"Malaysia Prime Minister Mahathir Mohamad and the Sultan of Johor are seen in a blue Proton Saga... "When asked whether there is any tension with the sultan, Dr Mahathir said: “No, I don’t see anything because I went to see him and he drove me to the airport. I don’t want to comment on the sultans because if I say anything that is not good then it’s not nice because he is the sultan”"

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Tuesday, January 03, 2012

On Jury Nullification

(in response to Jurors Need to Know That They Can Say No - New York Times)

"I'm uncertain about whether a jury's finding of fact is always conclusive. Certainly, the rule against double jeopardy precludes a second prosecution of the same offence, but the acquittal can be appealed on the basis that the jury's finding of fact are clearly against the weight of the evidence. Awards of damages are the province of juries in Canada, for instance, but can and are revised on appeal. Findings of fact can be vacated and the matter remitted to the jury where inadmissible evidence has been taken into account. In cases like R v Ponting, where the allegation is that the judge has misinterpreted the law, surely the remedy for that is an appeal as well.

At this point then, if the advocacy for jury nullification becomes nothing more than an advocacy for juries to make findings of fact that fly in the face of the evidence, then it more or less amounts to advocating that juries are to act in bad faith. There must be something objectionable about such conduct. Juries making such findings of fact are acting in deliberate dereliction of their duty after all. The power given to (and the duty of) a jury is to find facts based on the evidence, and not by any other means.

Where juries are told that they do not have to do their duty, or can do their duty in a perverse way, can it not be said that the rule of law has been undermined?"


Someone else: "The rule of law seems to be one of those issues in which lawyers, judges and academics have found great difficulty reconciling the conflicting views. I agree that jury nullification may violate a number of principles of the rule of law - but interestingly, the two most popular views seem to be that (1) the rule of law is about procedural justice only, in which case it is merely one of many objectives of the law, and can be compromised for other, more important ones (Joseph Raz), and (2) the rule of law includes substantive as well as procedural justice, so depending on which theory of justice you prefer, jury nullification may respect the rule of law more than strict adherence to procedure (Ronald Dworkin). Unfortunately examples in which the current state of the law flouts one or both conceptions abound. You'd have thought that the law of crime and punishment would have more intellectual consistency than your average roomful of economists, but apparently not."
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