Serving on a Grand Jury: Balancing Duty and Morality

[Jimmy Snyder]

I have been selected to serve on a grand jury. We don't decide guilt or innocence as would a petit jury, we determine whether or not there will be a trial in the first place. The purpose is to limit the power of the govt to arrest people without probable cause. I assume that the prosecutors know what a grand jury will pass and what it won't pass and won't innundate us with poorly investigated cases.

My problem is that there are certain crimes that I don't think should even be crimes and which apparently are a large percentage of what we are going to pass judgement on. I am only supposed to determine if the law was broken. I am not supposed to judge whether the law itself is good.

What would you do if you thought that the law had indeed been broken, that the evidence against the defendant was sufficient, but that the law was a bad one? After all, you have a duty to the law and the state (county in my case), but also to the community.

 

[TheStatutoryApe]

There is jury nullification. The courts do not like it and would probably make it illegal if they could. I am unsure if jury nullification extends to grand juries as well though.

A quick search seems to indicate that it can be used by grand juries. Of course you may also get in a spot of trouble if the court does not like what you are doing.

 

[ndnkyd]

"I am only supposed to determine if the law was broken. I am not supposed to judge whether the law itself is good."

You answered your own question.

 

[Jimmy Snyder]

What if it were Arizona? Would you fall into line?

 

[turbo]

If you were called upon to judge Harriet Tubman based on the laws of the day, could you do it? If you were asked to judge the guilt of Rosa Parks for defying a Jim Crow law that said negroes had to give up bus seats to whites, could you do it? It might take jury nullification to undermine laws that are unjust. If you dig in your heels when you are told that you must strictly apply the law in all cases, you probably won't be selected for jury duty, but then again, you won't be on the jury, and able to nullify unjust laws.

 

[talk2glenn]

"I am only supposed to determine if the law was broken. I am not supposed to judge whether the law itself is good."

You answered your own question.

Truth. You are ethically obligated to judge the merits of the case, not the merits of the law.

But you are not a machine, and jurors can and do adjudicate cases based on their perception of what the law ought to be, rather than what the law is. This is an intentional quirk of the justice system, and why we have trial by jury (when it is more common in the history of law generally to have trial by judges, who would be less likely in principle to let personal opinion sway their reasoning).

Your peers are your last defense against a government run amok, so to speak.

 

[Ivan Seeking]

Truth. You are ethically obligated to judge the merits of the case, not the merits of the law.

You are ethically obligated to a higher law when there is clearly an injustice. I defer to the Declaration of Independence for that argument.

But you are not a machine, and jurors can and do adjudicate cases based on their perception of what the law ought to be, rather than what the law is. This is an intentional quirk of the justice system, and why we have trial by jury (when it is more common in the history of law generally to have trial by judges, who would be less likely in principle to let personal opinion sway their reasoning).

Your peers are your last defense against a government run amok, so to speak.

Given that a juror cannot be prosecuted for nullification, it is effectively a right.

 

[lisab]

"I am only supposed to determine if the law was broken. I am not supposed to judge whether the law itself is good."

You answered your own question.

Yes but I think that's idealized. And I think it's recognized that if a juror has an issue with the law and/or the punishment, that's a legitimate reason to be dismissed.

For example, in cases that could conceivably result in a death penalty, I'm pretty sure jurors who oppose capital punishment are omitted from selection. But I've not had first hand experience with this; has anyone here?

 

[Ivan Seeking]

What would you do if you thought that the law had indeed been broken, that the evidence against the defendant was sufficient, but that the law was a bad one? After all, you have a duty to the law and the state (county in my case), but also to the community.

I would never act as a mindless instrument of an unjust law.

 

[Evo]

I would never act as a mindless instrument of an unjust law.

It's not your decision to make so you would need to exclude yourself from being selected. If you can't be fair you need to say so.

You are ethically obligated to a higher law when there is clearly an injustice.

Like if a murderer goes free, you can take the law into your own hands?

 

[Jimmy Snyder]

There is jury nullification. The courts do not like it and would probably make it illegal if they could. I am unsure if jury nullification extends to grand juries as well though.

A quick search seems to indicate that it can be used by grand juries. Of course you may also get in a spot of trouble if the court does not like what you are doing.

I looked for information on jury nullification as it applies specifically to grand juries, but did not find any. Can you point me to what you found?

What I did find was that for petit jury, it has become practice to prevent lawyers from telling the jury about their right to nullification, but to impose no penalty if the jury nullifies. My search was neither deep nor broad and so may be worthless. I also read that jury nullification of violations of alcohol prohibition reached to 60% of cases and contributed to the repeal of that law. Please do not consider that authoritative as I only did a cursory search.

 

[Ivan Seeking]

It's not your decision to make so you would need to exclude yourself from being selected. If you can't be fair you need to say so.

It is my decision to make. That is why I have the right to make it.

Is there a law against it? No. Just because the justice systems tries to hide this fact, it is still a fact and how things are supposed to work.

Like if a murderer goes free, you can take the law into your own hands?

Not the same as this has been a tool of our justice system since the beginning. It is THE conservative point of view.

You are comparing a right, to a crime.

 

[TheStatutoryApe]

I looked for information on jury nullification as it applies specifically to grand juries, but did not find any. Can you point me to what you found?

What I did find was that for petit jury, it has become practice to prevent lawyers from telling the jury about their right to nullification, but to impose no penalty if the jury nullifies. My search was neither deep nor broad and so may be worthless. I also read that jury nullification of violations of alcohol prohibition reached to 60% of cases and contributed to the repeal of that law. Please do not consider that authoritative as I only did a cursory search.

In the wiki article it mentions a grand jury refusing to indict the Earl of Shaftesbury. That was centuries ago though. Jury nullification is completely based on common law so it shouldn't make any difference unless there has been a precedent that has changed it.

I didn't make a thorough search, just a quick google. It seems that you can simply refuse to indict. I do not think that there needs to be a unanimous decision in a grand jury though so the person may still be indicted even if you vote against.

 

[Jimmy Snyder]

Today was the first day that we were presented with cases. As I expected, in every case, the witnesses, all police officers, presented clear-cut probable cause for an indictment. There were three cases where I exercised my right to jury nullification and I looked directly at the eyes of the prosecutor as I did so in order to remove any doubt as to what I was doing. However, the prosecutors were deliberately looking away from the jury as if they didn't want to know how we voted. Since I was voting no-bill on open and shut cases, I did draw the attention of the jury foreman who asked me about it. When I told him I wouldn't vote for indictment on cases of a particular kind he said that it was my duty to judge whether the law had been broken, not on the law itself. I asked him to look up jury nullification on the web and we could discuss it next week when we meet again. I intend to continue in this fashion until the end of my tour of duty, or I get kicked off.

 

[Jimmy Snyder]

I was removed from the grand jury yesterday by the administrative judge who was not swayed by my forceful argument that jury nullification is a power given to the people.

 

[Ivan Seeking]

Do you think you were denied your rights? It would be interesting to see what the ACLU has to say about it.

If enough people do the same thing, it would be pretty tough to populate a jury. I guess it's a numbers game.

 

[Hurkyl]

Shame on you for abusing the system.

It's a wonderful thing that our justice system that a juror need not fear legal consequences for rendering what he judges to be the correct verdict.

Fortunately, abusing this trust is not widespread, otherwise it would have to be revoked to re-establish the rule of law. (Or, I suppose, the right to a trial by jury could be revoked instead?)

 

[Evo]

Shame on you for abusing the system.

It's a wonderful thing that our justice system that a juror need not fear legal consequences for rendering what he judges to be the correct verdict.

Fortunately, abusing this trust is not widespread, otherwise it would have to be revoked to re-establish the rule of law. (Or, I suppose, the right to a trial by jury could be revoked instead?)

He wasn't judging guilt, it was a Grand Jury, it was simply deciding if a law had been broken so the police could pursue a suspect. This wasn't a trial.

 

[Jimmy Snyder]

Fortunately, abusing this trust is not widespread, otherwise it would have to be revoked to re-establish the rule of law.

Actually, it was widespread during the prohibition era. 60% of cases brought acquital in spite of the evidence. The trust was not revoked. Instead the law against alcohol was repealed.

 

[Evo]

Actually, it was widespread during the prohibition era. 60% of cases brought acquital in spite of the evidence. The trust was not revoked. Instead the law against alcohol was repealed.

So were these moonshiners or drug dealers you were against the law on?

 

[Jimmy Snyder]

So were these moonshiners or drug dealers you were against the law on?

If I am not incorrect, it is a violation of PF rules for me to discuss this illegal business activity which if made legal would drive criminal elements out. A business which is carried on at almost every street corner instead of being confined to areas zoned for the purpose. A business with a vested interest in putting dangerous materials in the hands of children and which if made legal would have a vested interest in not doing so. A business which by virtue of its illegality draws violence and theft along with it, so that these business people bring weapons with them to their transactions. A business that makes it profitable to ruin the entire country of Mexico selling a product that wouldn't sustain the economy of Bangladesh if it were legal. So I keep quiet.

 

[Evo]

If I am not incorrect, it is a violation of PF rules for me to discuss this illegal business activity which if made legal would drive criminal elements out. A business which is carried on at almost every street corner instead of being confined to areas zoned for the purpose. A business with a vested interest in putting dangerous materials in the hands of children and which if made legal would have a vested interest in not doing so. A business which by virtue of its illegality draws violence and theft along with it, so that these business people bring weapons with them to their transactions. A business that makes it profitable to ruin the entire country of Mexico selling a product that wouldn't sustain the economy of Bangladesh if it were legal. So I keep quiet.

Good answer.

 

[Jimmy Snyder]

Good answer.

I should have added that in real life, I do not keep quiet. I fear, but I am brave. I care not to make the govt trust me.

 

[Hurkyl]

I have no assurance of your the breadth and depth of your knowledge relevant to whatever law is relevant, no expectation of your impartiality, and no faith in your ability to legislate for the assurance of domestic tranquility, et cetera. I certainly did not vote for you as my legislative representative.

It is my duty as a citizen to revile those who would abuse the justice system as a back-door attempt to influence law towards their whims and biases.



There are valid reasons one may have to participate in jury nullification, but you had darn well be sure you're in the right. Dereliction of your duty as a juror is not a matter to be taken lightly. As much as I prefer to be reserved in these discussions, I think the casual disregard for the rule of law warrants strong words, whether or not Jimmy is actually deserving of criticism in his particular case.

 

[Evo]

I have no assurance of your the breadth and depth of your knowledge relevant to whatever law is relevant, no expectation of your impartiality, and no faith in your ability to legislate for the assurance of domestic tranquility, et cetera. I certainly did not vote for you as my legislative representative.

It is my duty as a citizen to revile those who would abuse the justice system as a back-door attempt to influence law towards their whims and biases.



There are valid reasons one may have to participate in jury nullification, but you had darn well be sure you're in the right. Dereliction of your duty as a juror is not a matter to be taken lightly. As much as I prefer to be reserved in these discussions, I think the casual disregard for the rule of law warrants strong words, whether or not Jimmy is actually deserving of criticism in his particular case.

I have to say I lean with Hurkyl on this one. It's a Grand Jury. While I agree you have the right to not participate if you disagree with the law, I also have to say that they are still laws and the role of a grand jury is to decide if the police have provided enough evidence that a person has broken the law.

I honestly do not know if jury nulification is appropriate on a Grand Jury. Were you asked qualifying questions as part of the selection?

I just think that preventing a few drug traffickers from being tried just allows these thugs to go back to what they've been doing and changes nothing.

 

[Proton Soup]

you know, law enforcement does the same thing. they exercise discretion in deciding which laws they want to enforce, when, where, and for whom.

 

[Jimmy Snyder]

The power of nullification has been argued in the courts many times and has won out. My own case hinged on whether Federal law or State law should apply. I argued for Federal law but the judge applied State law. Here is the letter which I wrote to the judge, I have removed his name and the name of the particular activity I aim to legalize. The case is a matter of public record and a transcript can be obtained for a fee. I don't know if anyone can get a hold of it. The case is In Re: Grand Jury Panel #73 dated 8/26 and 9/2. The court was Burlington County Court in the State of New Jersey.

Dear Judge ...,

I would like to argue that jury nullification is a power granted at the federal level and therefore, New Jersey law would not be applicable in the matter of my exercise of that power.

Before I do so, I would like to address two points you brought up at our last meeting.

1. You were afraid I would exercise my power in more cases than just ... cases. My simple answer to this is that if the power to nullify exists at all, it exists for all cases, not just ... cases. However, so far, in all non-... cases, I have voted to bill. I have no knowledge of what other cases may appear before us in the future, but I can safely say that I have no interest in nullifying laws against the various forms of theft and assault that have come before us in the past.

2. That if I oppose a law, I ought to restrict my efforts to getting the legislature to alter it. My simple answer to this is that jury nullification is only ever applied to laws passed by the legislature. If the power exists at all, it exists for the purpose of opposing those laws.

Now to the issue of the jury nullification at the federal level.
First, I draw your attention to the Sixth Amendment to the US Constitution, which grants the right to a jury trial. In my opinion, this means that a jury's verdict cannot be set aside for any reason.

Next, I draw your attention to the Fifth Amendment to the US Constitution, which prohibits so-called double jeopardy and also means that a jury's verdict cannot be set aside. The purpose of these laws is to remove from the government a power and to put that power in the hands of citizens.

I also cite two federal cases: United States v. Moylan, 417 F. 2d 1002 - Court of Appeals, 4th Circuit 1969 A description of the decision in this case can be found on the web at this site: http://scholar.google.com/scholar_case?case=8977019992891102745&hl=en&as_sdt=2&as_vis=1&oi=scholarr

In this case, the decision was that the jury had the authority to exercise jury nullification but that the court need not instruct the jury of that authority.

Here is a quote from the decision:
We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."

United States v. Dougherty, 473 F.2d 1113, 1139 (1972). A description of the decision in this case can be found on the web at this site: http://faculty.maxwell.syr.edu/tmkeck/Cases/USvDougherty1972.htm

As in the first case, the decision was that the jury had the authority to exercise jury nullification but that the court need not instruct the jury of that authority.

Here is a quote from the decision: “The existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge, has for many years co-existed with legal practice and precedent upholding instructions to the jury that they are required to follow the instructions of the court on all matters of law. There were different soundings in colonial days and the early days of our Republic. We are aware of the number and variety of expressions at that time from respected sources -- John Adams; Alexander Hamilton; prominent judges -- that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.”


Respectfully yours,


Jimmy Snyder

 

[Ivan Seeking]

I have no assurance of your the breadth and depth of your knowledge relevant to whatever law is relevant, no expectation of your impartiality, and no faith in your ability to legislate for the assurance of domestic tranquility, et cetera. I certainly did not vote for you as my legislative representative.

Nor do I have any assurances of your motives, or the reason for your objections to a basic right.

It is my duty as a citizen to revile those who would abuse the justice system as a back-door attempt to influence law towards their whims and biases.

It is you who defines this to be an abuse of the system. Clearly you and the Constitution are not in agreement here.

There are valid reasons one may have to participate in jury nullification,.

such as...

 

[Ivan Seeking]

Jimmy, I applaud your dedication to our Constitutional protections.

I am surprised that State law could trump Fed law here. I doubt that would stand if it were taken to a higher court. The State does not have the right to reject rights granted at the Federal level.

 

[Hurkyl]

Jimmy, I applaud your dedication to our Constitutional protections.

I am surprised that State law could trump Fed law here. I doubt that would stand if it were taken to a higher court. The State does not have the right to reject rights granted at the Federal level.

United States Court of Appeals,Second Circuit, UNITED STATES v. THOMAS:

• We conclude, inter alia, that-as an obvious violation of a juror's oath and duty-a refusal to apply the law as set forth by the court constitutes grounds for dismissal under Rule 23(b).
• We also conclude that the importance of safeguarding the secrecy of the jury deliberation room, coupled with the need to protect against the dismissal of a juror based on his doubts about the guilt of a criminal defendant, require that a juror be dismissed for a refusal to apply the law as instructed only where the record is clear beyond doubt that the juror is not, in fact, simply unpersuaded by the prosecution's case.

 

[mheslep]

The power of nullification has been argued in the courts many times and has won out...

A discussion on the sovereign power e of jury trial outcomes misses the point. The courts have also ruled that the legal system has the right to remove you as a juror for an "obvious violation of a juror's oath".

 

[Vanadium 50]

Does it work both ways? If you conclude that not all the conditions have been met, but nevertheless that the person deserves to be punished, should you vote to indict? If it were a petit jury, and it hadn't been proven beyond a reasonable doubt, but you were sure the defendant was a bad person, should you vote to convict?

I also noticed that you didn't mention an important part of the history of jury nullification - when whites who were who lynched blacks were set free by juries exercising this power.

I'm with Hurkl and Evo: you have a duty to answer truthfully to the questions put to you in voir dire, and presumably you were asked about whether you would be willing to vote based on accepted legal standards.

 

[turbo]

I also noticed that you didn't mention an important part of the history of jury nullification - when whites who were who lynched blacks were set free by juries exercising this power.

All too true. Shirley Sherrod's father was murdered (shot in the back) by a white farmer in front of 3 witnesses. The all-white grand jury refused to indict.

At that time, refusing to register blacks to vote was a sure-fire way of keeping them off grand juries.

 

[Jimmy Snyder]

The independence of the jury is required by the Constitution and interpretted by the decisions of federal courts. The arguments against the wisdom of these articles are a form of jury nullification in themselves.

 

[Vanadium 50]

The independence of the jury is required by the Constitution.

Really? Where? The word "jury" appears four times, and never with the word "independent" in front of it. It does say "impartial" once, in the 6th Amendment, and this is usually interpreted as willing to "decide the case on the basis of the evidence presented."

I maintain that deciding you will or will not indict on a given charge irrespective of the evidence makes you partial, and thus you are depriving the parties to the case of the impartial jury required by the Constitution. You can argue that you need to do this on grounds of the greater good, but you cannot argue that you are supporting the Constitution in doing so.

 

[Jimmy Snyder]

Really? Where?

It is not for us to decide the meanings of laws, but for the court. I posted a federal court decision in my post #27 and which I repeat below:

We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

I would add that the independence of the jury is tied up in the existence of the jury. The alternative to a jury would be to have the judge pass the verdict. What need is there of a dependent jury? What would be its purpose or meaning?

 

[Hurkyl]

It is not for us to decide the meanings of laws, but for the court. I posted a federal court decision in my post #27 and which I repeat below:

And I can't find anything -- your own quote included -- that suggests the courts have ruled to protect this "power" for any deeper reason than policing it would have too much collateral damage. In fact, this was explicit in the ruling I linked. You are guilty of abusing a freedom meant to protect those who would take their duty seriously.

 

[Jimmy Snyder]

You are guilty of abusing a freedom meant to protect those who would take their duty seriously.

Using, not abusing. You are engaging in jury nullification. You admit my freedom, but won't acquit me of using or even abusing it as the law requires.

 

[Hurkyl]

Whoops! I let you trip me up, with your twisting of all the words involved!

The court puts the standard of evidence for nullification at "beyond doubt", and so protects you from dismissal for less evidence. Jury nullification is only a protected power in the same way that the U.S. Constitution protects your power to commit murder so long as you don't leave behind enough evidence to prove it beyond a reasonable doubt.

 

[pallidin]

If I understand correctly, the purpose of a grand jury is to agree or disagree on whether or not there is sufficient legal evidence in that case to go to trial.
A grand jury agreement(indictment) DOES NOT mean that the accused is guilty at all !
It just means that the grand jury believes that there is sufficient evidence to legally force the defendant(s) to be subjected to trial, be it judge or jury.
It has nothing at all to do with guilt or innocence. The grand jury does not have that power of disposition(deciding guilt or innocence)

Often used in cases of "circumstantial" evidence or complicated non-circumstantial evidence.

 

[mheslep]

If one accepts jury duty with the intent to conditionally nullify based on a personal interpretation of the law, then it seems to me upon receiving the juror's oath requiring decisions based only evidence, one must reply "No I do not so agree". Otherwise one sits in the juror's box under false pretense - whether or not the law protects the ability to do so.

 

[Proton Soup]

i think there is a time and place for it at the grand jury level. to me, it seems that the purpose of the grand jury is to provide check and balance to the executive authority's power of arrest and prosecution. if it appears to the grand jurist that the police and prosecution are using their power maliciously - in addition to the more mundane incompetence or lack of due diligence - then there is not just a right, but a duty to nullify.

 

[Vanadium 50]

That's not nullification. Nullification is when a juror decides that he doesn't like the law, so will vote to acquit (or not to indict, in the case of a grand jury) irrespective of the evidence.

For example, in the past, it was thought by certain segments of the population - to be perfectly OK - indeed, praiseworthy - to lynch African-Americans who got too "uppity". So grand juries regularly refused to indict, and juries regularly refused to convict. Not based on evidence - they just didn't like the law.

 

[Proton Soup]

where was it legal to lynch ?

 

[Evo]

where was it legal to lynch ?

How many white lynchers were tried and sentenced? Considering the blacks were killed without any legal intervention...

 

[Vanadium 50]

It was never legal to lynch. But because jurors felt that laws forbidding lynching were unjust - just as Jimmy feels other laws are unjust - they refused to indict or convict.

 

[JaredJames]

I'm not sure if I'm missing something here, but from what I've read, a Grand Jury is in place to determine whether or not a law has been broken and if enough evidence exists for a trial to take place.

Now I can't see where personal opinion (Jimmy's or otherwise) comes into this. Or more specifically, jury nullification, which seems to be a device to register your disagreement with a specific law.

I fully understand that you may not agree with certain laws, and as such you would believe no one should be punished because they break those laws. However, in this situation (grand jury) you are simply in place to decide if a trial should take place on the grounds there is sufficient evidence a law has been broken. This is simply a yes or no answer, either a) yes, there is evidence a law has been broken or b) no, there is not enough evidence a law has been broken, and as such, a trial should or should not take place.

Think of it on a scientific level, you are given evidence to support / disprove a hypothesis, you read it, you make your judgement based on the facts presented (or your own experiments) as to whether or not the evidence supports / disproves the hypothesis. Your own personal opinion or feelings should not, at any time, enter the equation.

Saying yes the law has been broken, does not show support for said law any more than saying no, there is not enough evidence. You are there to decide if there is evidence the law has been broken and a trial should take place.