coercion plus contamination equals confession

Ever since the landmark work of Elizabeth Loftus, psychologists have warned of the pernicious effects of implanted false memories. It turns out that a similar process--sometimes unconscious on the part of the perpetrator--can lead to false confessions.

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

Suspects, worn down through persistent interrogation interspersed with facts of the crime (the classic Law and Order-esque "gotcha," one imagines) or even taken to the crime scene, became adept at recounting the "details" of the crime.

Of course, there was perhaps a more important factor: none of the convicted innocents had a lawyer present during the interrogation.

And the truly frightening part:

Proving innocence after a confession, however, is rare. Eight of the defendants in Professor Garrett’s study had actually been cleared by DNA evidence before trial, but the courts convicted them anyway.

This is mind-boggling, given the justice system's overwhelming--and vastly overconfident--faith in DNA evidence to convict defendants, even though it's far more fallible than CSI would have you imagine.

How culpable are the police officers who elicit false confessions?

Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent.

“You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”

Well... that's one of the problems. The other, perhaps worse, is that an innocent is convicted of a crime. "Better that ten of the guilty go free...."

Right?

Google in the courtroom

Eugene Volokh points to a law.com article about one judge's attempt to keep Google out of the courtroom:

Now that New Jersey courtrooms have Wi-Fi capability, trial lawyers with wireless laptops have a distinct edge: the ability to Google prospective jurors at the counsel table.

And an appeals court has given its blessing to the practice, reversing a trial judge who told a lawyer to disconnect lest he gain an unfair advantage.

"That [plaintiff's counsel] had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining 'a level playing field,'" the court said on Aug. 30 in Carino v. Muenzen, M.D., A-5491-08.

"The playing field was, in fact, already 'level' because Internet access was open to both counsel, even if only one of them chose to utilize it."

It was only a matter of time--and as the future lawyers and judges of America (i.e., high school debaters) become increasingly used to (and dependent on) having laptops in their debate rounds, we can expect that trend will only continue.

half-formed thoughts on cyberbullying

A work in progress. Your comments and suggestions are appreciated.

Sticks and stones
May break my bones
But words will never hurt me.


I'm made of rubber,
You're made of glue.
Everything you say
Bounces off me
And sticks to you.

--children's sayings

Recently a reader sent this email:

I'm a long-time reader of your blog. I was hoping that you would blog about cyberbullying laws sometime since they have been a matter of controversy for a while now. Thanks!

I was somewhat stumped. As a teacher who uses the Internet all throughout the curriculum, and for someone who has established a persistent online presence for seven years, I'm ashamed to admit that my perspective on cyberbullying is, at best, half-formed and ad hoc.

Which it shouldn't be, as cyberbullying challenges traditional notions of education, juvenile law, and parenting.

My thoughts were expanded when another reader, Kevin, sent along one an otherwise unrelated email titled "German Civil Rights Fail." (Any insertions or edits are his.)

"Article Five: Freedom of Expression.

(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of repor...ting by means of broadcasts and films shall be guaranteed. **There shall be no censorship.** [Sweet! Censorship = un-Constitutional in Germany.]

(2) **These rights shall find their limits** [Wait a minute! You just promised us CONSTITUTIONALLY that censorship will not happen! What happened?] in the provisions of general laws, in provisions for the protection of young persons, and in the right to **personal honor** [What does this even mean?! It's a violation of civil rights to insult somebody?!]."

GERMAN CIVIL RIGHTS?

FAIL

At first I didn't notice the connection, but there it is: the language of the German constitution provides a perfect framework for understanding the current controversy over cyberbullying. After all, it is a form of speech that threatens the mental and emotional wellbeing of young persons, and is an affront to their personal honor.

But should it be a crime? And, if so, what about free speech?

In one sense, the German constitution is superior to its U.S. counterpart; at least it explicitly notes the limitations on free speech, while in the U.S., we have to rely solely on decades of muddled juriprudence to determine where the boundaries of infringement lie. (Eugene Volokh, discussing a related issue, notes that even the word "infringement" isn't simple.  See also his critique of a new cyberbullying statute.  Legislators definitely run the risk of too broadly defining what constitutes cyberbullying.)

Here in the U.S., as the children's sayings imply, we certainly value personal honor and the sensibilities of the young. We don't want a nation of wimps.  A societally coordinated and aggressive approach to bullying, though, is a fairly recent invention. We leave personal honor to the person, creating a razor-thin line between encouraging mental toughness and blaming the victim--because sometimes words will hurt, and arguing otherwise is a form of denial. (If you disagree, imagine what a bully thinks when told that "words will never hurt.")

Throw this kind of thinking into a culture saturated with technology, which creates new dimensions for bullies.  What happens?

• There are new means of public or private aggression.  Blogs. Forums.  YouTube videos. Text messages.
• There seem to be no natural "times out," given the ubiquity of technology.
• The audience is potentially global, multiplying any humiliations--especially when older folks get in on the act. (Children aren't the only ones who cyberbully, as the Jessi Slaughter incident makes obvious. And if you look up Slaughter's experience, be warned: it's disturbing on multiple levels.)
• Anonymity and the removal from a personal context increase aggression.
• Thanks to Google, cyberbullying's evidence can last a lifetime.  How do you heal when the sting never stops?

Humans live out narratives, selves couched in stories and words.  As we migrate further into the digital hemisphere, words take on more and more importance. Maybe the Germans are on to something.

For further reading: Emily Bazelon's excellent series on the subject over at Slate.

Luke... I might not actually be your father.

Oops:

Imagine receiving the results of a genetic test that suggests that your son is not your son. Was there a mix-up in the maternity ward?

Fortunately, in this case it was a slip-up in the genetics lab contracted by personal genomics company 23andMe to process its customers' samples. But the news that the Californian firm has supplied 96 people with someone else's results will add to the pressure for more regulation of this emerging industry.

When privacy advocates argue that non-felons' DNA should be kept out of government databases, this is one of the crucial reasons why. You can't simply regulate away errors, human or silicon.

everyone's a suspect

Should law enforcement be allowed to expand DNA databases to include non-felons? One of the central questions of the latest NFL resolution is answered with a resounding "no" by Tania Simoncelli of the ACLU, in "Dangerous Excursions: The Case Against Expanding Forensic DNA Databases to Innocent Persons," found in The Journal of Law, Medicine & Ethics, Summer 2006.

Simoncelli argues that first, preserving non-felons' DNA "turns the presumption of innocence on its head," turning anyone in the database into a suspect. Even convicted felons aren't automatically guilty of future crimes. This is anti-democratic in nature, and dangerous in practice.

Second, at least in the American system, institutional safeguards enshrined in the Fourth Amendment would be threatened by DNA databases.

Regardless of whether a DNA bank should be considered beyond the general needs of law enforcement, the proposition that the government's "special needs" outweigh the privacy interests of innocent persons seems beyond the pale, as a matter of Constitutional principle. While it is plausible that the courts could uphold the forcible taking and analysis of DNA of persons arrested on the basis of some diminished expectation of privacy while in confinement, the permanent retention of that DNA cannot be justified on this basis unless a suspect is convicted of a crime.

Beyond 4th Amendment considerations, DNA databases create unique privacy concerns.

Unlike fingerprints - two-dimensional representations of the physical attributes of our fingertips that can only be used for identification - DNA samples can provide insights into personal family relationships, disease predisposition, physical attributes, and ancestry. Such information could be used in sinister ways and may include things the person herself does not wish to know.

Abuse of such a system is highly likely.

[S]pecific cases of abuse of police databases indicate that penalties alone do not sufficiently deter misuse. In 2001, it was revealed that more than ninety known cases of abuse of Michigan's Law Enforcement Information Network had occurred over five years. Abuses included police officers and other law enforcement personnel tapping into the network to obtain home addresses or other background information on love interests and seeking revenge or an upper hand in personal, legal or political conflicts. And while Michigan law clearly indicates that such an abuse qualifies as a misdemeanor, punishable by up to ninety days in jail and a $500 fine upon conviction, only three of the officers were prosecuted for these crimes.

Simoncelli details many practical concerns that are of secondary concern here, given that their impact is utilitarian rather than a matter of violated rights. They include the diminishing returns of an expanded dataset, the possibility of false convictions via planted DNA evidence (the paradoxical result of heightened trust in such evidence), overworked crime labs, untold costs (somewhat mitigated by falling prices), and the necessity of a total-population database to ward off concerns about "racial distortions in our criminal justice system."

In all, the article is well worth reading as a primer on some of the primary arguments in the debate.

Resolved: Compulsory inclusion of non-felons' DNA in any government database is unjust.

The NFL national tournament Lincoln-Douglas debate topic for 2010 has been released:

Resolved: Compulsory inclusion of non-felons' DNA in any government database is unjust.

A couple obvious themes present themselves immediately. Compulsory inclusion might be unjust for violating the right to privacy; DNA contains information about genetic conditions that are immensely personal. Along similar lines, such information is potentially useful for discrimination (a present-day possibility) or identity theft (imagine a future with biometric, DNA-based national IDs), or might lead to "false positives" due to an overly optimistic reliance (a "CSI effect" of sorts) on DNA evidence, which, although a gold standard of positive identification, isn't perfect. Then there's the tyranny consideration, another step toward the slippery slope to an Orwellian nightmare.

On the other hand, the State's security concerns and desire to avoid falsely identifying non-felons might be abetted by a database that clearly distinguishes felon from non. Furthermore, a DNA database could speed up the search to identify criminals--after all, every felon was once a non-felon.

These are just a few initial, scattered thoughts on the subject. As always, more analysis, links and evidence are on the way, and your comments and questions help fuel the discussion.

Added: The inimitable Radley Balko responds to a call for a national database.

Criminal justice interests aren't the only ones worth considering. In Texas, academic researchers collected mitochondrial DNA samples in a secret database. It's important to note that mitochondrial DNA can't be traced to individuals, but one could easily imagine a public health initiative to gather nuclear DNA.

Added 5/2 The ACLU's Tania Simoncelli offers some arguments in favor of the resolution.

Added 6/7: And there's always the possibility of embarrassing errors.

why do we still have a War on Drugs?

Jason Kuznicki on the War on Drugs:

Considered as a whole, the War on Drugs is the single worst violation of liberty perpetrated by our government. Nothing else even comes close.

The War on Drugs imprisons hundreds of thousands for no greater crime than owning a chemical or an herb. It breaks up families. It ends educations. It ends careers. It poisons. It incites murder. It makes citizens mistrust one another and mistrust the police. It robs us all of our dignity, even if we don’t use drugs. It turns the Fourth Amendment into nothing more than a pious fiction....

The most depressing part is that nothing in the above is even remotely news. It was true last April 20, and it will in all likelihood remain true next April 20. These are overwhelmingly self-inflicted wounds. Why, Americans, do we do this to ourselves? And why does pointing it out have so little effect?

Because of inertia. Because of dirty hippies. Because of heavily invested Drug Warriors. Because of special interests and government conspiracies. Because of Doritos. Because of rampant hypocrisy. Because of ignorance, willful or otherwise. Because of misplaced moral concern. Because of... because.

After all, being unreasonable is just that.

LD mailbag: resources, plus jury nullification!

Regarding LD in general, and the jury nullification resolution in particular, a reader writes,

Mr. Anderson,

Hey there! I had a great teacher that ultimately helped me win last year, and I thought I might pass on some ideas and resources that otherwise could be helpful.

As for evidence, I highly recommend looking up the WNDI Debate Camp Files. A Google search of that name will bring up a site that includes a comprehensive brief that is completely free.

Although many won't try to delve into philosophy, the most useful book in my debate career has been Dr. S. E. Frost Jr.'s book The Basic Teachings of the Great Philosophers. The citations are quick and easy explanations over the tough concepts, great for explaining philosophy in a case or rebuttal.

Now for the topic...

The affirmative is quite easy to run on this topic, and I think you have it pretty well covered on the site.

The negative is a harder position to run for sure, but can be really persuasive if the resolution is used to its fullest. A proper definition of democracy is the fulcrum of the position I use, as it preempts the ultimate "Jim Crow" or "Fugitive Slave Act" arguments one is destined to hit. My using the 'principle' part of the resolution, one can say that many of these laws were not in line with the principles of the Constitution, and despite having happened historically, are not applicable under the resolution. Even one can go on to say that because many demographic groups were denied participation in the political system, those laws are also inapplicable, especially in a modern sense.

The negative arguments certainly have to revolve around objectivity, and principles such as equality, order, and democracy. The arguments concerning racism, bigotry, etc., can prove to be fundamentally subversive to a democratic system that appreciates political differentiation. Undermining laws at will can be anarchic. Injecting subjective views of the jurors into the objective system of law (that is legitimized by the very people themselves) is more often to be used for ill than for good in a system that represents the principles it was founded upon.

Just a few thoughts, hopefully they helped. If not, thanks for your time!

And thanks for your thoughts.

the injustice of jury nullification

Is the principle of jury nullification a just check on government power? In an article titled "License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking," found in the June 1997 edition of the Yale Law Journal, Richard St. John answers with an emphatic "no." He situates his analysis in the context of attempts by the FIJA (and similar groups) to make nullification a legally protected right by amending state constitutions. (As it stands, in most jurisdictions, juror instructions make it clear that the jury is to merely sift the facts and apply the law, not judge the merits of the law.)

While making the case against statutory reform, St. John offers several reasons why nullification is unjust. The first: it is patently undemocratic.

Proponents of jury nullification have convincingly argued that nullifying juries make law. Although they would conclude from this that the jury might be understood as a lawmaking body parallel--or even superior--to the legislature,I will argue that this insight demonstrates the crucial and fatal flaw in the case for enactment of the jury nullification power. When legislatures delegate to juries the right to make law, the law becomes not more but less democratically legitimate.

Why is this?

[J]uries can neither represent nor embody the community or its will. Not only do juries fail to reflect an adequate demographic sample of the community, but their voting rules make them minoritarian rather than majoritarian bodies. It is impossible to reform their minoritarian nature without undermining what little confidence we do have in their verdicts' representativeness.

The paradox of supermajorities in all forms, of course, is the same: they tip the scales toward dissenters. St. John also notes that the "minorities" in the jury room are not even necessarily minorities in the wider community, which doubly means that the the mistrial (or, possibly, reduced charge) that results from a hung jury will not reflect the community's wishes.

Of course, this argument doesn't apply to someone who justifies jury nullification on other grounds--or someone who limits jury nullification in principle to a unanimous acquittal.

What, then of the argument that "jury mercy" is a way of reducing government power?

Central to the theory of the "jury veto" is an understanding of nullification as having the potential only to aid the criminal defendant. Although this claim is often made in the abstract, it is also made by those who would seek an open, legislatively enacted form of jury nullification. In order to protect individual liberties, this argument runs, the entire criminal justice system is stacked in favor of the defendant; if the jury, or any other coordinate actor in the process, refuses to convict the defendant, she will be set free. According to one proponent of this view, the jury's exercise of its "power to acquit, notwithstanding overwhelming evidence of guilt... is simply an act of mercy to a particular defendant in a specific case." This definition of nullification as "jury mercy" is not uncommon in the literature. However, the concept is gravely mistaken on three levels. First, on an empirical level, nullifying juries can exercise vengeance as well as mercy; in nearly all recent proposals for nullification, little restraint would be placed on the jury's ability to penalize defendants. Second, on a theoretical level, our criminal justice system serves important ends that would be neglected were guilty defendants to be freed by jury "veto."... Finally, even though we ought to be concerned about the discretion other actors can exercise, additional jury discretion is a dangerous and unsatisfying remedy.

The prohibition of "double jeopardy," the fact that jury deliberations are private, and the fact that jurors cannot be held liable for their verdict, means that juries can act with little accountability.

justice as a human undertaking

Regarding the jury nullification LD resolution, I'd like to share a few more snippets from William Dwyer's In the Hands of the People. (The first installment is found here.)

1. I like the quotes Dwyer uses to preface his work, and, shamelessly, I'll reproduce them here. The first is by John W. Gardner, in Morale, and makes a nice warrant for the value of justice.

Justice is probably the oldest and most universally professed value. Anthropologists and historians are hard put to name a healthy society that has not honored (or professed to honor) some variation of the idea. Nature is unjust, humans are often unjust, and yet we refuse to live in a world without the idea of justice.

The second is by Sir Patrick Devlin, and comes from his lecture titled "Trial by Jury," found in the Hamlyn Lectures.

No tyrant could afford to leave a subject’s freedom in the hands of twelve of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.

2. In his own rhetoric and argument, Dwyer continually emphasizes the human element of justice.

In today's world the word-based trial model is taken for granted. The courtroom puts even our most atrocious acts through the civilizing mill of evidence, analysis, and judgment.... Once the evidence is in, the judge or jury decides what happened, applies the law, and enters judgment. An impartial search for the truth, and a faithful application of the law to the facts, are at the heart of the practice.

We admire this method for its appeal to reason, its fairness, and its fidelity to what has gone before. But these virtues are far from the whole story.... A trial is a civic function, but it is more than that; it is also a ceremony, a ritual, and an exorcism.... [O]ur modern adversary system of justice, with its commitment to the truth, its logic and verbal trappings, its robed judges and elevated benches and incantations of "may it please the court," is a descendant of the ordeal, the magic contest, and the trial by battle. There is more to the law than syllogisms; to serve the living, the process must be filled with life.

Later in the text, Dwyer tells of a case he adjudicated, in which a man confined to prison was charged with six felonies for writing threatening letters to a drug dealer. The man confessed to writing the letters, saying that he was just foolishly blowing off steam, and the jury agreed that the man had been "overcharged" but was clearly guilty. Only the foreman refused to cast a guilty ballot, causing a mistrial that eventually led to a plea bargain with a greatly reduced sentence. From this example, and from a historical survey of classic nullification cases, Dwyer concludes:

Jury mercy has ranged from the noble to the humdrum to the disgraceful. But in the main it has served us well. By defeating unjust prosecutions, by defending the weak against overzealous officaldom, by fending off oppressive uses of the law, jurors have strengthened not just liberty but the rule of law itself--and they still do....

Jury mercy is not to be feared. It is one part of the discretion jurors must use in deciding an endless variety of questions.... Jurors make judgments, and they do so by using not just the law laid out for them by the judge, but their own sense of justice as well. In this way they keep the law legitimately attuned to community values.

support your local jury

If you're studying the March / April jury nullification resolution, you might want to check out William L. Dwyer's In the Hands of the People, a book-length love letter to the American jury. I'm going to post a few things from it, starting with an argument for the epistemic superiority of the jury as a democratic institution.

Think about the legitimate limits on government overreach allowed in most social contract theory: checks and balances, judicial review, sunshine commissions, freedom of speech, an independent press, a bill of rights, elections, protests, and even revolution. Is a jury equal in impact and importance? Absolutely. As Dwyer argues,

If jury trials as a rule produce sounder results than we can count on in elections--which I believe they do--one reason may be the quality of information given to the citizens who must decide. In contrast to the chaos and mendacity of much political campaigning, and to the scattergun delivery of thirty-second television commercials, a jury hears testimony that is kept to the point by an impartial referee, tested by cross-examination, and offered throughout a day. We should be able to learn something valuable from the differences in communication.

With about 1.5 million Americans serving in courtrooms each year, the trial jury achieves a unique dispersal of governmental power. Far from being obsolete, it gains importance as elected officials become more distant from those they represent. When the United States government began, there was one congressman for every 38,000 constituents. Due to population growth, there now is one for every 647,000, a seventeen-fold increase in remoteness; state legislatures have seen a similar change. The jury, by placing decisions directly in the hands of the people, bridges the widening gap between citizens and their government. Our challenge is not just to keep it, but to restore it to full health amid new and difficult conditions.

Dwyer's work was published in 2002, and in the intervening years, a few things have changed. The explosion of news outlets, blogs and social media arguably place governments closer to the citizenry, but at the cost of raising the noise-to-signal ratio. Furthermore, the population has grown, and the recent Supreme Court decision to relax restrictions on corporate electioneering, along with the perpetual growth of K Street lobbying, means that one of the average citizen's most direct influences on government is still through jury service.

Now, this doesn't argue for nullification per se. It does, however, place the jury on its proper footing, as an essential component of a functional free society. We'll save Dwyer's thoughts on nullification for another post.

Updated: And those thoughts are found here.

jury nullification and "parameters of acceptable deviance"

Regarding the jury nullification resolution, the affirmative has to show why the practice is not only a check on government power, but a just check. The intersection of morality and legality becomes quite important for both sides.

In "Law and the Parameters of Acceptable Deviance," found in the Fall 2006 edition of the Journal of Criminal Law and Criminology, Mark Edwards argues that jury nullification shows society's "parameters of acceptable deviance," or PADs. The traditional conception of nullification:

Juries confronted with a defendant charged with conduct that is formally illegal but within PADs may nullify the legally appropriate verdict in favor of the normatively appropriate one. Nullification inspired by acceptable deviance results, in criminal trials, in acquittal despite the jurors' belief beyond a reasonable doubt that the defendant is guilty of the crime. In the civil context, it results in a finding of no liability even though the jurors believe that a preponderance of the evidence demonstrates that the defendant is liable in tort.

(It should be noted that in civil trials, nullifying juries can have their verdicts overturned; in criminal trials, however, an acquittal is final, thanks to laws preventing "double jeopardy.")

Edwards, like most other scholars of nullification, recaps the practice's historically high regard.

[J]ury nullification is commonly credited with sparing some violators of the Fugitive Slave Act, Prohibition, and draft laws during the Vietnam War. In other words, in some times and places, aiding escaped slaves, manufacturing alcohol, and resisting the draft were within PADs though formally illegal. In each case, prosecutors and courts could not or would not accommodate PADs. Negotiation-through-practice had failed to produce a parameter of deviance acceptable to both regulators and the regulated.

Essentially, jurors who nullify value their community's moral standards above its legal standards--even when facing personal risk for doing so.

The strength of their fidelity to normatively acceptable standards is revealed by their willingness to enforce them despite personal risk. Although at common law jurors have been immune from prosecution for voting their consciences, they have sometimes been prosecuted after nullification for violating their jurors' oaths by refusing to adhere to the law.

What kind of laws provoke nullifying acquittals?

Today, nullification resulting in acquittal is thought to occur most commonly in "three-strikes" cases and drug cases. Hannaford-Agor and Hans make a distinction between jurors' concerns about the fairness of the law itself, on the one hand, and the fairness of the outcome of a guilty verdict for the defendant, on the other. This distinction seems particularly important in "three-strikes" cases, which can impose enormous penalties for relatively minor offenses, and in those drug cases where small amounts of drugs can result in long sentences. In such cases, the jury may find the defendant's conduct outside of PADs, but may also find the punishment that will be imposed normatively unacceptable. If the legal penalty is less acceptable than the illegal conduct, juries may vote to acquit despite believing the defendant guilty.

"Mandatory minimums," "zero tolerance" policies, "three-strikes" schemes, and the like all take the context out of account, turning justice into a matter of mere calculation. As moral norms are intuitive, sometimes difficult to warrant or rationalize, no wonder juries might find the law too constricting.

Now we come to the core argument. Proponents of nullification either minimize or exclude examples of nullifications-gone-wrong.

Some scholars argue that unjust acquittals should not be considered acts of nullification. But nullification, on its own terms, is neither just nor unjust. Whether the result is just or unjust, nullification is the product of the same phenomena: juries preferring PADs over law. So, normatively acceptable deviance may include unlawful acts that are also unjust. For example, in some times and places, juries might acquit white supremacist defendants who, beyond a reasonable doubt, had killed or assaulted African-American civil rights workers. Historically, juries may also have nullified the law by acquitting murderous cuckolded husbands, rapists "enticed" by their victims, violent nationalists, and others whose conduct was formally illegal but, by the normative sensibilities of their time and place, within PADs.

Edwards goes a step further than most, however. Rather than focusing solely on nullification-as-acquittal, he looks at the opposite side of the coin.

In addition to just and unjust acquittals, jury nullification may-and perhaps most commonly does-take the form of unjust convictions. In other words, juries may convict a defendant even if they are not convinced of guilt beyond a reasonable doubt, if some other characteristic of the defendant or his conduct is considered unacceptably deviant. Juries may be likely to convict a defendant that they find unacceptably deviant, as opposed to a defendant with whom the jury shares common normative sensibilities, even if the evidence of the particular crime with which the defendant is charged is the same. For example, jurors may be inclined to convict a defendant covered in gang-insignia tattoos, even if the evidence that he committed the crime with which he was charged is not strong. Similarly, juries may be inclined to sanction members of formally legal but normatively unacceptably deviant-religions, or professions, or political organizations. The normatively unacceptable behavior is not illegal, which makes formal enforcement against it impossible. But because the behavior is normatively unacceptable, the community may welcome the opportunity to impose sanctions that formal institutions of enforcement cannot.

Few scholars have considered unjust convictions instances of jury nullification, but they are logically identical to jury nullifications resulting in acquittal: they are the product of jurors preferencing PADs over law. Just or unjust, conviction or acquittal, the phenomenon is the same. Moreover, by excluding cases that result in convictions, scholars ignore the phenomenon of unacceptable compliance and miss what is, quite possibly, the majority of jury nullifications.

Here's where I think Edwards' argument is weakest: even if "unacceptable compliance" and "acceptable deviance" are logically equivalent, our justice system, as mentioned above, has an asymmetry between conviction and acquittal. Convictions can be appealed and overturned, so excessively-punitive juries are less of a theoretical risk to justice.

Overall, Edwards' article is worth reading not only for the sake of his claims--especially as they apply to the Negative side of the resolution--but for its extensive footnotes.

liberty, democracy, and the role of the jury

[Regarding the March/April jury nullification resolution.]


What is the right and proper role of a jury? Proponents of nullification like to point to historical examples, like the Zenger trial, as proof that the practice is legitimate and necessary for a functioning democracy. Not so fast, writes Daniel P. Collins in "Making juries better factfinders," found in the Winter 1997 edition of the Harvard Journal of Law and Public Policy.

As I see it, the most important reason for preserving trial by jury in criminal cases is not to promote democracy or to encourage "appropriate" nullifications; rather, the reason is to promote accurate determinations of guilt. It might be argued that juries are not well able to produce accurate decisions. But a look back at history--around the time the Constitution was adopted--will show that the Framers' belief in the accuracy of jury decisionmaking was one of the primary reasons given for protecting the right to a jury trial.

In the debates over the Constitution, there was repeatedly mentioned a great fear that judges would be biased or, at least, that they might be too idiosyncratic in their decisionmaking. Thus, while not much discussion of the jury provisions appears in Madison's notes of the convention, at one point Elbridge Gerry says that the Constitution should also provide for juries in civil cases in order to avoid against the possibility of corrupt judges. Alexander Hamilton, in Federalist No. 83, argued that by securing a right to jury trial in federal criminal cases the proposed Constitution provided for the surest defense against "the great engines of judicial despotism," which were "arbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions." An anonymous pamphleteer, during the course of the debates on ratification, had the following to say: "The Chief Magistrate... of a republic, is as liable to personal prejudice, and to passion, as any King in Europe; and might prosecute a bold writer, or any other person, who had become obnoxious to their resentment, with as much violence and rigour." And Richard Henry Lee remarked that if the administration of justice be "entirely entrusted to the magistracy, a select body of men, and those generally selected by... such as enjoy the highest offices of the state, these decisions in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity."

With all due respect to judges, it thus seems clear that the Framers were concerned that an individual judge might not fairly and accurately weigh the evidence in a case. By contrast, a jury was thought to reflect the common sense of the community and thus would not suffer from the biases or idiosyncracies [sic] of an individual judge. As Jefferson put it:

In truth, it is better to toss up cross and pile [heads or tails] in a cause than to refer it to a judge whose mind is warped by any motive whatever, in that particular case. But the common sense of twelve honest men gives still a better chance of just decision than the hazard of cross and pile.

...And a letter, written by one of the convention delegates from Georgia, puts the point this way:

As to trial by jury in criminal cases, it is right, it is just, perhaps it is indispensable,-the life of a citizen ought not to depend on the fiat of a single person. Prejudice, resentment, and partiality, are among the weaknesses of human nature, and are apt to pervert the judgment of the greatest and best of men.

Indeed, the United States Supreme Court, in its cases discussing the nature of the right to a jury trial, has tended to emphasize the jury's role as an impartial factfinder. In a civil case from the nineteenth century, the Court stated that "[i]t is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge."

For every Affirmative arguing that the jury is an instrument of democracy, the Negative can respond by arguing that it's meant to protect individual liberty. In a criminal trial, we err on the side of caution--"innocent until proven guilty"--because we fear punishing the innocent more than letting the guilty go free. And, as Timothy Sandefur writes,

...the Progressivist interpretation... sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy.

Of course, this argument, in the hands of a capable Affirmative, might be the foundation of an individual rights-based case.

a "process view" of jury nullification

Concerning the March/April jury nullification resolution, Nancy S. Marder's "The Myth of the Nullifying Jury, " found in the Spring 1999 edition of the Northwestern University Law Review, is a must-read. The article, which runs over 80 pages, is too large to summarize entirely. Here's a quick rundown.

First, Marder sets out three types of jury nullification.

First, a jury may nullify to avoid applying a law to a particular defendant. Second, a jury may nullify to avoid applying a law that it regards as bad. Third, a jury may nullify as a response to social conditions.

Second, Marder distinguishes the two competing views of jurors' responsibility to the law. In the first, which Marder calls the "conventional view,"

...the jury is supposed to find facts and apply the law. In some cases, this might be a mechanical operation; in others, the jury might have to work harder to decipher ambiguous terms. However, in both cases, the jury is supposed to apply the law consistent with the legislature's words and the judge's instructions. To the extent the jury does more than this, it is intruding upon the legislature's or judge's respective roles. This conception of the jury exists more in theory than in practice, but the theory has proven compelling to both judges and some academics, and it is this theory of the jury that judges convey to jurors throughout the trial.

Marder goes to great lengths to deconstruct this view, and the way it essentially dehumanizes the participants, ideally making them into fact-finding robots, dispassionate and utterly objective.

What is the alternative? A "process view," which situates the jury alongside the judge as an interpreter of the law.

This view recognizes that the jury does more than find facts or apply the law; inherent in all of the jury's activities is an interpretive role. The jury engages in interpretation whenever it is asked to find facts or apply a legal standard that is vague or ambiguous. In addition to its interpretive role, the jury also plays a political role; it provides feedback to other branches of government about when they are overstepping their own roles.

The implications are fairly straightforward. The "conventional view" tracks strongly with the Negative's position that jury nullification is unjust.

Under a conventional view of the jury, the three situations in which nullification can occur are all causes for concern. In each, the jury is usurping the responsibilities of another branch. The conventional account of the jury means that any time the jury does more than find facts or apply law, such as nullify, it is doing something harmful. The myth of the nullifying jury, as told by proponents of the conventional view, is that nullification is always harmful.

The "process view," on the other hand, squares with the Affirmative's advocacy.

Under a process view, however, the jury does more than just find facts and apply law; it also plays interpretive and political roles. Under this broader conception of the jury's roles, the three situations when nullification occurs provide more benefits than harms. In all three, though perhaps to a lesser extent in the third, nullification is consistent with the jury's broad role, and nullification enables the jury to provide valuable feedback to the legislature, executive, or judiciary.

There's much more that can be said about the merits of Marder's analysis. Luckily for you, the article is available in its entirety online.

Radley Balko on your obligation to nullify

When might jurors have an obligation to nullify? Radley Balko, libertarian activist and journalist extraordinaire, sums up the case for jury nullification in a classic article worth quoting extensively:

So why do judges continue to get jury nullification wrong? Many point to an 1895 case in which the Supreme Court ruled that judges aren't obligated to tell jurors of their power to nullify bad law. Some have wrongly interpreted that decision to invalidate the doctrine of jury nullification altogether. They're mistaken.

In fact, the Supreme Court has since repeatedly upheld the doctrine of nullification. In 1952, for example, the Court found that "juries are not bound by what seems inescapable logic to judges." And in 1972, that "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge."

Indeed, Americans can be proud of our history of boldly and valiantly standing up to unjust laws (if not so proud of the laws themselves). There are multiple cases of jurors refusing to convict violators of the Alien and Sedition Act (search), the Fugitive Slave Act (search), and alcohol prohibition laws, among others.

Now that the Supreme Court ruled that federal prosecutors can continue to arrest medical marijuana patients, and given the Drug Enforcement Administration's continued prosecution of pain patients and the doctors who treat them, we're likely to see more outrages like those perpetrated against Ed Rosenthal and Richard Paey.

A common question I get from people disturbed by these kinds of cases is, "What can we do?" Well, here's one thing the average citizen can do: Serve when you're called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he's guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with "not guilty," no matter what the judge, the prosecutor, or the evidence says.

Not only is this your right as a juror, some would say it's your obligation.

Whether nullification is truly a right is debatable, but its existence as a historical (and legitimate) power of juries is unquestionable. But even if nullification were illegal, it could be justified as a form of civil disobedience. After all, why be complicit in the punishment of an innocent, or the disproportionate punishment of the guilty? Throw mandatory minimum sentences into the works, and you can create an even stronger argument for informed jurists with the power to nullify unjust laws.

the case against nullification

[Regarding the March/April jury nullification topic.]

As furnished by a three-judge panel in the 2nd Circuit Court of Appeals, U.S. v. Thomas No. 95-1337.

We take this occasion to restate some basic principles regarding the character of our jury system. Nullification is, by definition, a violation of a juror's oath to apply the law as instructed by the court--in the words of the standard oath administered to jurors in the federal courts, to "render a true verdict according to the law and the evidence." FEDERAL JUDICIAL CENTER, BENCHBOOK FOR U.S. DISTRICT COURT JUDGES 225 (4th ed. 1996) (emphasis supplied). [8] We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent. Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court's instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

We are mindful that the term "nullification" can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws. We recognize, too, that nullification may at times manifest itself as a form of civil disobedience that some may regard as tolerable. The case of John Peter Zenger, the publisher of the New York Weekly Journal acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws, are perhaps our country's most renowned examples of "benevolent" nullification. See United States v. Dougherty , 473 F.2d 1113, 1130 (D.C. Cir. 1972) (Leventhal, J. ); see also David Farnham, Jury Nullification: History Proves It's Not a New Idea , CRIM. JUST., Winter 1997, at 4, 6-7.

More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, "introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions." U.S. ex rel. McCann v. Adams , 126 F.2d 774, 776 (2d Cir.), rev'd on other grounds , 317 U.S. 269 (1942). This is so because, as Judge Hand explained, "[t]he individual can forfeit his liberty--to say nothing of his life--only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. . . . [S]ince if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove . . . ." Id. at 775-76.

As courts have long recognized, several features of our jury trial system act to protect the jury's power to acquit, regardless of the evidence, when the prosecution's case meets with the jury's "moral[] disapprov[al]." Since the famous opinion in Bushell's Case , 124 Eng. Rep. 1006 (C.P. 1670), freeing a member of the jury arrested for voting to acquit William Penn against the weight of the evidence, nullifying jurors have been protected from being called to account for their verdicts. Moreover, and in addition to the courts' duty to safeguard the secrecy of the jury deliberation room (discussed in greater detail below), the several rules protecting the unassailability of jury verdicts of acquittal--even where these verdicts are inconsistent with other verdicts rendered by the same jury in the same case, United States v. Carbone , 378 F.2d 420, 423 (2d Cir.) (Friendly, J. ) (recognizing link between upholding inconsistent verdicts and protecting juries' power of lenity), cert. denied , 389 U.S. 914 (1967)--serve to "permit[] juries to acquit out of compassion or compromise or because of their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." Standefer v. United States , 447 U.S. 10, 22 (1980) (internal quotation marks omitted).

But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that--a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent. Indeed, although nullification has a long history in the Anglo-American legal system, see Dougherty , 473 F.2d at 1130-33; Farnham, supra , at 4, and the federal courts have long noted the de facto power of a jury to render general verdicts "in the teeth of both law and facts," Horning v. District of Columbia , 254 U.S. 135, 138 (1920); see, e.g. , United States v. Trujillo , 714 F.2d 102, 105-06 (11th Cir. 1983), courts have consistently recognized that jurors have no right to nullify. See, e.g. , United States v. Kerley , 838 F.2d 932, 938 (7th Cir. 1988) ("[J]ury nullification is just a power, not also a right . . . ."); see also Sparf v. United States , 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them"). As a panel of the Court of Appeals for the District of Columbia Circuit--composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg--explained:

A jury has no more " right " to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant "guilty," and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

United States v. Washington , 705 F.2d 489, 494 (D.C. Cir. 1983) (per curiam) (emphasis in original). Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to "apply the law as interpreted by the court." United States v. Boardman , 419 F.2d 110, 116 (1st Cir. 1969), cert. denied , 397 U.S. 991 (1970). [9]

Resolved: In the United States, the principle of jury nullification is a just check on government.

The March / April Lincoln Douglas debate topic has been released:

Resolved: In the United States, the principle of jury nullification is a just check on government.

I have high hopes for this topic. Jury nullification is a subject that most people know very little about. There's robust debate among legal experts and constitutional scholars as to its justification, and, consequently, a large and interesting literature on the matter.

Jury nullification, in brief, is when a jury acquits a defendant because, in the jury's view, she has been arrested, charged, and tried for breaking an unjust law--regardless of the evidence against her. It raises all sorts of interesting questions.

What democratic or social contractarian principles support or discourage nullification? What is the purpose of a jury--and why do we have jury trials? Do juries understand the law well enough to judge its validity? Is nullification an actual right of juries? If more juries nullified, what would the effect be? Should judges notify juries of their right to nullify?

And, more specific to the resolution: What particularly American needs, issues, and principles, Constitutional or otherwise, support or discourage nullification? Where does it sit in the larger framework of "checks and balances?" Historically, how has nullification worked out?

As you're researching, you'll see that jury nullification in the present-day United States often arises in the context of the War on Drugs. (See here, with additional commentary here, for example.)

Watch this space for further articles and analysis. As always, it's your questions and comments that make this space a truly valuable resource for LD debaters everywhere.

Also, if you're new to LD, I have some articles just for beginners. Click the link and start scrolling.


Added 2/1: The Second Circuit Court of Appeals makes the case against jury nullification. The skinny: it's a power, but not a right, and it ain't right.

Added 2/2: Radley Balko argues that, from time to time, it might be your moral obligation to nullify.

Added 2/11: An initial list of value and criterion pairs.

Added 2/15: An article that takes a "process view" of the jury's responsibility, with implications for the Affirmative.

Added 2/18: A look at the historical role of juries, slanted toward the Negative.

Added 2/21: When juries nullify, they show fidelity to "parameters of acceptable deviance."

Added 2/22: Why juries are an essential component in a democratic society. A brief look at the work of William L. Dwyer.

Added 2/28: A robust theory of public engagement seems like it could provide a solid framework for the Aff. The broader civic importance of juries cannot be understated.

Also, I take another look at William L. Dwyer's work, especially his humanistic view of justice.

Added 3/5: More reasons nullification is unjust.

Added 3/18: A reader sends ideas for resources, plus some thoughts on the Neg.

the franchise for felons?

A little over a year ago, I blogged about an LD topic that led to quite interesting debates: whether felons should have the right to vote. In Washington, if an appeals court ruling holds up, they soon may.

The ruling, handed down Tuesday by a three-judge panel of the 9th U.S. Circuit Court of Appeals in Seattle, found that Washington's criminal-justice system was so "infected" with racial discrimination that a ban on felon voting violated civil-rights protections.

The state hoped to have the case heard during the U.S. Supreme Court's fall session, McKenna told reporters at a hastily arranged news conference at Seattle-Tacoma International Airport.

Meanwhile, the state also plans to file by next week a motion to stall enactment of the court ruling. McKenna said courts routinely grant such motions if a case is being appealed to the U.S. Supreme Court.

I used to think it was obvious that felons should be denied the franchise--after all, they'd abused the law, so why let them shape it?--but in a democracy, the law isn't perfect, and it's even possible that laws can be shaped with disenfranchisement in mind. At any rate, Vermont and Maine, the two states that allow felons to vote, haven't fallen into the sea... yet.

the expanding waistline of public health law

Another in a series of posts covering the Nov/Dec immunization resolution.

Public health law seems to want to gobble up more and more legal categories, if Mark Hall, a law professor at Wake Forest, is correct. In an article titled "The scope and limits of public health law," found in the Summer 2003 edition of Perspectives in Biology and Medicine,, Hall describes, through anecdote and argument, how public health law is perpetually expanding in influence.

First, Hall distinguishes health care law from public health law, and what makes the latter inherently power-hungry.

Public health law is about enforcing government efforts to promote health. It starts with the assumption that public authority is plenary* and sets restraints on this authority only it if invades fundamental interests or is demonstrably unbalanced or excessive. Under public health law, the presumptions are all in favor of intervention, whereas under health care law, the presumptions are all in favor of privacy. Public health law is not troubled by making vaccinations mandatory, despite possible harm from side effects that may greatly outweigh the benefits of vaccination to any one individual (due to an individual's ability to free ride on the "herd immunity" of the community), nor is public health law troubled by requiring that more potent and riskier forms of a vaccine be used, even though the enhanced benefits accrue to people other than those who take on the risk.

*Absolute, unqualified.

This is the obvious first prong of a potential Neg strategy: pointing out that "public health concerns" are coldly utilitarian, and woe betide the unfortunate soul who is forced to take one for the team.

Of course, the Aff will argue that not only are the rewards worth the risks, but that the very nature of the problem demands compulsion. Hall again:

The classic subjects of public health law are communicable diseases, personal hygiene, sanitary water and sewer systems, safe food, and injury prevention. These disparate situations all involve significant collective action problems, meaning that individuals acting in their own self-interest, even if fully informed and rational, will not effectively address the problem because they do not internalize some of the major costs or benefits of action or non-action, or for other reasons a centralized response is much more cost-effective.... Identifying and eliminating the source of contagion for a communicable disease requires more effort and cost than any one individual or small group is likely to undertake. A public agency is necessary to garner the resources needed for collective action and to wield the authority for coercive restrictions on liberty or property.

But the Negative isn't done yet; the second prong of the argument regards the larger risk of allowing public health advocates ever-increasing power, which has

...a pervasive effect on public health officials' sense of what they are entitled to do and of the tools that are available to address a public health problem. The uncompromising authoritarian and utilitarian public health perspective... is intensely ends-oriented, which tends to ingrain the following habit of thought: once having identified a causal connection to a widespread health problem, action is necessary to eradicate the cause and eliminate the problem at its source, and it falls within the authority of public health or other government officials to take the necessary actions. The necessary actions are those that produce the desired results. Public health officials may start with less intrusive, more innocuous measures, such as information, education, or taxation, but if these fail, then the case is even stronger for pursuing a panoply of more aggressive and coercive strategies, including mandates and bans, closures and seizures, quarantine, and criminal sanctions. The metaphors of public health strategy are war-like. Its rhetoric is to attack, conquer, and eradicate, rather than to exercise prudence, balance, and restraint.

As the saying goes, "desperate times demand desperate measures." The problem is the tendency to see desperation in any risk, and to trample over individual needs, desires, or rights in the process. As problems like crime or poverty are cast in terms of public health, we risk going beyond the Nanny State to a form of medicalized tyranny.

the tensions inherent in public health law

The November/December resolution throws light on a growing area of legal interest: public health. In "Mapping the Scope and Opportunities for Public Health Law in Liberal Democracies," found in The Journal of Law, Medicine, and Ethics, Winter 2007, Roger Magnusson, a law professor at the University of Sydney, notes (among other things) the tensions in contemporary public health law.

The first, as always, is the tension between proper government action and individual rights:

Lawrence Gostin points out that the protection of the public's health is necessarily a public function that should also be regarded as a duty of government. Discharge of that duty carries "intrinsic and instrumental value for individuals, communities, and entire nations." At the same time, public health law is that body of law which - in a liberal democracy - keeps the state on a short leash, and there is considerable resistance to lengthening it. At the same time, in one of many contradictions in American law, Nan Hunter argues that this is precisely what is occurring as public health and national security have moved closer together to meet the threat of bioterrorism and pandemic influenza.

The "national security" angle is one that affirmatives should explore. The resolution doesn't specify who would be receiving compulsory immunizations; the Negative, presumably, would have to defend the right of medical workers and soldiers (among others) to refuse immunization, even in a crisis.

However, an important Negative consideration is the tension between wider and narrower conceptions of just what constitutes "public health concerns"--and the propensity for the debate to expand into the international arena.

The health and human rights movement provides a further example of public health law expanding to embrace, in this case, global human rights norms and laws, exploring the potential for the promotion or neglect of global norms to enhance or harm the health of populations. The usual criticisms of these approaches is that they turn "life, the universe and everything" into a subdivision of health. In Mark Rothstein's words, "just because war, crime, hunger, poverty, illiteracy, homelessness and human rights abuses interfere with the health of individuals and population does not mean that eliminating these conditions is part of the mission of public health."

The effect of such a broad definition is not only to increase government overreach, but to insulate the government from criticism, since "public health" is a powerful way to frame policies that might otherwise be seen as the normal risks of everyday life, accepted in a free society. Furthermore, globalization puts the drafting and enacting of such policies out of the reach of citizens within any given nation. Thus, from a social contract perspective, a widening "public health" definition is doubly a menace to individual rights and governmental legitimacy.