Saturday, October 3, 2015

LD Nov/Dec 2015 - Jury Nullification - Introduction


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


It's like deja vu all over again.
-Yogi Berra

Deja Vu

I remember. March/April 2010, "Resolved: In the United States, the principle of jury nullification is a just check on government." The wording of the past resolution and the current wording very strongly clues one in as to what is the purpose of jury nullification; an action a jury ought to take to limit perceived injustice by a government or an unjust law. It also, as one may possibly surmise is one action that a substantial number of judges in the U.S. oppose.  This debate promises to be a good one, just like it was a good debate in 2010. It's like deja vu all over again. Oh, and what really makes me happy about this deja vu? I still have most of my old evidence.


The Language

Let's begin this analysis by looking at the meanings of the words in the resolution. Doing so is necessary for several reasons.  First, it helps the debater to clarify with greater precision, what is the scope of the debate. It is important to understand details, such as who are the actors, what are the actions or truths being proposed and most importantly, for traditional Lincoln Douglas debate, what values are at stake.  Good interpretation promotes good preparedness which leans to meaningful and fruitful clash; the kind of clash of ideas which educates the participants. Second, it serves as a tool to detect potential abuses by the opponent who may be offering alternative interpretations or failing to defend a definition which is often just as abusive as a bad interpretation.

United States Criminal Justice System
I think for the purpose of this debate it is sufficient to treat this as an entire interpretable term rather than break it up into the separate terms of United States, and criminal justice system. Most who are reading this analysis have a common understanding of who or what is the United States and minor differences in interpretation should not be significant in this debate. However, to be clear, there are many criminal justice systems in the United States but that fact also should not impact this debate too much.

The online USLegal dictionary:
Criminal justice system refers to the collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded. The criminal justice system consists of three main parts: (1) law enforcement (police, sheriffs, marshals); (2) adjudication (courts which include judges, prosecutors, defense lawyers); and (3) corrections (prison officials, probation officers, and parole officers). In a criminal justice system, these distinct agencies operate together under the rule of law and are the principal means of maintaining the rule of law within society.

In the United States we find these systems operating at all levels of government, local, state and federal and while there are differences in laws and procedures at each of these levels, there is a hierarchy such that local laws are limited by state laws and state laws are limited by federal laws.  At the top of the hierarchy is the U.S Constitution.

This particular resolution deals specifically with the judicial portion of the U.S. criminal justice system and more precisely, that subset of the judicial system which employs juries to decide the guilt or innocence of defendants.


jury nullification
A jury is group of people sworn to render a decision (a verdict or affirmation of truth) on a questions of fact.  In criminal cases being adjudicated in a court of law, the jury is sworn to listen to facts of the case and render a verdict answering whether of not the charges brought against a defendant are true. The framers of the U.S. Constitution established the right to a trial by jury as a means to check potential abuses by the justice system.

Legal Information Institute:
It was during the Seventeenth Century that the jury emerged as a safeguard for the criminally accused. Thus, in the Eighteenth Century, Blackstone could commemorate the institution as part of a “strong and two–fold barrier . . . between the liberties of the people and the prerogative of the crown” because “the truth of every accusation . . . . [must] be confirmed by the unanimous suffrage of twelve of his equals and neighbors indifferently chosen and superior to all suspicion.” The right was guaranteed in the constitutions of the original 13 States, was guaranteed in the body of the Constitution and in the Sixth Amendment, and the constitution of every State entering the Union thereafter in one form or another protected the right to jury trial in criminal cases. “Those who emigrated to this country from England brought with them this great privilege ‘as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.”’ [ellipses in the original source]

I think most debaters will understand the jury serves to prevent arbitrary prosecution of persons accused of crimes. In other words, the legal standard applied requires the prosecution to prove the defendant is guilty beyond a reasonable doubt and in the U.S., the jury decision must be unanimous. However, as noted above, the jury's true purpose is to serve as a "strong and two-fold barrier" between individual liberties and the prerogative of the government. Thus, the jury can take decisions which are contrary to the evidence and "rule" on the law itself and this is the basis of jury nullification.

Legal Information Institute:
A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness. Jury nullification is a discretionary act, and is not a legally sanctioned function of the jury.  It is considered to be inconsistent with the jury's duty to return a verdict based solely on the law and the facts of the case.  The jury does not have a right to nulification [sic], and counsel is not permitted to present the concept of jury nullification to the jury.  However, jury verdicts of acquittal are unassailable even where the verdict is inconsistent with the weight of the evidence and instruction of the law.

In the U.S. criminal justice system, jury nullification is not a codified right. However, the Supreme Court has upheld jury nullification in specific cases.


ought to
Ought is derived from the root word "owe" which conveys the sense of duty of obligation. As I have said many times on these pages, while ought may be seen as equivalent to the word "should" and there is no real harm to interpreting it that way, ought does lend some validation to affirmative claims we should consider an obligatory, alternative point of view.


used
As a verb, "used" means to be utilized or employed as a means of accomplishing a purpose.


in the face of
Simply put, "in the face of" is an idiomatic expression meaning "when confronted with". In other words, it is a conscious recognition of something confrontational.  The expression is equivalent to saying "when threatened by" or "in opposition to".

perceived
To perceive, is a verb meaning to gain an awareness of something through the senses or to gain awareness of something through an mental evaluation of clues which may or may not be physically detected.  Therefore in the second meaning, a thing may be perceived by deduction or inference.

injustice
We understand injustice to mean "absence of justice".  Commonly in Lincoln Douglas debate it is claimed justice means "giving each her due", so we could interpret injustice as failure to give each her due.  It generally conveys a sense of unfairness or something that is not right.  In the context of a trial employing a jury, an injustice occurs if an innocent person is denied her rights or convicted of a crime for which she is not guilty.


The Stakes

At its most basic, we can interpret this resolution to mean, In the U.S. criminal justice system, juries ought to be allowed to nullify (ignore) the law if they sense it will result in punishment of someone unfairly. But this begs the question, if the jury can choose to ignore the law then what value is there in the law?  So what is at stake in the debate is the right of citizens to defend their freedoms against an abusive or over zealous government and its system of laws versus the supremacy of law as an over-arching principle for maintaining social order and obtaining justice.

Balko (2005);
The first case of jury nullification in British law came in the trial of William Mead and William Penn, the latter of whom would go on to found the province of Pennsylvania. In 1670, the two men were charged in England with unlawful assembly, a law aimed at preventing religions not recognized by the Crown from worshipping. Both almost certainly broke the law, and the judge demanded a guilty verdict. But the jury refused, on the grounds that the law itself was unjust. After repeated refusals, the judge ordered the jury imprisoned. England's highest court eventually ordered the jurors released, establishing into common law the independence and integrity of juries in criminal cases.

Research will uncover other examples of jury nullification is cases involving use of controlled substances, assisted suicide, fugitive slave laws, the Salem Witch Trials, and others.  (Look here to see common examples.) 


Balko, R, (2005), Justice Often Served By Jury Nullification, FoxNews, Aug 1m 2005. Accessed 10/2/2015 at:

Legal Information Institute, Cornell University Law School, online at https://www.law.cornell.edu/. Accessed 10/2/2015 at:

USLegal, Free Legal Dictionary, published online at http://definitions.uslegal.com/, accessed 10/2/2015 at:


26 comments:

  1. Hi! I'm really sorry, but I was wondering if there was a reason why you defined 'perceived' and 'injustice' separately in your definitions? The ncbi also has an article about 'perceived injustice', or google at least pulls it up when 'perceived injustice' is typed together. Is that a viable way of reading the resolution?

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    1. I saw the NCBI definition but felt the context was unsuitable for this resolution. I separated the words because I wanted to reserve the opportunity to expand the definition of injustice if I so choose. I wanted to articulate the difference between the common use of the word as a value in LD (giving each her do) versus the resolution context which deals more with justice in the sense of upholding or denying one's rights. Granted, the difference is subtle, but the difference may be important in some cases. If you find a definition that suits your needs and is not abusive, go with it.

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    2. I do believe astute debaters will use perceived injustice together, with the word perceived guiding the discussion.

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    3. there aren't too many definitions to really help debaters define perceived injustice together .separating the two helps the understanding of what it actually means

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  2. I am confused about how the Aff. and Neg. are different on this case. The examples that I have been shown seem to be the same thing.

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    1. I will be posting Aff and Neg positions soon, but as I said above the supremacy of the law is at stake. Aff argues citizens may choose to ignore laws they perceive as unjust while the Neg will uphold the rule of law. Jury nullification is not a right, meaning it is not strictly legal, but it is a power the jury holds as a consequence of the 5th Amendment forbidding double jeopardy.

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  3. If you dont mind me asking, could you please provide your source for the definition of "perceived"? thank you so much!:)

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    1. I don't mind you asking. This year I have not mentioned sources for definitions because I usually use Merriam-Webster for everything except when I need a more targeted definition. Now I begin with a basic definition and give my own interpretation of the definition. For perceived as awareness gained through the senses, nearly every dictionary will be a source. For perceived as a mental process, it is an interpretation of the definition which defines it as an understanding or belief. I interpret that to mean we understand things by logical processes. I probably was guided in this idea through the definition at vocabulary.com.

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  4. Hi, what are some good values for the Aff. in this case? finding values is the most difficult for me.

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    1. Look at individual liberty, natural rights, or more obviously, justice. Look at this post.

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  5. what are some affirmative thing about the jury nullification and what are some negative ? i would really appreciate if you answer this question. but the way a love your page

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    1. Some ideas for Aff are posted. Click Lincoln-Douglas at the top, find the topic then click Affirmative.

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  6. i am having trouble with the neg side. so far i have bias, and going against the legislature. what else should i use?

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    1. I will not get a chance to post the Neg before Sunday because I am swamped getting my team ready for their first tournament. Therefore, maybe work on 1) It is illegal. or 2) Nullification is the will of a minority imposed upon the majority. This can lead to acquittals for bigots (recall e.g. Emmett Till), jury rebellion, and erosion of democratic values.

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  7. do you have any values I could use as con? I have a few but would like your input

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    1. Unknown: click the Lincoln-Douglas tab near the top of this page. You will see a list of all LD articles on this website. There you will find links to the Aff and Neg for Jury Nullification and you can find an article which discusses Values in LD near the bottom of the list.

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  8. I was wanting to use Governmental Legitimacy as my value for the aff. But I'm kind of stuck on deciding the value criterion, as well as what direction to go with. Please help! Thanks

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    1. First figure out what defines "gov legitimacy". Let's assume you define it as a government which protects nature rights. Now ask yourself, does affirming jury nullification protect natural rights? If you can prove it does, then use protection of natural rights as a criterion.

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    2. I actually do not recommend using "Protection of natural rights" I really like the use of "Natural Law" i feel it is very similair but is a better tie to the resolution and govenmental legitamacy.

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  9. What are some good criterion's for the aff if your value is justice, and your case will be centered around how jury nullification is a check on the government // a form of direct democracy? i am having a very hard time with my criterion for this one...

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  10. I was wondering what value criterion to put in this debate.
    my value is justice as every person deserves justice

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    1. Criteria should not be too difficult. Given a value, say, justice, while looking at your contentions, ask yourself, "according to my case, how does jury nullification uphold justice?" The answer can serve as your criterion. For example, on the Aff your case may preserve government legitimacy or preserve some kind of rights. On the Neg you may preserve the rule of law, preserve or government legitimacy. Any of these can be constructed into a value criterion.

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  11. When you write an LD case on this topic, after you state that you affirm this topic, what can you put in the analysis of the topic?

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