Warning About Nullification

Posted on December 9, 2009, under news.

Over at Positive Liberty, Timothy Sandefur has a post about Jury Nullification. To snip out the central question (edited):

jury nullification is obviously an important and legitimate part of the judicial system … but … for a juror to lie during voir dire (the “stealth approach”) is a crime, and brazen lawlessness in the jury box—the one place where the law ought to be most carefully weighed and respected—sets an extremely dangerous precedent.”

So, jury nullification is important, legitimate, and even “the point of having a jury system”, but it’s now against the law, so give it up. He trots out reasons not to, even the times that the judges and lawyers, appalled at the freedom the jury might have, have decided to restrict that freedom, but he ignores the elephant in the room.

If the government is violating your civil rights (in this case, your right to judge the law), why are you morally obligated to obey the law and cooperate with the violation?

So I have several points of disagreement. Of course, my disagreements are from a moral standpoint, and not a legal one.

“For a juror to lie to get on a jury so as to nullify the outcome is contempt of court.” Okay, but what if I lie simply because it’s none of their business whether or not I might later decide to nullify?

“brazen lawlessness in the jury box—the one place where the law ought to be most carefully weighed and respected” This is, in my opinion, a self-contradictory statement. The entire point of nullification is weighing the law. The jurors must not be bound by the law if they are to be weighing it.

By characterizing nullification as: “Choosing to participate in order to throw a wrench into the works”, he shows his prejudice. The wrench is the laws depriving jurors of their civil right to judge the law. The ‘stealth option’ is the repair to the system.

The point of the article is that nullification will not end the drug war. I agree. But handing control back to the jury that they are entitled to exercise, is a fight worth fighting all on it’s own.


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