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West Coast Publishing Jury Nullification LD Topic 2015-16, Part 1

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LD 2015-16Jury Nullification Pt 1

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WEST COAST DEBATE

LD 2015-2016

Jury Nullification Pt 1

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In the United States criminal justice system, jury nullification ought to be used

in the face of perceived injustice

WEST COAST DEBATE..............................................................................................................................2

In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.......................................................................................................................................................3

Topic Overview....................................................................................................................................5

Definitions...............................................................................................................................................9

United States Criminal Justice System...............................................................................................10

Jury Nullification................................................................................................................................11

Ought.................................................................................................................................................13

In the Face of.....................................................................................................................................14

Perceived Injustice 1/2......................................................................................................................15

Perceived Injustice 2/2......................................................................................................................16

Affirmative.............................................................................................................................................17

1AC 1/3..............................................................................................................................................18

1AC 2/3..............................................................................................................................................19

1AC 3/3..............................................................................................................................................20

Value and Criteria Extensions............................................................................................................21

Jury Nullification Upholds Democracy and Rule of Law.....................................................................22

Jury Nullification Has Historically Corrected Injustices......................................................................23

Status Quo Discourages Jury Nullification.........................................................................................24

Government Injustice Justifies Jury Nullification...............................................................................25

Misuse of Nullification Doesn’t Dejustify It........................................................................................26

Misuse of Nullification Doesn’t Dejustify It........................................................................................27

Opponents of Nullification are Wrong...............................................................................................28

Opponents of Nullification Are Wrong..............................................................................................29

Negative................................................................................................................................................30

1NC 1/2..............................................................................................................................................31




1NC 2/2..............................................................................................................................................32

Value and Criteria Extensions............................................................................................................33

Jury Nullification Destroys the Rule of Law........................................................................................34

Jury Nullification Destroys the Rule of Law........................................................................................35

Jury Nullification Kills Democracy......................................................................................................36

Increasing Jury Nullification Destroys Status Quo Balance................................................................37

Jury Nullification Enables Stealth Jurors............................................................................................38

Jury Nullification Enables Stealth Jurors............................................................................................39

Jury Nullification Justifies Jurors Doing Anything They Want............................................................40

Jury Nullification Justifies Relativism.................................................................................................41




Topic Overview In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice

What is jury nullification?

In traditional Western legal systems, judges typically instruct juries that they are merely finders of fact, not interpreters or arbiters of law. This implies that they must apply the evidence presented to them to already-existing laws in order to render a verdict, rather than decide questions about the validity or scope of the laws themselves.

However, since juries do not need to justify their decisions (that is, their decisions, even if subject to review, are not things they need to explain in order to be validated), juries have the power to refuse to apply a particular law. When they so refuse in order to acquit a defendant, this is known as nullification. Jury nullification occurs when a jury acquits a defendant regardless of, irrespective of, or in spite of the defendant being technically guilty of violating the law in question.

Juries might nullify for different reasons: They may think a particular law is generally unjust (ie, the Fugitive Slave Act, laws against marijuana possession and use, etc.). They may believe a particular application of the law is unjust (a victim of domestic violence technically committed homicide against her abuser but the jury acquits her anyway). They may even believe that law enforcement acted badly (coerced a confession, violated the rights of a suspect, etc.). In each instance, the jury is using their power to decide that the law, in that particular case, is to have no effect. Since the state and prosecution cannot appeal acquittals in the United States, jury nullification in effect lets defendants go free in spite of their probable guilt--never to be tried for that crime again.

Debaters on this resolution should be aware of what current laws regarding jury nullification actually permit and prohibit. First, jurors currently have the power to nullify. That is, they can simply refuse to convict and they don’t need to provide a reason. Second, the relevant question in terms of current laws is whether jurors ought to be informed that they possess this power. In other words, should judges include this in jury instructions (some states do), or should jury instructions strongly imply that jurors should not nullify, and should only apply facts to law (most states’ jury instructions do this)? There is really no mechanism to ban or mandate jury nullification, so the resolution asks whether it’s a moral good (hence the use of the word “ought”), and in the legal system, the question is typically framed as what should go in the jury instructions.

Moral foundations and arguments

The empaneling of juries is itself a huge step forward for humanity. The right to trial by jury (as opposed to trial in secret, or trial directly in front of the crown) originated with the Magna Carta of 1215. The document stated: “No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers . . .” But what is a “lawful judgment?” Supporters of jury nullification say that juries have the ability to interpret the law as well as the facts. Critics of jury nullification say juries cannot ignore the law. It’s clear that jurors in Old England followed the looser interpretation of the Magna Carta on many




occasions. There are historical records of jurors, particularly in the seventeenth century, refusing to convict many high-profile prisoners. According to Doug Linder of the University of Missouri-Kansas City, in U.S. history, nullification was also practiced in cases concerning the Alien and Sedition Act, and in the Prohibition Era, where “many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.”

As attorney Kenneth Duvall (cited in the evidence in this file) wrote in 2012, “the debate over the legitimacy of jury nullification can be broken down into two camps. One group views nullification as a ‘[f]undamental necessity of a democratic system.’ In contrast, others view nullification as ‘a sick doctrine that has occasional good days.’” In the former camp are those who believe that moral law matters more than civil law: as the philosopher Leszek Kolakowski wrote in his essay “Crime and Punishment,” “we can neither expect nor demand respect for the law just because it has been promulgated, regardless of its content. What matters is not respect for this or that (often accidental) decision of the majority in a parliament or of a judge. Rather, what matters is respect for the moral law, which may or may not coincide with the positive law and which involves the legally irrelevant distinction between good and evil.”

Supporters of the right to nullify follow President John Adams’ 1771 dictum: “It is not only [the juror’s] right, but his duty . . . to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

In the latter camp are those who are legitimately concerned that empowering jurors to nullify will send the message that jurors can ignore any law they disagree with, causing a bad kind of anarchy and lawlessness, and destroying the consistency that is necessary for the rule of law. Critics of jury nullification point out that the most prominent manifestation of nullification in the 20 th century was white racists being cleared by southern juries of wrongdoing in murders, arson, and racist beatings. Because consistency in applying the law is more important than allowing individual jurors to follow their personal consciences, critics of jury nullification follow a categorical imperative to apply the law to the facts, and say that if jurors are opposed to particular laws, they should fight—outside the court—to change those laws.

Debating the resolution

Both the affirmative and negative side of this debate have history on their respective sides. Even breaking moral scenarios down more specifically, both sides have significant history on their side. For example, one of the most compelling arguments for and against jury nullification is racism and civil rights. Jury nullification has been used to stop the Fugitive Slave Act. But jury nullification has also been used to acquit purveyors of racist violence.

Because of this historical impasse, better arguments might emerge from the future consequences and pragmatic implications of nullifying or not nullifying. For example, one law professor cited in the evidence in this file argues that jury nullification deters future government misconduct. This is because if prosecutors know that juries will acquit defendants whose rights have been violated, they will work hard to prevent those rights from being violated. The same logic could apply to unjust laws. If juries start acquitting every defendant arrested for possession of marijuana (at least those cases which actually go to trial), then it would only be a matter of time before the government stopped pursuing those cases.




Similarly, negatives can argue that the long-term consequences of promoting jury nullification would be a breakdown in the rule of law--and this would actually hurt defendants in the long run. Why? Because once jurors decide they can ignore law with which they disagree, there is no controlling the ideological or political direction they will take. They may not “nullify” at all--they may ignore evidence that exonerates a defendant, and convict them anyway. While it’s true that judges and the appeals process can check false convictions, increasing the number of such convictions (by encouraging jurors to ignore laws or facts) would do irreparable damage to the court system.

The emergence of the “stealth juror” phenomenon, popularized in the film Runaway Jury, is also significant to negative arguments. Jerry Markon of the Wall Street Journal reports that jury consultants and lawyers say stealth jurors are a “growing phenomenon.” Stealth jurors are people who get on juries and then proceed to sway other jurors to convict or acquit defendants, or decide civil cases in particular ways, in order to promote a private or political agenda. This is not nullification specifically, obviously, but negatives can argue that it’s a result of nullification--a result of sending the message that jurors can ever, at any time, ignore laws with which they disagree.

A final question concerns whether affirmatives should specifically designate their advocacy as being merely in general support of the morality of jury nullification, or more specifically in support of jury instructions that include the right to nullify. The problem with merely defending the morality of jury nullification is that nullification is extremely rare precisely because juries in most jurisdictions are vociferously instructed against it, and actors with authority in the legal system--judges, lawyers, even law professors--are reluctant in any setting, inside or outside of the court, to discuss nullification. As Doug Linder notes, “As it stands now, jurors must learn of their power to nullify from extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across . . . Many commentators have suggested that it is unfair to have a defendant’s fate depend on whether he is lucky enough to have a jury that knows it has the power to nullify.”

However, suggesting that jury instructions include the right to nullify seems beyond the scope of the resolution, and too much of a “policy prescription” for traditional views of Lincoln-Douglas debate.

In case affirmatives take the latter position, that nullification ought to be included in jury instructions, there is a section in the negative portion of this file taking the position that increased advocacy of or support for jury nullification would be bad. The argument is that the pro- and anti-nullification forces are in balance now—nullification is rare, used only when necessary. Increasing it would disrupt that balance, possibly kicking in some of the other scenarios in the negative section, like stealth jurors, racist verdicts, unjust acquittals, and the like.

Finally, here are some books and articles that didn’t make it into the evidence section, but are important reading for the resolution:

Clay S. Conrad, Jury Nullification: the Evolution of a Doctrine, Carolina Academic Press, 1998

J.D. Tuccille, “New Hampshire Adopts Jury Nullification Law,” Reason Magazine, June 29, 2012, http://reason.com/blog/2012/06/29/new-hampshire-adopts-jury-nullification

Simon Stern, “Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification after Bushell’s Case,” Yale Law Journal 111 (2002)




“Recognising the Activist Juror,” Deliberations: Law, news and thoughts on juries and jury trials, June 12, 2007, http://jurylaw.typepad.com/deliberations/2007/06/immigration_and.html




Definitions




United States Criminal Justice System

The CJS is legislative, adjudicative, and correctionalWikipedia, July 4, 2015"Criminal Justice System," Wikipedia.org, https://en.wikipedia.org/wiki/Criminal_justice#Criminal_justice_system (accessed 7/30/2015)The criminal justice system consists of three main parts: (1) Legislative (create laws); (2) adjudication (courts); and (3) corrections (jails, prisons, probation and parole). In the criminal justice system, these distinct agencies operate together both under the rule of law and as the principal means of maintaining the rule of law within society.

The United States Criminal Justice System includes federal, state, and local policing and correctionsThe Sentencing Project, August 2013"Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System," sentencingproject.org, http://sentencingproject.org/doc/publications/rd_ICCPR%20Race%20and%20Justice%20Shadow%20Report.pdf (accessed 7/30/2015)The United States criminal justice system is the largest in the world. At year end 2011, approximately 7 million individuals were under some form of correctional control in the United States, including 2.2 million incarcerated in federal, state, or local prisons and jails. The U.S. has the highest incarceration rate in the world, dwarfing the rate of nearly every other nation.

The United States criminal justice system is a series of interconnected agencies preventing crime and overseeing criminal procedure and adjudication, and includes rehabilitationCriminal Justice Careers Center, 2015"What is Criminal Justice?" Criminal Justice Careers Center Home Page, http://criminaljusticecareerscenter.com/ (accessed 7/30/2015)The United States criminal justice system is an extremely large and diverse system of interconnected agencies working together to uphold the social systems and laws by preventing crimes and enforce laws, keep social order, provide oversight in matters of guilt and innocence and issue penalties and assistance via rehabilitation to those found guilty of committing crimes.

There should be little question that the phrase can include both federal and state criminal justice. The phrase as a whole is very expansive, and the definitions using that particular wording are deliberately speaking in the broadest of terms: courts, cops, prosecutors, public defenders, legislators, and a variety of agencies. Obviously, jury nullification only applies to the court system, but the presence of this sweeping term suggests that the types of injustices discussed and addressed may be broad.




Jury Nullification

Jury nullification only refers to decisions to acquit a defendant despite proof beyond a reasonable doubt of defendant’s guilt; it does not include convicting a defendant despite her innocence, because due process checks thisAaron McNight, J.D. and prosecutor for the city of Orem, Utah, January 27, 2014"Jury Nullification as a Tool to Balance the Demands of Law and Justice," Brigham Young University Law Review Vol. 2013 No. 4, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview (accessed 7/29/2015)This Comment defines jury nullification as the jury’s intentional choice to acquit a criminal defendant despite proof beyond a reasonable doubt of the defendant’s guilt . In this Comment, jury nullification does not include convicting a criminal defendant that has not been proven guilty beyond a reasonable doubt . This definition allows this Comment to advocate for jury nullification without asking for courts to allow juries to find defendants guilty notwithstanding clear evidence of their innocence. The paper

limits the definition this way because, while there may be justifications for juries to nullify a defendant’s guilt, a jury’s decision to convict notwithstanding the evidence inherently violates due process .

Jury nullification requires jurors ignore specific instructions from the judgeMerriam-Webster Dictionary, 2015"Jury Nullification," Merriam Webster, http://www.merriam-webster.com/dictionary/jury%20nullification (accessed 7/29/2015)JURY NULLIFICATION. : the acquitting of a defendant by a jury in disregard of the judge's instructions and contrary to the jury's findings of fact.

Jury nullification is the decision to acquit based on a belief that the law is unjustPsychology Dictionary, 2015"What is Jury Nullification?" Psychology Dictionary, http://psychologydictionary.org/jury-nullification/ (accessed 7/30/2015)It can occur when the members of the jury believe that to find the defendant guilty would be unfair or unjust or would demand a sentence, which the jurors do not wish to be associated with e.g. death penalty.




There are multiple definitions of jury nullificationAaron McNight, J.D. and prosecutor for city of Orem, Utah, January 27, 2014"Jury Nullification as a Tool to Balance the Demands of Law and Justice," Brigham Young University Law Review Vol. 2013 No. 4, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview (accessed 7/29/2015)There are many definitions or descriptions of jury nullification. For example, Black’s Law Dictionary defines jury nullification: A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. Some scholars define jury nullification as the jury’s refusal to convict a criminal defendant even though there is proof beyond a reasonable doubt that the defendant’s behavior has satisfied the statutory elements of a crime. Meanwhile, critics refer to jury nullification as “the intentional disregard of the law as stated by the presiding judge” or “when a jury ignores the law as given by the court and chooses instead to play by its own rules.”

The negative on this resolution will argue that nullification for innocence’s sake will open the relativist floodgates and allow juries to ignore due process and convict defendants unjustly. This isn’t purely a definitional debate, but the McKnight evidence above suggests an argument by affirmatives—there are other due process checks on unjust convictions—we should debate the merits of nullificational acquittals. Other definitions on this page make specific demands of nullification—it has to occur in violation of instruction; or, it has to occur in response to an injustice.




Ought

Ought indicates duty or obligationCollins Dictionary, 2015"Ought," collinsdictionary.com, http://www.collinsdictionary.com/dictionary/english/ought (accessed 7/30/2015)to indicate duty or obligation

Ought does not indicate obligation—it merely indicates something might be a good ideaRalph Wedgwood, former professor of philosophy at University of Oxford, 2006"The Meaning of Ought," Oxford Studies in Metaethics, ed. Russ Shafer-Landau, vol. 1 (2006), http://www-bcf.usc.edu/~wedgwood/meaningofought.htm (accessed 7/30/2015)Many philosophical discussions of the meaning of ‘ought’ seem to assume that it is an obvious analytic truth that whenever one “ought” to do something, one has a “duty” or “obligation” to do it. This assumption seems eminently questionable to me. I ought to buy a new pair of shoes, but I surely do not have any duty or obligation to buy a new pair of shoes. Duties and obligations are in some sense “owed” to someone or something that is the object or beneficiary of the duty or obligation, while it is far from clear that anything like that need be true of everything that one “ought” to do. So for at least these reasons, ‘ought’, ‘is obliged’, and ‘has a duty’ must be distinguished. But I shall say nothing further about ‘duty’ and ‘obligation’ here.

Ought means expedientCollins Dictionary, 2015"Ought," collinsdictionary.com, http://www.collinsdictionary.com/dictionary/english/ought (accessed 7/30/2015)to express prudent expediency

The meaning of ought is contextualMatthew Chrisman, Reader in Philosophy at the University of Edinburgh, 2012"Ought and Control," Australasian Journal of Philosophy, vol. 90 no. 3, http://www.research.ed.ac.uk/portal/en/publications/ought-and-control(30700ceb-4944-4163-a9ed-8a5b4789805a).html (accessed 7/30/2015)Moreover, most of the different ‘senses’ of ‘ought’ appear to be systematically manifested in other languages and in other words in the system of English modals. This is why the orthodox view in theoretical semantics is that ‘ought’ is monosemous operator (akin to deontic necessity) but semantically underdetermined, such that its uses require significant contextual augmentation to determine a definite sense.

The most common debate around this word is whether it constitutes an obligation: Must the affirmative demonstrate that jurors are required to nullify? Or merely that they have the morally defensible option of doing so? The Wedgewood definition is a good resource on this debate because it explains exactly why it doesn’t constitute an obligation—with examples and linguistic analysis.




In the Face of

In the face of means despite opposition toChristine Ammer, noted reference scholar and author, 2003"In the Face of," The American Heritage® Dictionary of Idioms, reprinted at The Free Dictionary, http://idioms.thefreedictionary.com/in+the+face+of (accessed 7/31/2015)Despite the opposition of, notwithstanding, as in In the face of published statistics, they insist there is no flu epidemic.

In the face of means confronted withChristine Ammer, noted reference scholar and author, 2003"In the Face of," The American Heritage® Dictionary of Idioms, reprinted at The Free Dictionary, http://idioms.thefreedictionary.com/in+the+face+of (accessed 7/31/2015)When confronted with, as in It is hard for brokers to be cheerful in the face of a falling stock market.

In the face of can mean either in spite of or when threatened byUsingEnglish.com, 2015"Idiom: In the Face of," UsingEnglish.com, http://www.usingenglish.com/reference/idioms/in+the+face+of.html (accessed 7/31/2015)If people act in the face of something, they do it despite it or when threatened by it.

“In the face of” is an idiom and metaphor, so it is not always precisely defined. It can mean in opposition to, which for the purposes of the resolution would mean that the nullification would have to be in direct opposition to a specific act of injustice (interpretation A); or it can mean when confronted by, which for the purposes of the resolution would mean that the nullification would not have to be in direct opposition to the injustice, but simply a response to the injustice (interpretation B). To illustrate this difference: If the nullification of a guilty finding in one case was a general protest against the racism of the criminal justice system in general, that would be topical under interpretation B but not interpretation A. But if the nullification occurred as a response to the fact that the defendant in question was being prosecuted due to racism, that would be topical under interpretation A and probably under interpretation B as well.




Perceived Injustice 1/2 Perceived injustice is a sense of being hurt unfairly when someone else is to blameM.J. Sullivan, Professor of Psychology at McGill University, et al, July 28, 2012"Perceived injustice: a risk factor for problematic pain outcomes," Clinical Journal of Pain, reprinted at PubMed, http://www.ncbi.nlm.nih.gov/pubmed/22673480 (accessed 7/30/2015)For the purposes of this paper, perceived injustice is defined as an appraisal cognition comprising elements of the severity of loss consequent to injury ("Most people don't understand how severe my condition is"), blame ("I am suffering because of someone else's

negligence"), a sense of unfairness ("It all seems so ...)

To perceive is to become aware of or realize somethingOxford Dictionary, 2015"Perceive," Oxford Dictionaries, http://www.oxforddictionaries.com/definition/english/perceive (accessed 7/31/2015)become aware or conscious of (something); come to realize or understand.

To perceive is to interpret in a certain wayOxford Dictionary, 2015"Perceive," Oxford Dictionaries, http://www.oxforddictionaries.com/definition/english/perceive (accessed 7/31/2015)interpret or regard (someone or something) in a particular way.

The first definition, the only one that defines the two words together, holds that a perceived injustice is an injustice that causes an injury to another, where the agent causing that injury is seen as blameworthy and behaving unfairly. The second and third definitions give slightly different interpretations of perception: either it is the awareness of some actual thing, or it is to interpret in a certain way (presumably whether or not there is an actual thing in reality). The latter definition suggests that the perceived injustice needn’t be real.




Perceived Injustice 2/2

"Perceived" doesn't require confirmation--one can be wrong about what one perceivesMerriam-Webster Online, 2015"Perceive," merriam-webster.com, http://www.merriam-webster.com/dictionary/perceive (accessed 7/30/2015)Examples of PERCEIVE: "I thought I perceived a problem, but I wasn't sure."

Injustice must be committed by the court rather than an individualBlacks Law Dictionary Online, 2015"What is Injustice?" The Law Dictionary, http://thelawdictionary.org/injustice/ (accessed 7/31/2015)The withholding or denial of justice. In law, almost invariably applied to the act, fault, or omission of a court, as distinguished from that of an individual.

Injustice can be due to negligence or fraudBlacks Law Dictionary Online, 2015"What is Injustice?" The Law Dictionary, http://thelawdictionary.org/injustice/ (accessed 7/31/2015)Fraud is_ always the result of contrivance and deception; injustice may be done by the negligence, mistake. or omission of the court itself. Silvey v. U. S., 7 Ct. CI. 324.

The first definition suggests that one can be wrong about the injustice—whether it exists, who caused it—and it’s still a perceived injustice. The latter two definitions are delineations of injustice in a legal context. The court itself must be the purveyor of the injustice opposed by jury nullification in the first definition. The final definition simply says that injustice may be intentional (fraud) or unintentional (negligence).




Affirmative




1AC 1/3

The jury system is an experiment in radical democracy—in order to realize the full potential of this democracy, juries must be able to reject not only bad actions, but bad laws. Because of this, I stand resolved that in the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.

Observation One: Resolutional AnalysisA. Definitions

1. Jury nullification is refusal by a jury to convict those who are technically guilty

Cop Block, April 8, 2013"What is Jury Nullification?" CopBlock.org, http://www.copblock.org/29691/what-is-jury-nullification/Jury nullification is a constitutional doctrine which allows juries to acquit criminal defendants who are technically guilty, but who do not deserve punishment. It occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.

2. Ought means expedientCollins Dictionary, 2015"Ought," collinsdictionary.com, http://www.collinsdictionary.com/dictionary/english/ought (accessed 7/30/2015)to express prudent expediency

B. Value: Democracy. Democracy is necessary for the realization of human rightsUnited Nations, 2015"Democracy and Human Rights," United Nations Global Issues, http://www.un.org/en/globalissues/democracy/human_rights.shtml (accessed 7/6/2015)The values of freedom, respect for human rights and the principle of holding periodic and genuine elections by universal suffrage are essential elements of democracy. In turn, democracy provides the natural environment for the protection and effective realization of human rights. These values are embodied in the Universal Declaration of Human Rights and further developed in the International Covenant on Civil and Political Rights which enshrines a host of political rights and civil liberties underpinning meaningful democracies.




1AC 2/3

C. Criteria: Empathy towards suffering. Ignoring the suffering of others begins an incremental process of evil culminating in allowing things like the Holocaust

Dr. Jo-Ann Tsang, Associate Professor of Psychology at Baylor University, 2002"Moral Rationalization and the Integration of Situational Factors and Psychological Processes in Immoral Behavior," Review of General Psychology, Vol. 6 No. 1, http://www.baylor.edu/content/services/document.php/25042.pd (accessed 5/9/2015)Blumenthal (1999) described an incremental praxis of evil in which situational factors such as deindividuation and psychological factors such as rationalization allow individuals to engage in small unethical actions. When perpetrators realize they can engage in unethical behavior without punishment, they incrementally escalate their immoral behavior. Blumenthal used the Holocaust to illustrate the idea of incremental praxis, noting that the Nazis began with discrimination against the Jews and moved to persecution, imprisonment, and, finally, systematic extermination. With each incremental increase, people were desensitized to the level of immoral action, until the idea of concentration camps seemed reasonable and morally tolerable.

Observation Two: Jury nullification is a necessary democratic response to the unjust suffering of others

A. Nullification actualizes local democracy’s balance between safety and respect for neighbors

Ta-Nehisi Coates, nationally-recognized writer on race issues and senior editor for The Atlantic, October 25, 2011"In Defense of Nullification," The Atlantic, http://www.theatlantic.com/national/archive/2011/10/in-defense-of-nullification/247299/ (accessed 7/28/2015)One of the key themes of The Collapse of American Criminal Justice is the decline of local democracy in American criminal justice. In the late nineteenth and early twentieth century, the police, prosecutors, juries, and criminal defendants usually came from the same neighborhoods, especially in America's cities. Criminal defendants were neighbors, and jurors balanced their sympathy for the defendants' plight with their concern that their neighborhoods be safe. Not only were trials (rather than plea bargains) much more common, so were acquittals.




1AC 3/3 B. Nullification empirically succeeds—the acquittal of those who helped escaped

slaves get to freedom undermined the entire institution of slaveryPaul Butler, Associate Dean for Faculty Development, and the Carville Dickinson Benson Research Professor, at George Washington University Law School, June 15, 2009"Jury Nullification: Power To The People," Prison Legal News, https://www.prisonlegalnews.org/news/2009/jun/15/jury-nullification-power-to-the-people/ (accessed 7/29/2015)For about the first hundred years of our constitutional democracy, most courts endorsed this principle, and jurors were routinely instructed on their power to nullify. Perhaps the most shining example of nullification occurred during the shameful time in US history when slavery was legal. People who helped slaves escape committed a federal crime -- violation of the Fugitive Slave Act. But [if it’s a shining example it’s not really a “problem” I think] when Northern jurors sat in judgment of these “criminals,” they would often acquit, even when the defendants admitted their guilt. Legal historians credit these cases with advancing the cause of abolition of slavery.

C. Nullification deters future government misconduct and protects disenfranchised groups

Darryl K. Brown, Assistant Professor of Law at Dayton University, 1997"Jury Nullification within the Rule of Law," University of Minnesota Law Review, Vol. 81, http://www.law.virginia.edu/pdf/faculty/hein/brown/81minn_l_rev1149_1997.pdf (accessed 7/29/2015)Additionally, as discussed in more detail below in the context of Butler's proposal, nullification motivated by condemnation of official illegal actions such as perjury and improper searches serves instrumental goals that contribute to its justification. It discourages such conduct in the future as well as rejects on principle evidence "tainted" by illegality. It also lessens the likelihood that such illegality will be used disproportionately against some groups of citizens disfavored by discretionary government actors such as the police, thereby serving a broader antidiscrimination and equal-treatment principle. ' These instrumental concerns support a judgment that, when reconciling just application of a just law with sanction of official misconduct, the latter takes precedence over the former.

D. Pushing to overturn bad laws doesn’t protect those currently imprisoned or arrested: Juries have a unique responsibility to act in those particular cases

Radley Balko, criminal justice journalist and author of "Rise of the Warrior Cop," September 1, 2006"In Defense of Jury Nullification," Cato at Liberty, http://www.cato.org/blog/defense-jury-nullification (accessed 7/29/2015)Now, it’s true that many of those laws were eventually repealed or changed. But their later repeal doesn’t account for the fate of the people imprisoned or even executed while they were still on the books. What about them? Wouldn’t it have been better if a jury had assessed and acted on the immorality of those laws before they were repealed? And looking back now, isn’t it a wonderful thing that many juries did?




Value and Criteria Extensions Popular uprisings around the world validate the importance of democratic decisionmakingUnited Nations, 2015"Democracy and Human Rights," United Nations Global Issues, http://www.un.org/en/globalissues/democracy/human_rights.shtml (accessed 7/6/2015)

Recent popular uprisings across the Arab region were led by youth, women, and men from all social strata and are opening greater space for civic engagement in decision making. The calls for transformational change are a popular cry for choice, participation, transparency and respect for people’s legitimate quest for democratic space. These events have reaffirmed the pivotal importance of democratic governance as a system premised on inclusion, participation, non-discrimination and accountability.

Empathy is necessary for survival--human evolution proves thisJerry Schuitema, columnist at Ingenuity Unlimited, December 5, 2013 "Survival and Empathy," Moneyweb, http://www.moneyweb.co.za/archive/survival-and-empathy/ (accessed 7/31/2015)What deserves repeating is that evidence of this instinct can be found in our reflexive response to come to the aid of another in trouble; the fact that evidence has been uncovered of this instinct that accounted for the survival of a humanlike creature more than 200 000 years ago, and that scientists have identified the presence of mirror neurons in humans that far outnumber those found in other living creatures. More recently, scientists have determined that there is an area of the human brain (the anterior insular cortex) that accounts for empathy.




Jury Nullification Upholds Democracy and Rule of Law

Jury nullification upholds the rule of law by rejecting instances where the government acted lawlessly in the first instanceDarryl K. Brown, Assistant Professor of Law at Dayton University, 1997"Jury Nullification within the Rule of Law," University of Minnesota Law Review, Vol. 81, http://www.law.virginia.edu/pdf/faculty/hein/brown/81minn_l_rev1149_1997.pdf (accessed 7/29/2015)Nullification here is consistent with the rule of law; it might even be necessary for it." Under contemporary understandings of the rule of law, a jury may-or must-reconcile literal application of the criminal statute with principles and norms implicated in the case. Nullification here could be an act upholding the rule of law by condemning the prior, official breach of the rule of law . The jury, drawing from popular sentiments shaped in part by constitutional law, may determine official lawlessness to be the graver violation, perhaps on the reasoning that the rule of law serves foremost to set parameters of official behavior vis-a-vis spheres of individual liberty that were violated here. When faced with a choice between leaving unpunished an official violation (perjury, subornation, unconstitutional searches) and one by a private citizen (murder), the rule of law may give primary concern to official lawlessness, even given the gravity of the privately caused harm.

Jury nullification balances government interests with individual rights and serves as a mechanism of citizen review to make laws less rigid and impersonalAaron McNight, J.D. and prosecutor for city of Orem, Utah, January 27, 2014"Jury Nullification as a Tool to Balance the Demands of Law and Justice," Brigham Young University Law Review Vol. 2013 No. 4, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview (accessed 7/29/2015)This Comment argues that jury nullification is an important tool for balancing government interests with individual rights and that courts should adopt measures that allow for jury nullification while not expressly encouraging it. Jury nullification serves as a check on government power by adding a level of discretionary review and by allowing common human experience to temper the oft-times rigid application of the law.

Jury nullification serves as a check against unlawful government procedure, ensuring justice when the exclusionary rule failsAaron McNight, J.D. and prosecutor for city of Orem, Utah, January 27, 2014"Jury Nullification as a Tool to Balance the Demands of Law and Justice," Brigham Young University Law Review Vol. 2013 No. 4, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview (accessed 7/29/2015)In the first category of jury nullification—jury nullification in response to unlawful government behavior—the government correctly and justly applies the law to a criminal defendant’s behavior. However, in the course of a criminal investigation or prosecution, the government commits an objectionable offense, and the jury punishes the government by acquitting the defendant. Objectionable offenses could include, but are not limited to, perjured testimony or unreasonable searches or seizures. In this case, the jury makes a value judgment that the government’s inappropriate behavior was more reprehensible than the defendant’s. Thus, this category of jury nullification acts like the exclusionary rule by allowing a guilty criminal to escape punishment to discourage unacceptable governmental acts.




Jury Nullification Has Historically Corrected Injustices

Empirically jury nullification brought down the fugitive slave actAaron McNight, J.D. and prosecutor for city of Orem, Utah, January 27, 2014"Jury Nullification as a Tool to Balance the Demands of Law and Justice," Brigham Young University Law Review Vol. 2013 No. 4, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview (accessed 7/29/2015)The second category of jury nullification—nullification in response to unjust laws—consists of jury acquittals of a defendant who is otherwise guilty under a criminal statute because the jury disagrees with content of the statute. In these cases, the jury reasons that the law is unjust. Thus, the law should never apply under any circumstance. Prime examples of this category are acquittals of abolitionists who were accused under the Fugitive Slave Act of 1850. More recent examples include acquittals of defendants accused of violating Prohibition laws in the 1920s. In these examples, the juries acquitted simply because they did not agree with the law.

Empirically, nullification leads governments to stop prosecuting certain casesAaron McNight, J.D. and prosecutor for city of Orem, Utah, January 27, 2014"Jury Nullification as a Tool to Balance the Demands of Law and Justice," Brigham Young University Law Review Vol. 2013 No. 4, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview (accessed 7/29/2015)Leading up to the Revolutionary War, colonial juries frequently exercised their nullification power, principally in maritime cases and cases implicating free speech. Jury nullification became so common that many British prosecutors gave up trying maritime cases because conviction seemed hopeless. One of the earliest and most famous cases of jury nullification in early America was the prosecution of John Peter Zenger for seditious libel in New York in 1735. Under then-existing law, truth was not a defense to an allegation of seditious libel; thus, the prosecution needed to prove only that Zenger had published the material in question. Nevertheless, Zenger’s attorney, Alexander Hamilton, conceded that Zenger had published the material and attempted to prove the truth of what the material said. However, the court would not admit evidence regarding the truth of what Zenger published, so Hamilton merely argued to the jury that its members rely on what they already knew and acquit Zenger notwithstanding the lack of a valid legal defense. In response, the jury nullified the prosecution and acquitted Zenger despite the judge’s instruction to convict.

Jury nullification empirically results in bad laws being overturnedPaul Butler, professor of law at George Washington University, December 20, 2011"Jurors Need to Know that they can Say No," New York Times, http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?_r=2 (accessed 7/29/2015)Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)




Status Quo Discourages Jury Nullification

Jurors who might nullify are excluded through voir dire in the status quoAaron McNight, J.D. and prosecutor for city of Orem, Utah, January 27, 2014"Jury Nullification as a Tool to Balance the Demands of Law and Justice," Brigham Young University Law Review Vol. 2013 No. 4, http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview (accessed 7/29/2015)Courts can also use voir dire to limit jury nullification by asking questions to discover and excuse jurors that are likely to engage in jury nullification. Specifically, a court can “focus on the jurors’ ability to follow the law, to be a fair judge of all witnesses, to set aside personal beliefs and biases, to overcome personal opinions towards the defendant, and to disregard the penalty when making a decision.” Past cases in certain jurisdictions went so far as to require jurors to be asked about their views of the death penalty and to exclude those that are against it out of fear that such jurors would nullify a death penalty case (although the Supreme Court later prohibited that practice). Since voir dire happens before every trial as part of jury selection, many attorneys and judges ask questions of this nature and exclude jurors based on their responses.




Government Injustice Justifies Jury Nullification

Even if a juror swears to uphold the law, government injustice justifies nullificationMichael Huemer, professor of philosophy at the University of Colorado, November 12, 2012"The Duty to Disregard the Law," PhilPapers.org, http://philpapers.org/archive/HUETDT.pdf (accessed 7/29/2015)Third, even if the juror’s promise to apply the law were initially valid, any prima facie obligation created by that promise is cancelled if and when the state–the party to whom the promise was made–makes an unjust threat that can only be averted by breaking that promise. The juror’s oath thus has no moral force at all in a case in which the application of the law would be unjust.

Juries have the legal power to nullify and there is no check available for the prosecutionMichael Huemer, professor of philosophy at the University of Colorado, November 12, 2012"The Duty to Disregard the Law," PhilPapers.org, http://philpapers.org/archive/HUETDT.pdf (accessed 7/29/2015)The first interpretation is that jury nullification is “lawless” in the sense that it is illegal. This is simply false. No law requires a juror to vote “guilty” if the juror believes the defendant has been proven to have violated a law. It is recognized on all sides that, whether they are right or wrong in doing so, juries have the legal power to nullify. The fact that a jury chose to nullify does not constitute legal grounds for appeal by the prosecution, nor can any juror be punished for choosing to nullify.




Misuse of Nullification Doesn’t Dejustify It

The fact that some bad actors nullify based on racism doesn’t undermine the correctness of the nullification doctrine or the appropriateness of justice-motivated nullificationMichael Huemer, professor of philosophy at the University of Colorado, November 12, 2012"The Duty to Disregard the Law," PhilPapers.org, http://philpapers.org/archive/HUETDT.pdf (accessed 7/29/2015)Suppose you are on a jury in a trial in which the defendant is accused of violating an unjust law, and you are considering a nullification vote. Your motivation is not racist, and you know that it isn’t. You know that your motivation is the injustice of the law. It is difficult to see how the fact that some racist juries have voted to acquit defendants who should have been punished negates the very strong reason that you have, in this case, to acquit the defendant. The fact that others have done A for bad reasons does not make it wrong for one to do A for good reasons.

The misuse of nullification is not an argument against its appropriatenessPaul Butler, professor of law at George Washington University, December 20, 2011"Jurors Need to Know that they can Say No," New York Times, http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?_r=2 (accessed 7/29/2015)There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.




Misuse of Nullification Doesn’t Dejustify It

The jury is a convenient scapegoat for when prosecutors and lawmakers mess up—we should reject blaming juriesSteve Silverman, Executive Director of Flex Your Rights, February 4, 2014"8 Jury Nullification Objections Rebutted," Flex Your Rights, http://www.flexyourrights.org/8-jury-nullification-arguments-rebutted/ (accessed 7/29/2015)As Paul Butler, a Georgetown University law professor and former federal prosecutor suggests, “nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.” Moreover, according to legal scholar Clay Conrad, the jury is a convenient scapegoat for institutional injustices. After the trial is over, the jury doesn’t exist. Jurors return home and go back to work. So when police, prosecutors, judges, and even lawmakers are incompetent or malicious, they can blame the jury to divert attention from their failures.

Stealth jurors rare and easily addressedJason Sickles, Yahoo! News Reporter, January 21, 2015"Legal experts warn of stealth jurors infiltrating Colorado movie theater shooting trial," Yahoo! News, http://news.yahoo.com/experts-warn-of-stealth-jurors-infiltrating-colorado-theater-shooting-trial-152244785.html (accessed 7/29/2015)Cornell Law School professor Valerie Hans, who has done extensive research on the jury system, said she doubts “that the full-blown stealth juror is all that frequent.” “The idea of stealth jurors got a boost with [John] Grisham's compelling novel 'Runaway Jury,' where a juror with an agenda managed to sneak onto the jury to do justice from his perspective,” Hans wrote in an email to Yahoo News. Hans said the attorneys and judge can encourage more honesty by mixing up the format of their questions during voir dire, when potential jurors may be reluctant or embarrassed to disclose details about their backgrounds and potential biases.




Opponents of Nullification are Wrong Opponents of nullification must explain why we should presume the validity of current laws in the face of revelations of the invalidity of prior laws—whether they would have convicted violators of segregation or slavery laws—because the passage of time always reveals that current laws are badRadley Balko, criminal justice journalist and author of "Rise of the Warrior Cop," September 1, 2006"In Defense of Jury Nullification," Cato at Liberty, http://www.cato.org/blog/defense-jury-nullification (accessed 7/29/2015)Opponents of nullification also really need to answer for what they’d have done had they served on a jury in which the defendant was charged with violating Jim Crow laws, helping smuggle a slave to freedom, exercising his right to free speech in war time, or any number of other clearly immoral laws that have been on the books throughout American history. They need to ask themselves if it’s really possible that, given that history, we should just assume that all laws on the books today ought to be immune from the scrutiny of juries simply by virtue of the fact that they made it through the legislative process. Given our imperfect past, isn’t it a bit naive to think we’re perfect — or even “close enough” to perfect — today?

There is no categorical obligation to obey the law or governmentMichael Huemer, professor of philosophy at the University of Colorado, November 12, 2012"The Duty to Disregard the Law," PhilPapers.org, http://philpapers.org/archive/HUETDT.pdf (accessed 7/29/2015)First, the view that individuals lack any general, contentindependent duty to obey the law has in recent decades become a well-regarded, if not orthodox position in political philosophy. Philosophers attempting to defend a general duty to obey the law have found the task extremely difficult, and the most influential traditional account of this duty, the social contract theory, is now widely recognized as untenable. Recent theories of political obligation are vague, speculative, and increasingly recondite. This situation has come about, not as a result of some anti-authority bias on the part of political philosophers, but rather in spite of a widespread desire on the part of political philosophers to defend the authority of government.




Opponents of Nullification Are Wrong Criticisms of jury nullification are confused and incorrectSteve Silverman, Executive Director of Flex Your Rights, February 4, 2014"8 Jury Nullification Objections Rebutted," Flex Your Rights, http://www.flexyourrights.org/8-jury-nullification-arguments-rebutted/ (accessed 7/29/2015)When Paul Butler was a prosecutor in Washington, D.C., he observed that “there was rarely nullification in crimes with victims; jurors voted ‘not guilty’ in those cases because they had reasonable doubt about the government’s evidence, often because they didn’t believe the police.” This tendency among jury nullification critics to conflate reasonable doubt acquittals with nullification confuses the issue. It also sets juries against an impossible standard of perfection that we don’t expect from any other players in the criminal justice system.

Any arguments in favor of obeying the law are contingent and easily overcome by specific overriding reasonsMichael Huemer, professor of philosophy at the University of Colorado, November 12, 2012"The Duty to Disregard the Law," PhilPapers.org, http://philpapers.org/archive/HUETDT.pdf (accessed 7/29/2015)Second, even those who defend the notion of a general duty to obey the law defend only a prima facie duty, and not one that appears extremely strong. The duty to obey the law has been said, for example, to arise out of an obligation to avoid free riding, to treat other citizens as equals, or to promote just institutions in one’s society. While each of these obligations has some intuitive force, none appear to be exceptionally powerful and difficult to override.




Negative




1NC 1/2 No one is an island, and no one can be a law unto themselves. Because of this, I oppose the proposition that in the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.

Observation One: Resolutional AnalysisA. Definition

Jury nullification requires jurors ignore specific instructions from the judgeMerriam-Webster Dictionary, 2015"Jury Nullification," Merriam Webster, http://www.merriam-webster.com/dictionary/jury%20nullification (accessed 7/29/2015)JURY NULLIFICATION. : the acquitting of a defendant by a jury in disregard of the judge's instructions and contrary to the jury's findings of fact.

B. Value: Rule of Law: Rule of law is necessary for peace, stability, and democratic governance. Rules must be consistently applied.

United States Institute of Peace, 2004"Rule of Law," Guiding Principles of Stabilization and Reconstruction, http://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/7-rule-law (accessed 7/31/2015)Rule of law refers to an end state in which all individuals and institutions, public and private, and the state itself are held accountable to the law, which is supreme . Laws must be consistent with international human rights norms

and standards, legally certain, legally transparent, drafted with procedural transparency, and publicly promulgated. This end state requires equal enforcement and equality before the law, independent adjudication of the law, fairness in the application of the law, and avoidance of arbitrariness. Access to justice—the ability of people to seek and obtain a remedy through informal or formal institutions of justice—is a mutually reinforcing component of rule of law. The rule of law requires the separation of powers and participation in decision-making. Rule of law is the ideal that states strive for; stabilization requires urgent focus toward this end.

C. Criteria: Social Order: Social order is necessary to prevent chaos and war and cope with social problems

Michael Hechter, professor of sociology at the University of Washington, and Christine Horne, professor of sociology at Washington State University, 2003"The Problem of Social Order," in Theories of Social Order, http://www.sup.org/socialorder/Excerpts/Part%20I.pdf (accessed 7/31/2015)Societies with high levels of social order are able to cope with challenges like those faced in Montegrano. They are better able to provide education, control crime, reduce war, limit terrorism, improve public health, address global warming, and so forth.




1NC 2/2 Observation Two: Jury nullification violates the rule of law and undermines order

A. Jurors are morally justified in working to change laws they disagree with, not placing their personal preferences before the law at trial

Editorial Board of the Chicago Tribune, January 27, 2014"The Dangers of Jury Nullification," Chicago Tribune, http://articles.chicagotribune.com/2014-01-27/opinion/ct-jury-nullification-edit-0127-20140127_1_jury-nullification-law-professor-jurors (accessed 7/29/2015)No one would argue that juries should convict an innocent defendant merely because they resent the burdensome requirements placed on prosecutors. Such verdicts would mean defying the law in the alleged pursuit of justice. This renegade approach is not something a state government, charged with making and enforcing laws on behalf of its citizens, should encourage. Jurors who disagree with legislated prohibitions are morally entitled to work to change them. But they have no business putting their preferences above what democratic institutions have decided.

B. Allowing nullification opens up moral subjectivity that will lead to prejudicial decisions

Travis Hreno, associate professor of philosophy at University of Akron, 2013"Juror Nullification and the Bad Faith Juror," Leap Journal, http://leap-journal.com/archives/LEAP1-Travis-Hreno.pdf (accessed 7/29/2015)First, while the nullification instruction can certainly bring the standards of the community to bear on the administration of the criminal law, it can do so to the detriment of the accused, and not just to her benefit —regardless of her innocence—. Secondly, while the nullification instruction can help ensure that the citizenry

will not be victimized by unwarranted state action, it cannot ensure that individual defendants will not be victimized by unwarranted “moral prejudice” on the part of the jury. As a matter of fact, giving the instruction is almost a guarantee that some defendants will be victimized by unwarranted moral prejudice on the part of the jury.

C. Nullification allows racist murderers to escape justiceUnited States Court of Appeals for the Second Circuit, May 20, 1997United States v. Thomas, 116 F.3d 606, http://caselaw.findlaw.com/us-2nd-circuit/1382192.html (accessed 7/29/2015)Moreover, although the early history of our country includes the occasional Zenger trial or acquittals in fugitive slave cases, more recent history presents numerous and notorious examples of jurors nullifying-cases that reveal the destructive potential of a practice Professor Randall Kennedy of the Harvard Law School has rightly termed a “sabotage of justice.” Randall Kennedy, The Angry Juror, wall St. J., Sept. 30, 1994, at A12.

Consider, for example, the two hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old Emmett Till, see David Halberstam, the Fifties 431-41 (1993); Randall Kennedy, Race, Crime and the Law 60-63, 250 (1997); Juan Williams, Eyes on the Prize: America's Civil Rights Years, 1954-1965, at 38-57, 221-25 (1987)-shameful examples of how nullification has been used to sanction murder and lynching.




Value and Criteria Extensions

Rule of law prevents violence and ensures economic prosperityUnited States Institute of Peace, 2004"Rule of Law," Guiding Principles of Stabilization and Reconstruction, http://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/7-rule-law (accessed 7/31/2015)Without rule of law, criminal and politically motivated violence will perpetuate the threat that warring parties posed during violent conflict. A poorly functioning justice system will allow petty crime, violent crime, politically and ethnically motivated crime, sexual and domestic violence, and organized criminal activities to flourish. Crime may be perpetrated or tacitly supported by those in power, where government structures have become criminalized, and by former warring parties that have transformed into organized crime gangs. Unless groups that have been involved in violent conflict regard the justice system as a more attractive alternative to violence for resolving disputes, peace will not be sustainable. For the population, rule of law is necessary to ensure safety and security for individuals, families, property, and businesses and to allow freedom of movement to access public services such as education and health. Rule of law is the foundation for economic and political recovery and prosperity.

Public order requires the rule of lawUnited States Institute of Peace, 2004"Rule of Law," Guiding Principles of Stabilization and Reconstruction, http://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/7-rule-law (accessed 7/31/2015)Public Order is a condition in which laws are enforced equitably; the lives, property, freedoms, and rights of individuals are protected; criminal and politically motivated violence has been reduced to a minimum; and criminal elements (from looters and rioters to leaders of organized crime networks) are pursued, arrested, and detained.

Behaving predictably according to expectations is key to orderMichael Hechter, professor of sociology at the University of Washington, and Christine Horne, professor of sociology at Washington State University, 2003"The Problem of Social Order," in Theories of Social Order, http://www.sup.org/socialorder/Excerpts/Part%20I.pdf (accessed 7/31/2015)Coordination requires that people develop stable expectations about others’ behavior. When driving, for example, it is helpful to know whether others are likely to approach you on the right or the left side of the road. If you and I agree to a date Friday at 8:00 p.m., we presume that we are referring to the same time zone and calendar and that we will each be at the same place at the specified time. If you and I agree to a phone call Monday at 12:00 and you’re in London and I’m in Los Angeles, coordination is more difficult. If you call at noon London time but I’m expecting a call at noon Los Angeles time, then I will likely miss you. I will be asleep.




Jury Nullification Destroys the Rule of Law

Even supporters of nullification acknowledge it leads to lawlessnessDarryl K. Brown, Assistant Professor of Law at Dayton University, 1997"Jury Nullification within the Rule of Law," University of Minnesota Law Review, Vol. 81, http://www.law.virginia.edu/pdf/faculty/hein/brown/81minn_l_rev1149_1997.pdf (accessed 7/29/2015)Even among supporters, then, nullification is justified by acknowledging the limits of the rule of law, in which the application of general rules to specific cases sometimes yields unsatisfactory results.' To achieve one of law's ends-justice-we must sometimes abandon law's means, such as rule application. Like equity, nullification is one way, under this approach, to correct the imperfections of the rule of law and, when wisely used, to achieve justice in an individual case that rule application would not achieve. The disagreement between supporters and opponents of nullification verdicts, then, is not over whether such verdicts fit within the rule of law, but whether such "lawless" verdicts are necessary to achieve good results that law and existing institutions cannot.' More simply, the debate is whether jury lawlessness does more harm than good.

Jury nullification destroys the rule of law, causing chaos and anarchyUnited States Court of Appeals for the District of Columbia Circuit, December 30, 1972United States v. Dougherty, 473 F. 2d 1113, http://openjurist.org/473/f2d/1113 (accessed 7/29/2015)This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. This is the concern voiced by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1009 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970): "To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic, as appellants claim, but inevitably anarchic."




Jury Nullification Destroys the Rule of Law

Nullification makes jurors violate their oaths, and destroys the rule of lawUnited States Court of Appeals for the Second Circuit, May 20, 1997United States v. Thomas, 116 F.3d 606, http://caselaw.findlaw.com/us-2nd-circuit/1382192.html (accessed 7/29/2015)Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court-in the words of the standard oath administered to jurors in the federal courts, to “render a true verdict according to the law and the evidence.” Federal Judicial Center, Benchbook for U.S. district Court Judges 225 (4th ed. 1996) (emphasis supplied). We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.

Nullification results in lawlessness—juries don’t have the right to let guilty defendants go freeUnited States Court of Appeals for the Second Circuit, May 20, 1997United States v. Thomas, 116 F.3d 606, http://caselaw.findlaw.com/us-2nd-circuit/1382192.html (accessed 7/29/2015)As a panel of the Court of Appeals for the District of Columbia Circuit-composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg-explained: A jury has no more “right” to find a “guilty” defendant “not guilty” than it has to find a “not guilty” defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

Allowing any nullification is a slippery slope—jurors will expand their powersUnited States Court of Appeals for the District of Columbia Circuit, December 30, 1972United States v. Dougherty, 473 F. 2d 1113, http://openjurist.org/473/f2d/1113 (accessed 7/29/2015)But if the statement contains an element of hyperbole, the existence of risk and danger, of significant magnitude, cannot be gainsaid. In contrast, the advocates of jury "nullification" apparently assume that the articulation of the jury's power will not extend its use or extent, or will not do so significantly or obnoxiously. Can this assumption fairly be made? We know that a posted limit of 60 m.p.h. produces factual speeds 10 or even 15 miles greater, with an understanding all around that some "tolerance" is acceptable to the authorities, assuming conditions warrant. But can it be supposed that the speeds would stay substantially the same if the speed limit were put: Drive as fast as you think appropriate, without the posted limit as an anchor, a point of departure?




Jury Nullification Kills Democracy Jury nullification undermines the fabric of democracyUnited States Court of Appeals for the District of Columbia Circuit, December 30, 1972United States v. Dougherty, 473 F. 2d 1113, http://openjurist.org/473/f2d/1113 (accessed 7/29/2015)The democratic principle would not be furthered, as proponents of jury nullification claim, it would be disserved by investing in a jury that must be unanimous the function not merely of determining facts, hard enough for like-minded resolution, but of determining the rules of law. Rules of law or justice involve choice of values and ordering of objectives for which unanimity is unlikely in any society, or group representing the society, especially a society as diverse in cultures and interests as ours. To seek unity out of diversity, under the national motto, there must be a procedure for decision by vote of a majority or prescribed plurality-in accordance with democratic philosophy. To assign the role of mini-legislature to the various petit juries, who must hang if not unanimous, exposes criminal law and administration to paralysis, and to a deadlock that betrays rather than furthers the assumptions of viable democracy.

Nullification turns jurors into legislators and burdens them with making rulings on complex matters of lawUnited States Court of Appeals for the District of Columbia Circuit, December 30, 1972United States v. Dougherty, 473 F. 2d 1113, http://openjurist.org/473/f2d/1113 (accessed 7/29/2015)Moreover, to compel a juror involuntarily assigned to jury duty to assume the burdens of mini-legislator or judge, as is implicit in the doctrine of nullification, is to put untoward strains on the jury system. It is one thing for a juror to know that the law condemns, but he has a factual power of lenity. To tell him expressly of a nullification prerogative, however, is to inform him, in effect, that it is he who fashions the rule that condemns. That is an overwhelming responsibility, an extreme burden for the jurors' psyche. And it is not inappropriate to add that a juror called upon for an involuntary public service is entitled to the protection, when he takes action that he knows is right, but also knows is unpopular, either in the community at large or in his own particular grouping, that he can fairly put it to friends and neighbors that he was merely following the instructions of the court.




Increasing Jury Nullification Destroys Status Quo Balance

The Supreme Court holds nullification in balance now—it’s neither prohibited nor encouraged—allowing it to function as a protection of last resort for defendants, but preventing abuse. Any attempt to further legitimize nullification will disrupt that balanceKenneth Duvall, JD from University of Virginia School of Law, Associate with the law firm of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP in Kansas City, 2012"The Contradictory Stance on Jury Nullification," North Dakota Law Review vol. 88, https://law.und.edu/_files/docs/ndlr/pdf/issues/88/2/88ndlr409.pdf (accessed 7/29/2015)Arguments about jury nullification in both courts and academia typically proceed under the assumption that either proponents or opponents of nullification could decisively carry the day. But as current Supreme Court precedent stands, jury nullification is both prohibited and protected in a unique way. This Article shines a light on the uneasy, confusing compromise in the doctrines that prohibit and protect jury nullification, and finds the two ways out of this seemingly contradictory stance – fully embracing nullification, or rejecting it – are equally taboo to the American legal mind. If the Supreme Court is sincere in condemning nullification, the Court would stamp out the practice by allowing jury control devices in criminal proceedings. Conversely, if the Court is determined to honestly sanction nullification, it would justify the currently incoherent ban on criminal jury controls. However, based on examinations of the Court’s current make-up and the entrenched positions on both sides, this Article contends the Court will not bring itself to either encroach on the jury or openly endorse nullification. Instead, the contradiction at the heart of this issue will continue to exist as a frozen conflict, awaiting a thaw that is unlikely to come.

The government keeps nullification in limbo now—authorizing or forbidding it will undermine the balance and moderation it currently enjoysKenneth Duvall, JD from University of Virginia School of Law, Associate with the law firm of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP in Kansas City, 2012"The Contradictory Stance on Jury Nullification," North Dakota Law Review vol. 88, https://law.und.edu/_files/docs/ndlr/pdf/issues/88/2/88ndlr409.pdf (accessed 7/29/2015)It is likely the Supreme Court will avoid confronting this issue. Instead, the Court will allow the uneasy balance to continue, wherein juries are told to apply the law as instructed and yet, are free to ignore the law because of the lack of oversight and direction. That the jury has the power, but not right, to nullify, is an illogical, insincere, and maybe even unnecessary compromise, yet it has lasted for over a century now, and looks to continue into the foreseeable future. Similarly, the few instances of the recognition of nullification in our system also appear here to stay as part of the de facto settlement between the two factions. However, should the Court decide to face the fact that under the Sixth Amendment, the prohibition on jury control devices merely serves to safeguard a banned practice, then the Court must either follow Sparf through to its inevitable conclusion and allow jury control mechanisms in criminal trials in order to purge an anachronistic practice; or, overrule Sparf in recognition of nullification’s place in the Sixth Amendment so that the prohibition on jury control devices becomes justified. Either course of action – openly recognizing the jury’s right to nullify or openly recognizing the judge’s right to direct verdicts – would be a shock, until one realizes both scenarios would be cause for surprise, indicating our collective cognitive dissonance on the issue. This author hopes this issue will be resolved one way or the other, but, the middle path is the most comfortable one, and the likely path for the foreseeable future.




Jury Nullification Enables Stealth Jurors

Stealth jurors are increasing, and impossible to spot before trial when it’s too lateJerry Markon, Staff Reporter, Wall Street Journal, July 31, 2001"Stealth Jurors Don't Disclose Bias, Then Seek to Sway Peers in Trial," The Wall Street Journal, http://www.wsj.com/articles/SB996532049765780987 (accessed 7/29/2015)The case spotlights what many jury consultants and lawyers say is a growing phenomenon. Motivated by a desire for fame or money or by strong views about a case, "stealth" jurors present themselves as impartial so they'll be chosen to sit on a jury or remain on a jury and then try to sway other jurors during deliberations. Lawyers and trial consultants attribute the change to heightened court coverage since the O.J. Simpson trial. Getting seated for a particular trial -- as the protagonist did in the John Grisham thriller "Runaway Jury" -- is extremely difficult. But stealth jurors inaccurately present themselves as fair or hide

some other conflict of interest like a book-writing plan. They occasionally confess to their biases after the fact, but otherwise they're almost impossible to spot because "a lot of this is attitudinal and passive," says Rick Fuentes of DecisionQuest Inc., a trial consultant. "For every case where we can verify some degree of deception, there are probably three more where it's there but we don't find it."

Nullifying jurors consider themselves free from reprimand and can ignore any instructionsTravis Hreno, associate professor of philosophy at University of Akron, 2013"Juror Nullification and the Bad Faith Juror," Leap Journal, http://leap-journal.com/archives/LEAP1-Travis-Hreno.pdf (accessed 7/29/2015)The nullification instruction essentially informs jurors that they are free to disregard the judge’s instructions regarding the law. In other words, the judge is saying something akin to: “I am going to give you an order regarding how the law in this case is to be interpreted. However, you are free not to follow that order”. But given that instruction, what is to prevent the jury from wondering whether all such instructions from the bench are similarly discretionary in nature?.Once a juror comes to the realization that she can ignore a particular judicial instruction free from reprimand, presumably she’ll realize that what protects her from reprimand when she ignores the judge’s instructions regarding the law will also protect her from reprimand when she ignores other judicial instructions.

Juror misconduct is a significant problem and sequestration doesn’t solve for civil casesRalph Artigliere, former Florida Circuit Judge and attorney, et al, January 2010"Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers," Florida Bar Journal, Vol. 84, No. 1, https://www.floridabar.org/divcom/jn/jnjournal01.nsf/8c9f13012b96736985256aa900624829/d9a2f95a71f304778525769b006dd8d5!OpenDocument (accessed 7/29/2015)Juror misconduct is not a recent problem. Despite instructions from trial judges to the contrary, jurors have been too often tempted to access information from outside the courtroom. Years ago, one solution to the elimination of outside influence on jurors was sequestration. Sequestration is still used in noncapital criminal cases in Florida at the trial court’s discretion and is required in death penalty cases, absent waiver or special circumstances. In civil cases, however, economics, not to mention inconvenience and discomfort to jurors, has all but eliminated sequestration as a viable method to prevent contact with the outside world.



https://www.floridabar.org/divcom/jn/jnjournal01.nsf/8c9f13012b96736985256aa900624829/d9a2f95a71f304778525769b006dd8d5!OpenDocument



Jury Nullification Enables Stealth Jurors

Examples of juror misconduct aboundRalph Artigliere, former Florida Circuit Judge and attorney, et al, January 2010"Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers," Florida Bar Journal, Vol. 84, No. 1, https://www.floridabar.org/divcom/jn/jnjournal01.nsf/8c9f13012b96736985256aa900624829/d9a2f95a71f304778525769b006dd8d5!OpenDocument (accessed 7/29/2015)The problem of outside influence on jurors is no longer confined to high profile cases that are covered in the press or other media. Courtroom misconduct seems to be everywhere. Recently, a witness in Miami was discovered texting his boss about his testimony during a sidebar

conference resulting in a mistrial; a South Dakota juror in a seat belt product liability case Googled the defendant and informed five other jurors that the defendant had not been sued previously; a juror in a federal corruption trial in Pennsylvania posted his progress during deliberations on the Internet resulting in a motion for mistrial; a juror in Bartow, Florida, looked up a defendant’s “rap sheet” online and told fellow jurors, resulting in a mistrial; and jurors in a Florida criminal case made anti-Semitic comments to each other and consulted one of the jurors’ accountants during deliberations by telephone. Nine of the jurors on a deliberating panel in a federal case in Miami admitted to the judge that they had been doing research on the case over the Internet, resulting in a mistrial . The judge learned that the jurors were Googling the lawyers and the parties, finding news articles about the case, researching definitions and information on Wikipedia, and looking for evidence that had been excluded in the case. All

this was accomplished despite the judge’s repeated instruction not to do so. These examples represent recent transgressions that were discovered, and probably represent just the tip of the iceberg of juror behavior.

Incentives and technological means of jury misconduct are plentiful—jurors can violate their discretion easilyRalph Artigliere, former Florida Circuit Judge and attorney, et al, January 2010"Reining in Juror Misconduct: Practical Suggestions for Judges and Lawyers," Florida Bar Journal, Vol. 84, No. 1, https://www.floridabar.org/divcom/jn/jnjournal01.nsf/8c9f13012b96736985256aa900624829/d9a2f95a71f304778525769b006dd8d5!OpenDocument (accessed 7/30/2015)Why is juror misconduct on the rise? Consider the setting for today’s jurors. Most jurors enter a place and a system they know little about, except through cultural sources of the press, television, movies, and now the digital media. Many of them, perhaps most, will have at least a cell phone, and an increasing number of jurors will have equipment and habits that keep them in audio, text, and visual media contact with the world and other people through phone or Internet. Some will be extremely attached, to the point of dependence, on their phone, iPod, Blackberry, or other device, a form of behavior that is a product of relatively recent cultural shifts and is fully understood only by others with similar techno-savvy skills and behavior. Judges and lawyers should take into account the motivation, capability, or dependence of such jurors on their equipment. Some jurors will want to text what they are doing at any given moment and why they are doing it to friends, family, and thousands of strangers. To say that current jurors have enhanced temptation and ability to communicate about the trial with the outside world is the understatement of this still young century. Jurors have the capability instantaneously to tweet, blog, text, e-mail, phone, and look up facts and information during breaks, at home, or even in the jury room if they are allowed to keep their digital “windows to the world.” Jury instruction by the judge about communication outside the courtroom has not kept pace with technology.








Jury Nullification Justifies Jurors Doing Anything They Want

Once a juror accepts the principle of nullification, she can disregard any part of the law--this risks undermining fair trialTravis Hreno, associate professor of philosophy at University of Akron, 2013"Juror Nullification and the Bad Faith Juror," Leap Journal, http://leap-journal.com/archives/LEAP1-Travis-Hreno.pdf (accessed 7/29/2015) It seems obvious that the nullification instruction might encourage jurors to disregard important judicial instructions regarding the procedural and substantive constraints embedded in the notion a fair trial. The standard elements of a fair trial (objective rules of evidence, the presumption of innocence, and the burden of proof resting with the prosecution) are all safeguards put in place in an attempt to minimize the possibility of wrongful convictions. The fact of the matter is, however, that such safeguards are, in effect, discretionary. That is, the jury can ignore all or some of them with complete impunity. When juries ignore such judicial instructions regarding the law it is not hard to imagine that in some instances their deliberations might tend towards a guilty verdict even in cases where a strict application of the law might demand the opposite verdict.

Once one jury instruction can be ignored, they all can, undermining things like the presumption of innocenceTravis Hreno, associate professor of philosophy at University of Akron, 2013"Juror Nullification and the Bad Faith Juror," Leap Journal, http://leap-journal.com/archives/LEAP1-Travis-Hreno.pdf (accessed 7/29/2015)Of course, one might argue that the distinction between relevant and extraneous evidence is a question of law, and hence, such behaviour on the part of the jury is nothing more than an instance of nullification. But then consider the principle that the decision not to defend oneself on the stand is not to be taken as evidence of guilt. Judges give that particular order precisely because it is human nature to consider it suspicious when someone does not try to defend himself or herself. Jurors, too, have to struggle against that tendency, and it is a struggle that all agree ought to be encouraged, fostered and supported. Moreover, this principle is at the heart of the ideal that it is the prosecution’s responsibility to prove guilt, not the defendant’s responsibility to prove innocence. Again, the problem here is that once it becomes clear that one judicial instruction can be safely ignored, it soon becomes obvious that a great many others can as well. It is an established principle of our criminal justice system that the burden of proof rests with the prosecution.




Jury Nullification Justifies Relativism

Jury nullification justifies relativism Robert H. Bork, Scholar in Legal Studies at the American Enterprise Institute, June/July 1999"Thomas More for Our Season," First Things, http://www.leaderu.com/ftissues/ft9906/articles/bork.html (accessed 7/29/2015)Against the backdrop of Justices disregarding the law, it is not surprising that jurors are refusing to be bound by either law or evidence if the results do not fit their personal views . Our representatives enact the laws but juries scattered across the country vote on them again, often overturning the democratic choice. This pernicious practice occurs not only sub silentio but is coming into the open. There is even a national organization, the "Fully Informed Jury Association," to justify and encourage jury lawlessness. Some nullification occurs because black jurors think the law is arrayed against them or out of racial solidarity (the O. J. Simpson verdict), but other defiances reflect libertarian attitudes and personal disapproval of the law (the Jack Kevorkian acquittals).

According to the Washington Post, a poll shows that three out of four Americans say they would disregard the judge’s instructions if the law contravened their own ideas of right and wrong . Now we have seen Senate nullification of the law of impeachment. The evidence left no doubt that the President had deliberately and repeatedly committed perjury, tampered with witnesses, and obstructed justice. Felonies, all of them. Nor is there any doubt, based on the Framers’ understanding and prior Senate precedent, that these offenses constituted "high crimes and misdemeanors" requiring removal from office. Yet the Senate felt free to prefer partisan interests to law, and refused to convict. These are manifestations in the law of the absorption with self and the disrespect for inconvenient rules that permeate our culture. This absorption, variously called radical individualism or autonomy, is taken to justify even institutional lawlessness. As Bickel noted, civil disobedience, no matter by whom or in what cause, is always "a decision in favor of self, in favor of the idea of self." That is why, in the law, it encourages moral relativism, which is a leading feature of modern constitutional adjudication as well as jury verdicts and legislatures sitting as courts of impeachment.

We must always reject relativism and fight against itFrank S. Meyer, philosopher and author of In Defense of Freedom, 1959"Forward" in Frank Chodorov, The Rise and Fall of Society, https://mises.org/system/tdf/The%20Rise%20and%20Fall%20of%20Society_5.pdf?file=1&type=document (accessed 7/29/2015)But in our society, where relativism rules supreme, where truth is not merely distorted but its very existence denied, power grows to monstrous proportions without any inner check in the bosoms of those who hold it. In place of truth, the ideal is adjustment, that is, the acceptance of whatever happen to be the modes of thought and action established among us—not because it is purported that they are true, but just because they are. In this paradise for power unchecked by any criterion but its own, the way of the man who would bear witness to and fight for truth because it is truth is doubly hard. Not only, as in former ages, must he confront the established authorities of the day with the divergence of their acts from the demands of truth; he has to substantiate—explicitly or implicitly—the very title of truth as criterion.



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