Specific jurisdictions Jury nullification

1 specific jurisdictions

1.1 canada
1.2 england , wales
1.3 united states

1.3.1 fugitive slave law
1.3.2 post civil war
1.3.3 21st century
1.3.4 judicial opinion
1.3.5 state laws

specific jurisdictions
canada

although extremely rare, jury nullification occur in canada. however, prosecution has powers appeal resulting acquittal, lacks finality found in united states. being said, crown cannot appeal on grounds of unreasonable conviction can appeal on errors of law. in r. v. latimer, 2001 scc 1, supreme court discussed jury nullification, , indicated duty of presiding justice try prevent occurring.

perhaps famous cases of jury nullification in canada various trials of henry morgentaler, openly operated private abortion clinic in violation of criminal code. repeated attempts @ prosecuting morgentaler resulted in acquittals @ jury trials in 1970s , 1980s. in 1988 supreme court case, r. v. morgentaler, 1988 scr 30, nullification appealed way country s highest court, struck down law in question. in obiter dicta, chief justice dickson wrote:

the contrary principle contended mr. manning, jury may encouraged ignore law not like, lead gross inequities. 1 accused convicted jury supported existing law, while person indicted same offence acquitted jury who, reformist zeal, wished express disapproval of same law. moreover, jury decide although law pointed conviction, jury refuse apply law accused whom had sympathy. alternatively, jury feels antipathy towards accused might convict despite law points acquittal. give harsh, think telling example, jury fueled passions of racism told need not apply law against murder white man had killed black man. such possibility need stated reveal potentially frightening implications of mr. manning s assertions. [...]

it no doubt true juries have de facto power disregard law stated jury judge. cannot enter jury room. jury never called upon explain reasons lie behind verdict. may true in limited circumstances private decision of jury refuse apply law constitute, in words of law reform commission of canada working paper, citizen s ultimate protection against oppressive laws , oppressive enforcement of law (law reform commission of canada, working paper 27, jury in criminal trials (1980)). recognizing reality far cry suggesting counsel may encourage jury ignore law not support or tell jury has right so.

the supreme court more issued decision, r. v. krieger, 2006 scc 47, confirmed juries in canada have power refuse apply law when consciences require so. within decision, stated juries not entitled matter of right refuse apply law — have power when consciences permit of no other course.

england , wales

by late 17th century, court s power punish juries removed in bushel s case involving juror on case against william penn. penn , william mead had been arrested in 1670 illegally preaching quaker sermon , disturbing peace, 4 jurors, led edward bushell, refused find them guilty. instead of dismissing jury, judge sent them further deliberations. despite judge demanding guilty verdict, jury time unanimously found penn guilty of preaching acquitted him on charge of disturbing peace , acquitted mead of charges. jury subsequently kept 3 days without meat, drink, fire , tobacco force them bring in guilty verdict; when failed judge ended trial. punishment judge ordered jurors imprisoned until paid fine court. 4 jurors refused pay fine, , after several months, edward bushell sought writ of habeas corpus. chief justice vaughan, sitting on court of common pleas, discharged writ, released them, called power punish jury absurd , , forbade judges punishing jurors returning verdict judge disagreed with. series of events considered significant milestone in history of jury nullification. particular case celebrated in plaque displayed in central criminal court (the old bailey) in london.

in criminal libel case, r. v. shipley (1784), 4 dougl. 73, 99 e.r. 774, @ p. 824, lord mansfield disparaged practice of jury nullification:

so jury usurp judicature of law, though happen right, wrong, because right chance only, , have not taken constitutional way of deciding question. duty of judge, in cases of general justice, tell jury how right, though have in power wrong, matter entirely between god , own consciences.

to free live under government law [...]. miserable condition of individuals, dangerous condition of state, if there no law, or, same thing, no administration of law, protect individuals, or guard state.

[...]

in opposition this, contended for? – law shall be, in every particular cause, twelve men, shall happen jury, shall inclined think; liable no review, , subject no control, under prejudices of popular cry of day, , under bias of interest in town, thousands, more or less, concerned in publication of newspapers, paragraphs, , pamphlets. under such administration of law, no man tell, no counsel advise, whether paper or not punishable.

a 2016 study exploring history of juror punishment in england , wales after bushel s case found no clear examples of jurors being punished solely returning wrong verdict. closest jury came in 1917, when jury acquitted 2 teenage boys of arson. boys had confessed @ pre-trial hearing, had entered pleas of not guilty @ trial. home office civil servants suspected difference between pleas explained difference between boys admittance had caused fire, , denial had done maliciously. trial judge either did not consider possibility or not satisfied it. on receiving jury s verdict, told them have been absolutely regardless of oath. these men have pleaded guilty, , evidence of clearest possible nature. none [sic] of fit serve on jury, remain here until end of sessions. foreman, george lathan, considered form of punishment jury, jurors not going permitted serve on more juries, nonetheless required keep attending court or face contempt proceedings. lathan considered tacit form of imprisonment. officials in lord chancellor s office noted while judge s conduct ill-judged , arbitrary, did not, far can see, act justify lord chancellor in removing him bench . home office officials wrote judge, advising him actions impossible home secretary defend constitutional or right , , after several days jurors relieved of duties. home office minutes suggest did not think kind of informal punishment of jurors had returned wrong verdict unheard of.

in 1982, during falklands war, british royal navy sank argentine cruiser, ara general belgrano. 3 years later civil servant (government employee) named clive ponting leaked 2 government documents concerning sinking of cruiser member of parliament (tam dalyell) , subsequently charged breaching section 2 of official secrets act 1911. prosecution in case demanded jury convict ponting had contravened act leaking official information sinking of belgrano during falklands war. main defence, in public interest information made available, rejected on grounds public interest government of day says , jury nevertheless acquitted him, consternation of government. had argued had acted out of duty interests of state ; judge had argued civil servants owed duty government.

united states

in united states, jury nullification first appeared before american revolutionary war, when colonial juries exercised nullification power, principally in maritime cases , cases implicating free speech. jury nullification became common many british prosecutors gave trying maritime cases because conviction seemed hopeless. in pre-civil war era, juries refused convict violations of fugitive slave act. later, during prohibition, juries nullified alcohol control laws, possibly 60% of time. resistance may have contributed adoption of twenty-first amendment repealing prohibition, eighteenth amendment.

in well-known example of jury nullification, @ end of wild bill hickok s trial manslaughter of davis tutt in 1865, judge sempronius boyd gave jury 2 instructions. first instructed jury conviction option under law; instructed them apply unwritten law of fair fight , acquit. hickok acquitted, verdict not popular public.

fugitive slave law

jury nullification practiced in 1850s protest federal fugitive slave act, part of compromise of 1850. act had been passed mollify slave owners south, otherwise threatening secede union. across north, local juries acquitted men accused of violating law. secretary of state daniel webster key supporter of law expressed in famous seventh of march speech. wanted high-profile convictions.

the jury nullifications ruined presidential aspirations , last-ditch efforts find compromise between north , south. webster led prosecution when defendants accused of rescuing shadrach minkins in 1851 boston officials intended return minkins owner; juries convicted none of men. webster tried enforce law extremely unpopular in north, , whig party passed on him again when chose presidential nominee in 1852.

post civil war

white defendants accused of crimes against blacks , other minorities have been acquitted all-white juries, in south, in face of irrefutable evidence.

21st century

in 21st century, many discussions of jury nullification center on drug laws consider unjust either in principle or because seen discriminate against groups. jury nullification advocacy group estimates 3–4% of jury trials involve nullification, , recent rise in hung juries seen being indirect evidence juries have begun consider validity or fairness of laws themselves.

judicial opinion

in 1895 case of sparf v. united states written justice john marshall harlan, united states supreme court held 5 4 trial judge has no responsibility inform jury of right nullify laws. decision, cited, has led common practice united states judges penalize attempts present nullification argument jurors , declare mistrial if such argument has been presented them. in states, jurors struck panel during voir dire if not agree accept correct rulings , instructions of law provided judge.

in recent rulings, courts have continued prohibit informing juries jury nullification. in 1969, fourth circuit decision, u.s. v. moylan, 417 f.2d 1002 (4th cir.1969), court affirmed concept of jury nullification, upheld power of court refuse permit instruction jury effect. in 1972, in united states v. dougherty, 473 f.2d 1113, united states court of appeals district of columbia circuit issued ruling similar moylan affirmed de facto power of jury nullify law upheld denial of defense s chance instruct jury power nullify.

in 1988, sixth circuit upheld jury instruction: there no such thing valid jury nullification. in united states v. thomas (1997), second circuit ruled jurors can removed if there evidence intend nullify law. supreme court has not confronted issue of jury nullification.

in 2017, ninth circuit upheld first 3 sentences of jury s instruction , overruled second half. jury instructions cannot substitute sense of justice, whatever means, duty follow law, whether agree or not. not determine whether law or whether law unjust. cannot task. there no such thing valid jury nullification. violate oath , law if willfully brought verdict contrary law given in case. however, deemed harmless error , affirmed conviction.

state laws

on june 18, 2012, new hampshire passed law explicitly allowing defense attorneys inform juries jury nullification. on october 24, 2014, new hampshire supreme court nullified law, holding wording of statute not allow defense attorneys tell juries can nullify law.