05.03b Jury Nullification. Professor Hoffman talked about whether Japan should reintroduce criminal juries, rather than just having judges decide cases. One oddity of our jury system is that one purpose--perhaps the main purpose-- is "jury nullification"-- the idea that juries provide a check on unjust laws and interpretations of laws by judges because the jury can always refuse to let the power of the state be used to oppress someone. That was one of the issues in the American Revolution-- Admiralty courts which could convict people without juries. Nowadays, though, we seem to suffer lots of disadvantages from juries (waste of time, ignorant decisionmaking, bias) without that advantage. The state has the modern equivalent of admiralty courts-- regulatory courts of various kinds that don't use juries but can take away all your money and force you to do things by threat of violence-- and we have introduced procedures to prevent jury nullification. In particular, a lawyer can no longer tell the jury of its power to nullify-- they have to know it on their own. Apparently an organization exists to try to inform jurors, though-- the Fully Informed Jury Association. I'll have to check them out.

It struck me, though, that while preventing the citizenry from stopping laws that go against community standards, we still let prosecutors and judges nullify laws. Prosecutors often choose not to enforce laws they don't like (obscenity, sex, and drug laws, for example) and judges often do the same (e.g., putting obstacles in the way of the death penalty). I like the idea of jury nullification better.

Professor Hoffman also said that in Kentucky juries decide the penalties in all felony cases. That sounds worth checking out too. [in full at 04.05.03b.htm]

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