Judge says tech-addled jurors undermine justice

By John Ozimek

Comment After years of complaints that judges may not always be in touch with the modern world, one judge hit back last week by suggesting that younger jury members may be too conditioned by technology to give defendants a fair trial. Worse, they are so used to doing their own research online that they have wrecked several major trials.

The problem, according to Lord Chief Justice, Lord Judge of Draycote is that most young people get their information from the internet. He said: "They are not listening. They are reading.

An even more spectacular debacle occurred in August, when Judge David Hodson abandoned a manslaughter trial at Newcastle Crown Court, after a middle-aged juror turned sleuth and carried out his own investigations. These involved visiting the site of the alleged crime, taking photos, taking measurements of a fence critical to the case and researching his own theories on the internet, before persuading the jury to hand a list of 37 "key questions" to the judge." Read More.

The great debate of the power of juries rages on.

ESSAY
THE ASCENT OF THE ADMINISTRATIVE STATE
AND THE DEMISE OF MERCY
By Rachel E. Barkow

But it is not just legal scholars who have expressed worries about jury nullification because of concerns grounded in administrative law principles. Despite the fact that the Constitution protects jury nullification by making verdicts of acquittal unreviewable under the Double Jeopardy Clause of the Fifth Amendment, courts have sought limits on the jury’s power that roughly track the emergence of the administrative state and the growing prevalence and influence of administrative
law.

Lets take a look at the guidelines that the Sixth Circuit relies on regarding jury instructions.

The jurors have two main duties. First, they must determine from the evidence what the facts are. Second, they must take the law stated in the court's instructions, apply it to the facts and decide whether the facts prove the charge beyond a reasonable doubt. See Sparf v. United States, 156 U.S. 51, 102-107, 15 S.Ct. 273, 39 L.Ed. 343 (1895); Starr v. United States, 153 U.S. 614, 625, 14 S.Ct. 919, 923, 38 L.Ed. 841 (1894).

This is from the same case, the part that the Sixth Circuit ignores.

SPARF AND HANSEN v. UNITED STATES., 15 S. Ct. 273, 156 U.S. 51 (U.S. 01/21/1895)

[1] SUPREME COURT OF THE UNITED STATES

[2] No. 613

[3] 15 S. Ct. 273, 156 U.S. 51, 39 L. Ed. 343, 1895.SCT.40036

[4] decided: January 21, 1895.

[34] In Georgia v. Brailsford, 3 Dall. 1, 4, a case in this court tried by a special jury upon an amicable issue, Chief Justice Jay is reported to have said: "It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take

[ 156 U.S. Page 65]

upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as, on the one hand, it is presumed that juries are best judges of facts, it is, on the other hand, presumable that the courts are the best judges of law. But still both objects are lawfully within your power of decision."

The next case found in the Sixth Circuit Criminal Jury Instructions is:

The jurors have the power to ignore the court's instructions and bring in a not guilty
verdict contrary to the law and the facts. Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920).

The defendant in this case was appealing the judges instructions implied that the jury had no choice but to convict. Here is the decision of the court.

HORNING v. DISTRICT COLUMBIA, 41 S. Ct. 53, 254 U.S. 135 (U.S. 11/22/1920)

[1] SUPREME COURT OF THE UNITED STATES

[2] No. 77

[3] 41 S. Ct. 53, 254 U.S. 135, 65 L. Ed. 185, 1920.SCT.40604

[4] November 22, 1920


The question relates to the charge of the judge. The judge said to the jury that the only question for them to determine was whether they believed the concurrent testimony of the witnesses for the Government and the defendant describing the course of business that we have stated and as to which there was no dispute. Those facts,

[ 254 U.S. Page 138]

he correctly instructed them, constituted an engaging in business in the District of Columbia. This was excepted to and the jury retired. The next day they were recalled to Court and were told that there really was no issue of fact for them to decide; that they were not warranted in capriciously saying that the witnesses for the Government and the defendant were not telling the truth; that the course of dealing constituted a breach of the law; that it was their duty to accept this exposition of the law; that in a criminal case the Court could not peremptorily instruct them to find the defendant guilty but that if the law permitted he would. The Court added that a failure to bring in a verdict could only arise from a flagrant disregard of the evidence, the law, and their obligation as jurors. On an exception being taken the judge repeated that he could not tell them in so many words to find the defendant guilty but that what he said amounted to that; that the facts proved were in accord with the information and that the Court of Appeals had said that that showed a violation of law.

[16] This was not a case of the judge's expressing an opinion upon the evidence, as he would have had a right to do. Graham v. United States, 231 U.S. 474, 480. The facts were not in dispute, and what he did was to say so and to lay down the law applicable to them. In such a case obviously the function of the jury if they do their duty is little more than formal. The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found, and he can do the same none the less when the facts are agreed. If the facts are agreed the judge may state that fact also, and when there is no dispute he may say so although there has been no formal agreement. Perhaps there was a regrettable peremptoriness of tone --

[ 254 U.S. Page 139]

but the jury were allowed the technical right, if it can be called so, to decide against the law and the facts -- and that is all there was left for them after the defendant and his witnesses took the stand. If the defendant suffered any wrong it was purely formal since, as we have said, on the facts admitted there was no doubt of his guilt. Act of February 26, 1919, c. 48, 40 Stat. 1181, amending § 269 of the Judicial Code; Act of March 3, 1911, c. 231, 36 Stat. 1087.

[17] Judgment affirmed.

However, not all the court agreed with this decision.

[18] MR. JUSTICE McREYNOLDS dissents.

[19] MR. JUSTICE BRANDEIS, dissenting.

[20] It has long been the established practice of the federal courts that, even in criminal cases, the presiding judge may comment freely on the evidence and express his opinion whether facts alleged have been proved. Since Sparf v. United States, 156 U.S. 51, it is settled that, even in criminal cases, it is the duty of the jury to apply the law given them by the presiding judge to the facts which they find. But it is still the rule of the federal courts that the jury in criminal cases renders a general verdict on the law and the facts; and that the judge is without power to direct a verdict of guilty although no fact is in dispute. United States v. Taylor, 11 Fed. Rep. 470; Atchison, Topeka & Santa Fe Ry. Co. v. United States, 172 Fed. Rep. 194. What the judge is forbidden to do directly, he may not do by indirection. Peterson v. United States, 213 Fed. Rep. 920. The judge may enlighten the understanding of the jury and thereby influence their judgment; but he may not use undue influence. He may advise; he may persuade; but he may not command or coerce. He does coerce when without convincing the judgment he overcomes the will by the weight of his authority. Compare Hall v. Hall, L.R. 1, P. & D. 481, 482.

[ 254 U.S. Page 140]

The character of the charge in this case is illustrated by the following paragraph:

[21] "In conclusion, I will say to you that a failure by you to bring in a verdict in this case can arise only from a wilful and flagrant disregard of the evidence and the law as I have given it to you, and a violation of your obligation as jurors. . . . Of course, gentlemen of the jury, I cannot tell you, in so many words, to find defendant guilty, but what I say amounts to that."

[22] In my opinion, such a charge is a moral command, and being yielded to, substitutes the will of the judge for the conviction of the jury. The law which in a criminal case forbids a verdict directed "in so many words," forbids such a statement as the above.*fn1

[23] It is said that if the defendant suffered any wrong it was purely formal; and that the error is of such a character as not to afford, since the Act of February 26, 1919, c. 48, 40 Stat. 1181, a basis for reversing the judgment of the lower court. Whether a defendant is found guilty by a jury or is declared to be so by a judge is not, under the Federal Constitution, a mere formality. Blair v. United States, 241 Fed. Rep. 217, 230 .The offence here in question is punishable by imprisonment. Congress would have been powerless to provide for imposing the punishment except upon the verdict of the jury. Callan v. Wilson, 127 U.S. 540; Thompson v. Utah, 170 U.S. 343. I find nothing in the act to indicate that it sought to do so.

[24] Because the presiding judge usurped the province of the jury, I am unable to concur in the judgment of the court.

[25] THE CHIEF JUSTICE and MR. JUSTICE DAY concur in this dissent.

The courts continue to usurp the power of Jury Nullification by refusing to fully inform Jurors of their Power and Duty as the acting body of Government who's authority is above the Judge, Legislators, and even the President.

But they should not be told by the court that they have this power. United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir.), cert. denied, 488 U.S. 832, 109 S.Ct. 89, 102 L.Ed.2d 65 (1988) 1988); United States v. Avery, 717 F.2d 1020, 1027 (6th Cir.1983),cert. denied, 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157 (1984); United States v. Burkhart,501 F.2d 993, 996-997 (6th Cir.1974), cert. denied, 420 U.S. 946, 95 S.Ct. 1326, 43 L.Ed.2d 424(1975).

They should instead be told that it is their duty to accept and apply the law as given tothem by the court. United States v. Avery, supra at 1027.

To learn more about Jury duty at Fully Informed Jury Association web site. You may someday find yourself at the mercy of a jury, woldn't you want them to be fully informed?