Jury Nullification, Voir Dire, and Honorable Lying
Julian Sanchez had the chance to put his ethics to the test Wednesday. He was in the jury pool for a non-violent drug case and got this question in the voir dire process:
Number Nine: Do you have strong feelings about drugs or drug dealing that might prevent you from objectively applying the law to the facts of the case? [She pauses, and then, as an afterthought] … or about the drug laws, I should add.”
He answered, quite honestly, that he did. And how.
I’m not remotely sure that was the right thing to do. I suppose I surprised myself: I’ve got enough residual respect for the American legal system, even when it acts in the service of perverse laws, that I felt uncomfortable breaking a juror’s oath, for all the best reasons.
Radley Balko contends that “Jury nullification is a right — perhaps even an obligation. Unfortunately, we’ve let prosecutors and courts effectively make it a crime.”
Matt Yglesias agrees. “If you’re in a jury pool and you have strong moral convictions that would prevent you from sentencing a non-violent drug offender to prison or a murderer to execution, it’s not only permissable to dissemble about this fact in order to get on the jury, I think it’s obligatory to do so.” He then provides a brief history of the jury system and the views of the Founders.
I agree with all three on public policy grounds that most non-violent drug offenses should be striken from the books and subscribe in theory to the right of a jury to decide that the application of a particular law to a particular person in a particular set of circumstances is unjust. Of course, belief that jury nullification ought to be permissible does not automatically confer a right, let alone a duty, to violate one’s oath. In the main, I tend to think that it does not.
The deontology – teleology/consequentialism debate (and whether they are even different things) has been well hashed out and I certainly have nothing new to add, let alone in a discussion with philosophy majors. Still, the premise of our system of justice is that men are presumed to be bound by their word. Undermining that principle strikes me as more damaging than having a jury pool comprised only of people willing to enforce the law as written.
Further, lies beget lies. If it’s permissible to lie in voir dire because one believes the greater good is in letting a person accused of an act that should not justly be a crime go free, then what about the other questions? Perhaps one feels strongly that all gang bangers, drug dealers, black people, or some other group deserve to be in jail. Or that the police and prosecutor are always the good guys. Or that reasonable doubt is just too high a standard.
There are other ways to change the law without undermining the core principles of the jury system. We live in a free society where the people change rules that they find unjust. But not as individuals.