From: mnemonic@eff.org (Mike Godwin)
Subject: Re: Jury Nullification (was: Killing in defense of possessions?)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Tue, 15 Sep 1992 21:12:06 GMT

In article <1992Sep14.211128.29817@newsgate.sps.mot.com>
titmas@chdasic.sps.mot.  com (Eric Titmas) writes:


>Mainly we have a semantic argument where you (in my opinion) use an
overly restrictive
>definition.

Perhaps it seems overly restrictive because it is not grounded in what
I might wish to be the case, but is instead grounded in the actual law
concerning jury nullification.

>  Not worth pursuing that.  But I'll select the part where you seem to
>be relunctant to admit error.  Trust me,  it's not so bad to admit error.

I believe this is so, but I think it is you who made the error here.

Apparently, the phrase that confused you is the following:

   "to rely only on the facts and law as presented in the trial."

It's a phrase I juxtaposed with the statement that the issue of a juror's
not using her own experience as evidence is not the same issue as
jury nullification.

I don't see what's so hard about this. Perhaps if I repeat myself
once more: a juror may or may not violate her oath and consider
her personal experience as evidence, along with the evidence presented at
trial. If she does so, she'll be violating her oath. Since a label
would probably help your keeping this distinction clear, let's call it the
No Extra-Trial Evidence Rule. (There's a corresponding No Extra-Trial Law
Rule, of course.)

Jury nullification, as I have said more than once, what we call an
occasion in which a jury votes to acquit even when the law and facts,
strictly applied, would seem to require a conviction. Let's call this
phenomenon Jury Nullification.

Now, the point I made in my original posting was simply this: breaking the
No Extra-Trial Evidence Rule is not the same thing as Jury Nullification.

Want proof? Simple. It's easy to imagine an instance in which there is
Jury Nullification without a breach of the No Extra-Trial Evidence Rule:
jurors could limit their consideration to the evidence presented at
trial--evidence that, taken on its face, would seem to demand a
conviction--and still vote to acquit.

Similarly, it's easy to imagine an instance in which there is a breach
of the No Extra-Trial Evidence Rule without Jury Nullification: jurors
could consider facts they know from their own experience in arriving at
a *conviction*.

As a matter of logic, the two notions are distinct.

>But the quote (from your original posting) is facts _AND LAW_.  I put
>quote marks around it and you've refused (twice) to notice what you've
written.

I haven't "refused" any such thing. Believe me, if you had made your point
more clearly, I'd have answered it earlier. It has taken me until now to
deduce (I think) what the source of your confusion is, and to restate the
point I made in terms clear enough to satisfy almost anyone.

>I'm talking about whether the jury should rely only on the law as
presented at trial.
>It's in your original posting.  That's why I asked you last time to
re-read it.
  Pause to
>think before you post please.

You seem to insist that my trouble with your posting has to do with my
reading. Do you suppose that it could have something to do with either
your writing or your understanding of the issues?

>The jury then determines what is fact.  A juror who
>thinks it's his duty to judge the law (my definition of jury
nullification) could
>weigh the evidence in a different manner.

I didn't know we were discussing *your* definition of jury nullification.
I insist on limiting *my* discussions to the actual definition, which I
included in the quotation from LaFave and Israel.

>Nowhere did I mention the juror using his
>own evidence.

Right. And yet it was this very issue that *I* was addressing in the
posting
to which you first chose to respond. It suggests that you didn't
understand what I was talking about.

>And as long as we're into semantic misunderstandings let's clear them up.
>Mike:
>  jury nullification: jury acquits even though the law and the evidence
should
lead to convivtion.
>  facts and evidence: synonyms

Well, you're right on how I define "jury nullification." That's one out of
three, I guess.

>Eric:
>  jury nullification:  the juror judges the law and whether it's proper
to apply the law in _EVERY_
>      instance he is asked.
>  evidence: what is presented to the jury in sworn testimony and physical
exhibits.
>  facts:  what the jury determines to be the truth.


If the point you're trying to make here is that I should use your special
definitions rather than the normal ones, I simply refuse. Your definitions
of both  "jury nullification" and "evidence" are not the accepted ones
in legal practice. (For example, there may well be evidence that it is
*never* presented to the jury--such as evidence that is ruled
inadmissible.)



--Mike


-- 
Mike Godwin,    |"The meeting of two personalities is like the contact 
mnemonic@eff.org| of two chemical substances: if there is any reaction, 
(617) 864-0665  | both are transformed."
EFF, Cambridge  |                           --Carl Jung 
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