Nullification is a part (and necessary risk) of the system. In civil cases, juries are, as you explain, the law without any checks. The real question is whether it’s time to abolish civil juries or at least limit their jurisdiction. Much of the “civil justice” system can be effectively privatized with arbitrators and private judges.