A Nullification Denouement
WindyPundit weighs in:
But I found myself unable to devise a fact pattern where I could end up on a jury, after voir dire by competent lawyers and judges, in which a law I oppose to the point of wanting to nullify it was at issue. They would find me out before the trial started -- as is their prerogative, indeed their solemn duty.
Then again, if I could devise such a "reluctant juror" fact pattern, I'd be John Grisham or Reginald Rose.
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Meanwhile, no third solution has a comprehensive post in response to my nullification podcast. While he makes some perfectly reasonable points, I don't think he adequately addresses (or, if you prefer, he underweights) two key issues:
1. That libertarians do not have a monopoly on nullification, and therefore the maneuver is not intrinsically libertarian. Just as a gun can be used either for libertarian or anti-libertarian purposes, so too can nullification. It is therefore invalid for libertarians to claim a unique moral proprietorship of the act, as they so often do.
2. The simple truth remains that lying your way onto a jury is not the moral high ground. "The ends justify the means" was, last time I checked, simply not a core libertarian premise -- quite the opposite, in fact.
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Whether lying your way onto a jury can also constitute perjury is an utterly ancillary, jurisdiction-specific question that I feel no need to address. As for the question of whether advocating jury nullification can be a criminal act: of course not -- See Brandenburg v. Ohio, 395 U.S. 444 (1969).
Unless you are truly devoid of moral reasoning, there must be some level of unjustness at which you will abandon the law to avoid complicity in unconscionable evil.One of the things I wanted to add to my podcast on jury nullification, but didn't have time for, was to note that if, through no subterfuge of my own (i.e., I did not lie my way onto the jury), I suddenly found myself serving as a juror and witnessing a manifestly unjust prosecution (which would more likely involve wrongful conduct by the prosecutor or judge than a "bad law"), then I might very well vote to nullify the trial. But that is an altogether different question from traditional jury nullification of a law.
But I found myself unable to devise a fact pattern where I could end up on a jury, after voir dire by competent lawyers and judges, in which a law I oppose to the point of wanting to nullify it was at issue. They would find me out before the trial started -- as is their prerogative, indeed their solemn duty.
Then again, if I could devise such a "reluctant juror" fact pattern, I'd be John Grisham or Reginald Rose.
---
Meanwhile, no third solution has a comprehensive post in response to my nullification podcast. While he makes some perfectly reasonable points, I don't think he adequately addresses (or, if you prefer, he underweights) two key issues:
1. That libertarians do not have a monopoly on nullification, and therefore the maneuver is not intrinsically libertarian. Just as a gun can be used either for libertarian or anti-libertarian purposes, so too can nullification. It is therefore invalid for libertarians to claim a unique moral proprietorship of the act, as they so often do.
2. The simple truth remains that lying your way onto a jury is not the moral high ground. "The ends justify the means" was, last time I checked, simply not a core libertarian premise -- quite the opposite, in fact.
---
Whether lying your way onto a jury can also constitute perjury is an utterly ancillary, jurisdiction-specific question that I feel no need to address. As for the question of whether advocating jury nullification can be a criminal act: of course not -- See Brandenburg v. Ohio, 395 U.S. 444 (1969).
Related Posts (on one page):
- Should Jury Nullification Apply to Blocked Defenses Too?
- More on "Trial Nullification" versus "Law Nullification"
- A Nullification Denouement
- Stitch in Haste Podcast #002
- Speaking of the Ninja Turtle Scare...
- In Offense of Jury Nullification
- Did IQs Just Drop Sharply While I Was Away? (Part One)
- Where is Your Nullification God Now?
- Suddenly Jury Nullification Doesn't Sound So Great
Posted by Kip on
28 March 2008
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As you point out, I think I would be struck for cause in any case where I might nullify if I'm asked the right questions during voir dire.
However, I can imagine that a case might turn out differently than how it's described during voir dire. For example, I can truthfully answer I'd have no problem at all convicting a child molester, but if the actual case turned out to be an 18-year-old boy with a 15-year-old girlfriend (or boyfriend), I might not want to send him away with a sex offender record. I guess you might consider that scenario to be a case of incompetent voir dire, but it doesn't seem too crazy to me.
Moral reasoning 101:
Lying is NOT always wrong. As a general rule, “honesty is the best policy” may work, but whether or not it is actually wrong to tell a lie is heavily context sensitive. There are morally trivial justifications for lying - like telling your wife you’re going out for a beer with your buddy when you’re actually going out to pick up her surprise birthday present. Wrong? Seems not. But there are also perfectly legitimate, morally significant reasons to tell lies - for example to protect people from harm who deserve not to be harmed. “No, Mein Fuhrer, there are no Jews in my attic!”
Assuming that the war on drugs if profoundly unjust and immoral, since it has as its purpose the deliberate infliction of suffering and deprivation of liberty of peaceful people who are violating the rights of nobody, then all other things being equal, it is PERFECTLY LEGITIMATE to lie until your pants explode into flames if you can effectuate a Just, if “unlawful” verdict.
Nevertheless, legal or not, nullification is inevitable in some cases. I assume the debate is simply over whether there should be an instruction on nullification, either for or against. I prefer a system where juries are instructed on legal questions without an additional admonishment against nullification.
As an aside, defense attorneys infuse nullification into close cases all the time. Windypundit mentions the prospect of an 18 year old being convicted of statutory rape for having sex with a 15 year old. At the federal level, PervertedJustice.com and similar outfits have inspired individual vigilantes who do not enjoy the protection of the media and are often convicted of child pornography offenses (ironically, while hunting pedophiles). When I was an intern at a federal defender outfit we played to nullification in those cases (without success, the stigma is too great). Drug cases present the most sympathetic nullification candidates, though, particularly if it involves marijuana.
The more important question is whether the jury selection process should be reformed to allow jurors to serve when they disagree with the law.
It's not clear to me why anybody here thinks "telling the truth" is some kind of independent moral maxim. Clearly whether or not you should tell the truth to someone depends on a variety of different factors: including who is asking and for what purpose. If the purpose is to effectuate an injustice - and perpetrating the war on drugs is certainly a monumental injustice - then it seems pretty clear that preventing such an injustice is a great virtue.
You don't think lying is the moral high ground?
Why, other than "I say so"? Let's say you're called to testify under oath about the location of a family of runaway slaves, and you know the location. I'd say its morally unacceptable NOT to lie.
[Kip replies: Your counterexamples are hardly relevant or robust. "Wildly different fact patterns yield wildly different results" is not a powerful approach.]
Given that Gene was responding directly to Alec's assertion that it's "never" acceptable to lie under oath, the fact that Gene was able to provide an instance where even you seem to agree that clear moral intuitions indicate that lying would be acceptable -- seems to indicate that Alec is indeed wrong in his assertion and Gene is indeed correct.
That you think, as I assume many people do, that whether or not it is acceptable to lie under oath depends on the circumstances, simply begs the question of what those circumstances are. Since both you and Gene (Gene has, and I think I have not wildly misinterpreted your other posts on the topic) have categorically rejected jury nullification, it's a curious about-face to suggest that, yes, in some circumstances (such a the Fugitive Slave Act), nullification is okay.
If you really want to move the debate into the injustice of the War on Drugs itself -- that's great. That's ground that I, and many other opponents of the Drug War, would be HAPPY to debate on.