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

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

West Coast Publishing
LD 2015-16
Jury Nullification Pt 1
Edited by Jim Hanson
Research Assistance by
Matt Stannard
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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

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

Topic Overview

Definitions

United States Criminal Justice System

Jury Nullification

Ought

In the Face of

Perceived Injustice 1/2

Perceived Injustice 2/2

Affirmative

1AC 1/3

1AC 2/3

1AC 3/3

Value and Criteria Extensions

Jury Nullification Upholds Democracy and Rule of Law

Jury Nullification Has Historically Corrected Injustices

Status Quo Discourages Jury Nullification

Government Injustice Justifies Jury Nullification

Misuse of Nullification Doesn’t Dejustify It

Opponents of Nullification are Wrong

Opponents of Nullification Are Wrong

Negative

1NC 1/2

1NC 2/2

Value and Criteria Extensions

Jury Nullification Destroys the Rule of Law

Jury Nullification Kills Democracy

Increasing Jury Nullification Destroys Status Quo Balance

Jury Nullification Enables Stealth Jurors

Jury Nullification Justifies Jurors Doing Anything They Want

Jury Nullification Justifies Relativism

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 LeszekKolakowski 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 20th 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,

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,

Definitions

United States Criminal Justice System

The CJS is legislative, adjudicative, and correctional

Wikipedia, July 4, 2015

"Criminal Justice System," Wikipedia.org, (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 corrections

The 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, (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 rehabilitation

Criminal Justice Careers Center, 2015

"What is Criminal Justice?" Criminal Justice Careers Center Home Page, (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.