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The United States ought to make jury nullification illegal.

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Voting Style: Open Point System: 7 Point
Started: 10/17/2012 Category: Politics
Updated: 5 years ago Status: Post Voting Period
Viewed: 3,955 times Debate No: 26304
Debate Rounds (4)
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I affirm the resolution "The United States ought to make jury nullification illegal."

The inherent plan text of the resolution, then, is to overturn the Supreme Court decision made in Sparf v. US, wherein it was declared jurors have the right to nullify in court cases, but judges and lawyers do not have to tell them they have this right. This has made nullification effectively illegal, since so few know about it; it is the affirmative advocacy that the Supreme Court ought to come right out and declare this action unconstitutional, and thereby illegal.

The standard I wish to uphold throughout this debate is increasing objectivity in law, i.e. amping up the number of checks within the system. Objectivity is inseparable from law enforcement because law enforcement in a country like the United States must be universal. In the US"s founding documents, namely the Constitution, juries are described as "impartial" agents of law who bestow objective sentences to criminals. Jan R. Sieckmann explains,

"The objectivity of law is a classical topic of legal philosophy, closely related to issues of the legitimacy of law and of adjudication. Objectivity of law in first line means that it is a normative order which is the same for everyone, independently of anyone's subjective attitudes. Accordingly, legal statements may be true or false, and are not merely expressions of subjective views. Law may also be called objective in the sense that it is neutral against different persons, groups or interests. The objective character of law is essential to the function of law to constitute a normative order for a society as a whole, that is a set of common norms binding on all its addressees. With no objective existence law could not fulfill this function, and without neutrality it would fulfill it badly. In this respect, there seems to be no doubt that law is objective in its nature and should be objective in its content and procedures. This holds true notwithstanding the fact that the requirement of objectivity in practice will not always be fulfilled."

The thesis and sole contention of my position is that jury nullification is not an objective procedure, and as such it cannot be used as a just check on government.

Although not all jurors are unintelligent or uniformed, all jurors come from different backgrounds and carry different beliefs about many laws. All jurors will have biases that will either play a slight or significant role in the decision they render in a criminal case. With the power of jury nullification, however, jurors now have the ability to put their opinion in practice. While a juror"s opinion might not be bad or possibly have a slight degree of truth to it, when a jury acts upon an opinion of twelve people and makes it into societal law they are not acting objectively. The United States Court of Appeals writes,

"More generally, the very institution of trial by jury in a criminal case, as Judge Learned Hand observed, "[Jury nullification] 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."

Jury nullification is a fleeting doctrine of law; rulings come and go, and change at the whim of the group of twelve randomly selected people. Furthermore, what the Court of Appeals establishes here is that if jury nullification were used as a check on government, the jury itself would not be able to be checked, insofar as being a juror is only a temporary position. Thus, because the very institution of a jury is fleeting, if a jury were to change a law entirely and subjectively, they would not be accounted for.

The Constitution would also be violated in this regard; the Constitution guarantees due process under an objective set of laws, but, if nullification were in place, some criminals would be getting due process under existing norms, while others would not be getting due process; they would be getting an entirely new ruling. Eric J. Haynie writes,

"A second and related reason courts refuse nullification instructions is that they would frustrate[s] due process.(94) As the venerable Latin maxim nullum crimen sine lege, nulla poena sine lege provides, there shall be "no crime without law, nor punishment without law."(95) This maxim rings true today in the constitutional due process requirement that criminal liability and punishment be based only "upon a prior legislative enactment of a prohibition expressed with adequate precision and clarity."(96) As the Supreme Court has stated, "[l]iving under a rule of law entails various suppositions, one of which is that [all persons] are entitled to be informed as to what the State commands or forbids."(97) By affirmatively authorizing juries to assign moral blame inconsistent with the law, nullification instructions confuse juries and increase the odds that a defendant will be convicted of conduct he is not on notice to avoid.(98)

"Nullification instructions also frustrate due process by thwarting a defendant's "fundamental right" to a fair, impartial trial by jury.(99) The Sixth Amendment(100) guarantees every criminal defendant a trial based exclusively on the evidence of record,(101) in accordance with the laws,(102) and free from outside influences.(103) By making the jury the "finder of law" as well as fact, however, nullification instructions encroach upon the promise of due process. For what better way to ensure a verdict outside the law than to instruct jurors that they may ignore it."

Moreover, the way the jury comes to a verdict would be further exacerbated. If the jury were to nullify a law, how they arrived at that conclusion cannot be objectively determined because juries do not disclose their decisions. Andrew Leipold writes,

"Because juries almost never explain their verdicts, it is impossible to say how often nullification occurs. Our inability to determine when and why it does also means that we do not know how often juries use this power for good ends rather than evil ones. For every case where a jury acts morally and shows mercy, there may be another where a jury acquits because of hatred toward the victim or favoritism to the defendant. It takes strong faith in human nature to support a doctrine like jury nullification, knowing that the decision to set someone free can be made on a whim or based on prejudice."

For all these reasons, I support the resolution.


Thank you for issuing this debate.

Before we start, the Burden of Proof needs to be established in this debate, and that the BOP is on PRO here. He has the obligation to provide sufficient warrant to support his stance on the issue. PRO is insisiting in his claim that the nullification conception should be illegal. My position is to defend the concept and negate PRO's contentions whilst arguing the continuation of the legalization of the jury's right to nullify.


RE: Overturning Sparf v. United States

PRO seems to be confused, because Sparf v. United States only ruled on the requirement of judges on informing Jury Nullification. So by overturning Sparf v. United States, then the only possible outcome is that judges will be required to inform jurors of their de facto nullification right.

But I want to point out that Sparf v. United States already compromises the issue here. Though Jury Nullification is a de facto right of society, it is not mandated nor encouraged by the court.

In addition, this case law wasn't the event of the declaration of the right to nullify the law. Said right was officially declared by SCOTUS exactly one hundred years earlier in Georgia v. Brailsford. Plus, this didn't make nullification effectively illegal, as PRO suggested. I'm not even sure what he meant by that.

Thus, ladies and gentlemen, the case of Georgia v. Brailsford is the only relevant precedent that needs to be debated concerning overturning a decision and declaring a notion unconstitutional.

We need to establish the difference between 'illegal' and 'unconstitutional':

  • 'illegal' means that something is against the law.
  • 'unconstitutional' means that a certain law is in conflict or breach with the constitution, thus declaring a law null and void and anyone affected under said law will not suffer any more consequences.

Ergo, in order for PRO to affirm the resolution, the unconstitutionality of the topic at hand must be accurately shown and that arguments supporting illegalization must also be given.

RE: Objectivity in Law

My opponent hasn't made a solid case yet on showing that nullifying isn't objective but nevertheless, illegalizing Jury Nullification on the basis of whether the concept is an objective procedure or not or that it is a just or an unjust check on government is irrelevant and beside the point. If my opponent establishes a reasonable and accurate contention on the basis of the objectivity of law being relevant to the criminalizing of nullification, it will be much appreciated.

To successfully win this debate for PRO, he needs to accurately prove that Jury Nullification is unconstitutional and that it should be declared illegal by Congress. The only way to do this is to overturn relevant precedents upholding the right to nullify. And there are two ways to achieve this {1}:

  • A Constitutional Amendment proposed by the legislature.
  • A decision made by the Supreme Court on a current case that contradicts an earlier case, thus overruling itself.

RE: Juror's verdict based on opinion is subjective

I agree, every juror is different. Part of human nature is to have biases and beliefs. But the only way to put their opinion to practice is when Jury Nullification is revealed to them by the judge. If it isn't then the jury will be assuming that their judgement should be according to the Rule of Law but unaware of the right to nullify the law. What makes this process objective or fair is that there are twelve other jurors plus two alternates, not just one. In addition, a unanimous verdict must be rendered (or a majority verdict in civil cases).

RE: Juries checking on government but jury iteself not being checked

I'm not sure what PRO seems to be arguing here but he seems to forget that while a jury may be a check on government, a trial judge is considered a check on the jury. This is why we have voir dire, where attorneys may interview dozens of potential jurors and choose the twelve most competent and impartial ones.

RE: Nullification is Unconstitutional

I'm not sure if the Constitution specifically states 'under an objective set of laws' but the U.S. Constitution supports Jury Nullification via the Fifth Amendment, the Sixth Amendment and Article III, Section 2. Thus, depriving the concept would be a breach against the supreme law of the land {2}{3}{4}:

  • Article III, Section 2: "The trial of all crimes, except in cases of impeachment, shall be by jury;..."
  • Fifth Amendment: "...nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;..."
  • Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,..."

But regarding Due Process, the Fifth Amendment as well as the reconstructional Fourteenth Amendment contain and support said Clause, which was adopted and provided by the Clause 39 of the Magna Carta {5}:

"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

No where does it specify that Jury Nullification or any other related concept violates Due Process. In fact, Jury Nullification upholds it, since a jury nullifying a law and judging based on what is unanimously justifiable to them and not what is in conformation to the law is lawful and thus in accordance to the constitution.

Article III and the Sixth Amendment maintain that the jury has the ultimate decision of guilt or innocence. To recquire a trial by jury is to imply that jury's ability to come to its own conclusion regarding acquital or conviction. Meaning, that any jury has the acquittal power to impose on any defendant for any reason. Additionally, the trial court or appelate court are forbidden from appealing or overturning an acquittal on any defendant and to retry said defendant for the same crime twice according the Fifth Amendment.

In addition, excluding the their constitutional privileges and case law, the jury collects its ability to nullify from three other concepts {6}:

  • its right to deliver a verdict,
  • the insufficiency of courts to render a direct verdict regardless of the essence of the evidence,
  • their immunity from rendering a verdict.

With these privileges, the objectivity of the procedure is clear.

RE: Jurors not revealing verdict is detrimental

There are lots of ways for the decision of the jury to be revealed. A jury can be pulled by the judge and render their individual verdicts. Also, a juror, after the trial is over, can reveal what happened at the jury room at his own discretion by talking the the media, etc. If a juror lied in voir dire, he could be prosecuted for perjury. Ignoring a judge's instruction on disregarding an argument or evidence may result to him being thrown out of the jury. Also, a juror has an obligation to go to the judge and report any unethical behavior.

I did not address the quotes of experts and theorists my opponent cited since it will be useless. Unless PRO introduces an argument based on a quote and not render the quote as an argument, I will then address it.

Ladies and gentlemen, again, to win this debate, my opponent must prove that Jury Nullification is unconstitutional plus it should be illegal.

This is enough for now. I will extend my arguments in round two. Thank you and good luck!



Debate Round No. 1


I'll go in the same order my opponent did, since his case more or less exists within lines of refutation to my case.

First, go to the Sparf argument.

1. The intent of my argument is to say that jury nullification would be illegal. I am aware that just overturning Sparf wouldn't make jury nullification legal, but overturning Sparf is partially necessary insofar as it guarantees jury nullification, although it doesn't have to be dictated for juries. So yes, I am arguing for declaring jury nullification illegal and unconstitutional. In fact, I say this explicitly at the top of my case:

it is the affirmative advocacy that the Supreme Court ought to come right out and declare this action unconstitutional, and thereby illegal.

I'll get to the "illegal vs. unconstitutional" distinction in a bit. But for now, the purpose of my case is to make jury nullification illegal, which means I do advocate overturning any particular precedents. This, however, isn't the crux of the debate; the debate is about why jury nullification should be illegal, not how it should be illegal. So we can move on from this point, since I'm agreeing we should overturn these precedents. All my opponent's points do is specify more clearly what exactly it is I'm doing, it's not really a refutation of my case.
2. As to the illegal/unconstitutional distinction. If SCOTUS rules that affirmative action is unconstitutional (as it might do in the current Fisher v. University of Texas case, then the law becomes illegal, since the constitution is the ruling document of the land. My opponent's distinction between even says as much. I am arguing jury nullification should be illegal, partially because but not limited to the fact that it is unconstitutional. Extend the Haynie analysis in my initial case, which tells you that nullification thwarts due process, which is a guaranteed constitutional right. Nullification isn't.

Group his responses to the objectivity framework at the top of my case and the US Court of Appeals analysis under the contention tag.

1. His challenge is for me to prove why jury nullification isn't objective. I do this through the US Court of Appeals analysis, which gives you several warrants as to why nullification isn't an objective metric for law. So this stands. However...
2. His response the US Court of Appeals analysis is to say that "there are twelve jurors." One, there's no reason why this means objectivity exists. A unanimous decision isn't inherently an objective one. Especially since...
3. Where objectivity really becomes a problem is not within a single court case itself, but instead the multiplicity of cases. Since juries (A) don't communicate with other juries since that would create bias which lawyers would weed out and (B) a single jury nullification decision doesn't become normative law, it is false to suggest that juries provide an objective check on law. In state A where opinion about a law swings one way and in state B where it swings another, juries will come to different decisions. This brings out two impacts: (A) jury nullification is pragmatically ineffective, since it puts law in the hands of people in different, subjective situations, and (B) this also is unconstitutional because then defendant"s right to Equal Protection under the law, guaranteed by the Fourteenth Amendment, becomes violated because in different circumstances the law would apply in different ways. If a law doesn"t apply equally to all people, then by definition the Fourteenth Amendment is violated. This impacts back to the constitutionality standard he proposes in his refutation.

Next go to the refutation on checks in the system.

1. He says that the fact we have voir dire is enough to check juries, since lawyers and judges will weed out the most impartial ones. However, an impartial juror could still nullify, since he/she could come to believe a law is wrong during the trial and not convict because of it, which creates all the problems I"ve already mentioned.
2. But even if his refutation holds, then jury nullification becomes unnecessary and impossible, since the system he describes only reinforces the notion of a jury as finder of the facts of the case, not of the justness of a law (a distinction I"ll get to in a moment). I don"t know why you"d support nullification if a jury could never possibly want to do it in the first place based on the selection process.

Next go to his constitutional defense.

1. I would argue that even if it is constitutional, it"s still bad, based on all the harms I"ve already presented. But I would say it"s unconstitutional, and for these reasons....
2. When he lists off all these different articles from the Constitution, he misses an important fact of the jury trial. The purpose of the jury is to determine innocence or guilt based on the facts of the case, not on whether or not the law itself is good or bad. The latter type of the debate is left up to the legislature, since they"re the ones we elected for the purposes of lawmaking. We didn"t elect juries for this purpose. Thus all the articles in the Constitution he cites don"t apply to nullification, because the type of trial those articles are addressing is the trial by jury, which involves the facts of the case, not the justness of the law itself. This is a crucial distinction he misses.
3. The above refutation also applies to his response to the due process argument in the Haynie analysis; when he cites the line from the Magna Carta saying "lawful judgment of his equals or the law of the land," the judgment of his equals is based on the law that already exists, not the jury"s opinion of the law. Thus, you can turn his analysis against him, as the distinction made by the Magna Carta supports my side of the debate.
4. I"m aware there"s no government document saying "due process is not harmed by jury nullification," but my opponent is ignoring the analytical warrants in the Haynie analysis. When he says that jury nullification comports with due process because

In fact, Jury Nullification upholds [due process], since a jury nullifying a law and judging based on what is unanimously justifiable to them and not what is in conformation to the law is lawful and thus in accordance to the constitution.

he directly contradicts himself, since if the jury is ruling based on what is justifiable to them, and what is justifiable to them could contradict the existing law, they are thwarting due process since due process means that a defendant gets legal process under the existing law, which the jury cannot contradict. This is the second impact to constitutionality I establish, which means now you have two reasons to see why nullification is unconstitutional.
5. The three concepts he presents for why the jury can nullify do not at all tie to nullification whatsoever. The fact a jury can render a verdict doesn"t mean it can render a bad one, as in the case of nullification.

Lastly, look to his refutation of the jury disclosure point at the bottom of my case.

1. Jurors often can"t talk to the media, because many trials involve sensitive information which requires jury silence.
2. His responses ignore the warrants in the Leipold analysis, which tells us that most of the time we don"t hear the reason for why the jury decided the way they did. Thus, even though these checks may theoretically exist, they almost never play out in real life. One word: OJ Simpson.
3. Lastly, his entire point is self-contradictory. He says that "if something goes wrong, then the jury can tell people." (1) I"ve already shown that in many cases they can"t, and (2) if jury nullification is good, which my opponent is arguing, then why does the jury need to say anything at all? Why would they go to the media complaining?

Thus, because I"m impacting to both my standard of objectivity and my opponent"s standard of constitutionality, you should vote PRO.



I’d first like to thank PRO for responding quickly.

PRO’s Sparf v. U.S. Argument

Thank you for clarifying what you meant. I agree that that isn’t the crux of the debate so I don’t have much to say. PRO’s argument here which supports his ‘unconstitutional’ argument is the statement of an Eric Haynie. All Haynie’s arguments are quotes and opinions that support the rule of law and that it is vital. But as I’ve shown, nullification is also a vital part of society and the law system. I’ve given arguments that are superior to what Haynie quoted; arguments supporting nullification’s justifiability and constitutionality last round that remain unrefuted.

In addition, the only part where Haynie got it wrong and what would make me forfeit the debate if he was right was his interpretation of the 6th Amendment that defendants are guaranteed a trial based exclusively on the evidence of record. Nowhere in the constitution are those words stated.

PRO’s Appeals Court Argument

First of all, PRO’s quote on the Appeals Court’s quoting of a trial judge is not sufficient to justify the subjectivity of Jury Nullification. All Judge Learned Hand stated in the Appeals Court’s report is that a person can leave his freedom at the hands of people who are not being held accountable for their verdict and that their verdict is final and no other consequences can follow. Again, I’ve already stated my response to an argument like this.

PRO’s Checks in the System Argument

I’m not really getting what PRO is trying to argue here, but voir dire is only one of the procedures I mentioned as an example of checking juries. That doesn’t mean that it 100% works. What does it have to do with nullification being impossible and unnecessary?

Moving on, the only problems PRO mentioned that a juror may make is that they will judge according to their conscience.

I will repeat: the jury’s obligation to check the government is essential to the justice system as it provides a substantial instrument for the evaluation of the rule of law and the system; the legal tool that is necessary in modern society.

I’d like to quote the Founding Fathers who stated in the Declaration of Independence: “…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

The jury’s right to nullify is definitely a justifiable check on the system and therefore it is considered an objective procedure and thus must remain legal.

PRO’s Rebuttal to the Constitutionality

Show me a reliable source that states that the jury is only the decider of the facts of the case because that is not so according to various voices, which advocate the jury’s job to judge both the facts and the law since it supplies and accommodates the alternative to consider other factors in the case besides the technicalities and language of the law.

I’d like to quote Founding Father and the first Chief Justice, John Jay, who stated in his opinion in Georgia v. Brailsford: "It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within the juries’ power of decision… the juries have a right to take it upon themselves to judge both, and to determine the law as well as the fact in controversy."

Though the jury isn’t obligated to reveal their reason on their verdict, it is still vital that they use their deciding power based on the facts and the law, while also judging the law.

Nullification is used and should be used as a tool if a certain law or the prosecution of said law is unreasonable and unjustified. It is not used and shouldn’t be used because the jury feels that the defendant is heroic or misunderstood.

If the Jury’s right to nullify is deprived, then their fundamental obligation to achieve their job is broken because the point of having a jury is then useless since they would be in a similar situation with the judge in a bench trial.

Regarding PRO’s misinterpretation of the Magna Carta argument, the ‘law that already exists’ bit was the Georgia v. Brailsford case that officially declared the de-facto right of jurors to nullify.

Next misinterpretation by PRO was my argument. That was not a contradiction. Again, the ‘law that already exists’ was the previously cited precedent, which made it lawful for juries to nullify a law if it feels justifiable to them to nullify it, even though it indirectly bypasses due process in which, at the same time upholds it (kind of like a compromise)

Now, regarding illegalization and unconstitutionality, in order to illegalize Nullification, it should be declared unconstitutional first by SCOTUS by contradicting a previous ruling thus overturning it. This is achieved as time passes and when social or political changes occur. My opponent needs to prove that the social and political changes relating to Nullification are sufficient enough to overturn previous precedents. All he has argued is that juries are not objective when nullifying because of their prejudice towards the defendant.

Illegalizing Jury Nullification is affecting jury duty. We are penalizing the jury in a way since making something illegal always involves punishment. If we illegalize nullification, we are forcing the jury to reveal how they reached a verdict. And this is a violation of traditional common law precedents that forbids the punishment on juries on reaching or revealing their verdicts.

It also affects the 5th Amendment’s Double Jeopardy clause. Let’s return to the hypothetical of Jane killing John and that the jury acquitted Jane. Let’s assume that nullification was unconstitutional during the trial. The State found out the truth, issued warrants of arrest to the twelve jurors and retried Jane for the same murder. That example would then be a hypothetical indirect violation of Jane’s 5th Amendment rights.

Lypold Aalysis

Can I ask how you got the info that jurors often can’t talk due to jury silence?

Next, the analysis my opponent quoted is highly disagreeable and doesn’t occur much since Jury Nullification is not that active in the States since juries only nullify between 3% to 4% on jury trials.

Jury Nullification usually happens when jurors find the particular application of the law to be unreasonable or unjustifiable and not based on their bias towards the defendant. If that was the case, then (as I said) they should’ve been kicked out in voir dire.

Here is a hypothetical we need to consider: Jane is married to John with two kids. John beats Jane repeatedly. Jane attempts to leave her husband lots of times but John keeps finding her or finds a way to keep her from leaving. Jane has had enough and doesn’t want to be abused again. Jane then eventually hits her husband while asleep with a hammer to the head fatally killing him. The State is now indicting her for Murder One.

The jury then obviously has two options if the evidence is black and white:

a) ‘Guilty’ – rendered if the jury agrees that she deliberately swung the hammer and that the killing was determined to be willful and premeditated, as what first degree murder defines.

b) ‘Not Guilty’ – rendered if the jury concludes that the specific rule is in conflict to what was genuinely intended by the defendant. It’s like saying, “Hey, we think that this woman shouldn’t be charged with Murder One since that law wasn’t for situations or conditions like this,” The jury is actually judging the law on its reasonableness and objectivity. Since the Murder One rule applied to the circumstance of Jane killing her husband, which wasn’t objective. They did not judge Jane’s heroism or even considered it an issue (even if they did, there are still other justifiable reasons). That’s Jury Nullification.

Since I’m running out of space, I’ll rest for now. I’ll continue this next round. Good luck.

Debate Round No. 2


I"ll go the same order he did.


I really only have one response here, since he"s agreed that overturning Sparf is necessary to overturning jury nullification. He says, and I quote:

But as I"ve shown, nullification is also a vital part of society and the law system.

He hasn"t shown this at all. He"s shown how it theoretically might be helpful, but he hasn"t shown how it"s been an invaluable part of our system. Because of the Sparf decision, most people don"t know about nullification (since judges and lawyers don"t like it and aren"t legally required to tell people about it), and thus aren"t exercising it. Not sure what"s "essential" about it. He himself recognizes that it only happens between three and four percent of court cases (wondering where he"s getting this info?)

Court of Appeals Analysis

1. In response to his argument against the quote "a person can leave his freedom at the hands of people who are not being held accountable for their verdict and that their verdict is final and no other consequences can follow," he says that there are all sorts of ways a jury"s decision can be found out and overturned. One problem: that response makes jury nullification pointless. Judges and lawyers notoriously despise nullification; there"s a reason jurors are rarely told about it. If the point of jury nullification is to prevent people from getting convicted by unjust laws, then he can"t just say, "well, there are ways of finding out a jury"s decision and overturning it," then nullification becomes irrelevant because a judge will always overturn it. This doesn"t really make sense.
2. He"s non-responsive to probably the most damning constitutional flaw in supporting nullification: equal protection. If two people can receive different treatment under the same law, then equal protection is null and void. Extend my fourteenth amendment analysis, which impacts back to his constitutionality standard.
3. But even if you don"t buy the fourteenth amendment argument, it"s still the case that nullification is pragmatically ineffective, since juries can"t corroborate their decisions (i.e. Jury 1 can"t say to Jury 2, "Nullify this law, because we did") insofar as that will bias the jury, and the lawyers will weed them out. He also doesn"t respond to this. When he says, "a substantial instrument for the evaluation of the rule of law and the system," he couldn"t be further from the truth: juries aren"t elected to change or evaluate the laws in the system, and they can"t do it in any unified, objective manner.

Checks in the System and Constitutionality

1. As to his insistence on citing the founding fathers as a way of supporting nullification. Andrew Leipold 2 writes,

"Yet, if the framers of the Constitution and the Bill of Rights thought that nullification was an important part of the right to trial by jury, they were awfully quiet about it. There is very little in the debates surrounding the drafting or ratification to suggest that they even thought about the issue, much less intended to incorporate it in the Constitution. While the Supreme Court, in construing the constitutional right to a jury, has been curiously closed-mouthed about the topic, the one time the Court spoke clearly, it decisively stated that a jury's power to nullify does not mean that a defendant has the right to be tried before a jury with that power. In the 1895 decision of Sparf and Hansen v. United States, the Court laid the groundwork for the rule that still prevails in most of the country -- judges are not required to tell juries that they have the power to acquit against the evidence nor are they required to let lawyers argue to the jury in favor of nullification. The message is clear -- even if courts can't stop juries from nullifying, they are under no legal obligation to help juries exercise the power."

Jury nullification doesn"t appear in the constitution at all. If it was as big a deal as he"s making it out to be, its inclusion would have made sense during the founding of the republic.
2. He directly contradicts himself when he says, "the jury isn"t obligated to reveal their reason on their verdict," since he said earlier that there are all these ways of making sure a jury isn"t toeing the line legally.
3. He says I"m misinterpreting the Magna Carta. The more important document to examine is the Constitution, which upholds equal protection under the law, meaning the law that exists. Since I"ve already proven that jury nullification thwarts equal protection, you"re still going to prefer a world where the jury is deciding on the facts of the case, not the justness of the law itself. He never responds to the fact that in the US we elect the legislature for that purpose; we don"t have juries for that purpose.
4. His statement "If we illegalize nullification, we are forcing the jury to reveal how they reached a verdict" makes no sense. A jury can find a defendant guilty or innocent based on the facts of the case (since the facts of the case aren"t always black and white or easy to adjudicate on) and not reveal every step they made in making the decision. I don"t really understand what he"s trying to say here.
5. His double jeopardy point doesn"t make sense either. It"s unconstitutional to try someone for a crime that was legal when it was committed, so this wouldn"t happen in a nullification-free world either.

One last point, this time on the "facts of the case" vs. "judging the law itself." The reason we have laypeople be jurors is that they can rule on the facts presented by the case; that is, they can determine whether or not evidence is valid or not. Jurors are not trained, however, for the complexities of law, and whether or not a certain law works in a particular instance. Jurors are smart, but they aren"t hired or elected to change the application of a law in a particular instance. Due process under the law and equal protection under the law means that laws have to exist objectively in order for those frameworks to make sense; jury nullification undermines this.

He never adequately responds to my due process analysis either; due process under the law means that the defendant is tried based on the laws that exist when s/he is indicted for that crime, which means the jury can"t make the law which the defendant is being tried for obsolete. This doesn"t make sense constitutionally.

Leipold 1 Analysis

1. Juries can"t talk for many reasons. The facts of the case may have involved sensitive materials, identities may have been confidential, etc.
2. Evidence isn"t always black or white; I"d say it rarely is, in fact. So his simplistic analysis of "jury nullification reflects the real world" and "jury nullification in the PRO world is just like being a judge" is nonsensical.
3. I"d like to know how he gets in the mind of a jury, especially since jurors can"t reveal their adjuications in most cases.
4. Nullification, even if you buy his analysis that it"s objective within an individual court case, isn"t objective on the broad scale of the application of law (here you can extend my fourteenth amendment analysis again) since with the power of nullification, Defendant Y can be convicted on a law but Defendant X could be acquitted since the jury happened to be sympathetic with him. This isn"t an objective procedure.

Thus, you"re voting PRO because I"ve continually shown how this process isn"t objective whatsoever and I prove two fatal constitutional violations: due process and equal protection become undermined in the CON world. You"re going to prefer the PRO side in this debate since I show concrete examples of how nullification undermines the constitution, whereas he has to make inferences that don"t hold up, since nullification never once appears in the constitution.

I thank my opponent for his remarks, and I look forward to his next ones.


jm_notguilty forfeited this round.
Debate Round No. 3


I understand missing a round; it happened to me not long ago myself.

That said, I'll just extend all of my arguments from the previous round; as a result, they don't bear repeating. Rather, I'll just go over the two key areas, namely my stated standard of objectivity and his implicit standard of constitutionality. I think both bear themselves out to the PRO side of this debate.


1. The first two areas where the PRO upholds objectivity better comes in the analysis I provided in my defense of my US Court of Appeals Analysis (point #2 in round 2 under the Court of Appeals analysis). Law is meant to apply equally to all people, which means that since, for instance, murder is a crime, then someone guilty of murder ought to be convicted by every potential jury that would see him/her. (I'm aware that there are different types of punishment for murder on a state-by-state basis, but that doesn't change the fact of conviction by all potential juries.) Jury nullification is a pragmatically non-objective way of enforcing the law, insofar as the law is not guaranteed to apply equally to all people. (I'm aware a jury is unlikely to make exceptions for murder via nullification, but the logic holds the same to other laws, say particular drug statutes.) This directly discredits all of my opponent's claims to the effect of, "Well, we can use jury nullification to check unjust laws," or, more explicitly, " I've shown, nullification is also a vital part of society and the law system." If a big chunk of a country is full of juries that will enforce an unjust law, but there happen to be a few precincts where people will use nullification, that result isn't communicated to other juries. Law, by this metric, is not applied objectively. This is the first place you're voting PRO, insofar as I've shown that his mechanism for fixing/checking bad laws will always be un-objective, which is the nature of law as established by my Sieckmann analysis at the top of my case in Round 1.
2. Plus, even if you don't buy the above argument, consider that nullification does nothing to actually change unjust laws; fixing it in one case doesn't create the necessary to move political will in the legislature (which, keep in mind, is the very institution enshrined by the Constitution to create and modify the law; I'll get to this in the Constiutionality debate).
3. Stemming from the above two points is the utter lack of pragmatic proof on his side of the debate. There's a noticeable lack of historical examples for an institution that he somehow manages to suggest is (A) "a vital part of society and the law system" and (B) used in only 3 to 4 percent of cases [an un-backed statistic, I'd say, which doesn't really make sense to me. Because of the Sparf decision, juries are rarely told about nullification and therefore don't use it. Consider the struggling efforts of the Fully Informed Jurors Association here. Even if you don't buy my argument that nullification is inherently un-objective, you at least have to notice the lack of pragmatics to hold the contrary position true.
4. Another key tension in his case, following from the objectivity arguments I've been making against his case throughout this debate, come in the form of his responses to my claims that juries don't have to reveal their decisions in the cases of nullification. He keeps saying things like, "No, there are ways for judges to correct the wrong decisions of juries." The problem with this response is that it works to undercut his side of the debate. If judges can overturn a decision they find objectionable, then they're going to overturn any sort of nullification, since judges and lawyers notoriously despise nullification. (There's a reason why the Sparf decision is what it is, and why most laypeople don't know what nullification is: judges don't want them to know). Thus, if you buy his refutation to my argument about nullification being un-checkable, you're buying into a system that prefers the PRO vision of law anyways (because the decision of the case will have to be by the facts of the case, not by nullification). It's a double-bind, and therefore a PRO vote either way.

Thus, I'm still upholding my initial standard of objectivity, and you're preferring PRO on this issue.


1. Obviously in light of missing the last round, my opponent didn't get to respond to my Andrew Leipold 2 analysis, so I'll just extend it instead of repeating it here. The simple point is this: if nullification were this bastion of constitutional justice as he's making it out to be, it'd be in the constitution. The Leipold 2 analysis tells you that talks of nullification were surprisingly silent during the drafting of the constitution, and the now-standing Supreme Court decision (Sparf) isn't very pro-nullification. I think at face this demonstrates that the constitutional support for nullification is thin.
2. He points out that there is no place in the constitution that specifically bans nullification. This is correct. But there are two explicit provisions of the constitution that are undermined by nullification, and thus you're going to prefer the PRO as far as constitutionality is concerned.

The first violation is Equal Protection. This goes woefully underrefuted on his side of the debate. Since the Fourteenth Amendment guarantees equal protection under the law (which has to mean the existing law, otherwise you could just insert whatever law you wanted in to that statement, which doesn't make sense), you can't have a system that treats all citizens differently based on the whims of a jury. I think this pretty clearly bears itself out.
The second violation is Due Process. If a defendant is guaranteed due process under the law (again, this has to be the existing law), then the jury's nullification of the law violates the due process the defendant was guaranteed before the trial began, under the existing law. As I mentioned in the last round, "the defendant is tried based on the laws that exist when s/he is indicted for that crime, which means the jury can't make the law which the defendant is being tried for obsolete. This doesn't make sense constitutionally."

3. I think an implicit constitutional violation comes in the form of how our democracy works. We hire juries to try defendants based on the law of the land (i.e. the existing law, since we have to know what the law is in order to try a defendant for/against it). They aren't elected; they're selected by a particular process not decided upon by the populous. We do, however, elect the legislature to change/modify laws if we do not like them. I recognize this isn't always a speedy process, but it's historically a better mechanism than the one described by CON, especially since he has provided no examples as to how nullification has checked the system.
4. Finally, as to the "facts of the case" vs. justness of the law distinction. Yes, it is true that it is not said in the constitution that "jury trials are only decided on the facts of the case." But practically, these are how jury decisions play out. As I mentioned in the last round, "The reason we have laypeople be jurors is that they can rule on the facts presented by the case; that is, they can determine whether or not evidence is valid or not. Jurors are not trained, however, for the complexities of law, and whether or not a certain law works in a particular instance. Jurors are smart, but they aren"t hired or elected to change the application of a law in a particular instance." Thus, you're preferring a world where jury decisions are made on the facts of the case, not the un-objective, unconstitutional world where nullification only attempts to fix the wrongs of the law.

Thus, because I'm upholding both my standard of objectivity and his standard of constitutionality, I believe your ballot should be PRO. I thank my opponent for his remarks.


Sorry, I just don't have the time. Thus I concede.

I really apogologize, it was a pleasure debating with you. Good luck.
Debate Round No. 4
3 comments have been posted on this debate. Showing 1 through 3 records.
Posted by jm_notguilty 5 years ago
Damn sorry, lost track of time. I'm currently on vacation and my internet privileges are limited. Not to worry, I'll post in the final round.
Posted by Volk23 5 years ago

Yes, that is the debate. What you said in your comment will be your side.
Posted by daniel.droege5 5 years ago
Just to be clear before I accept this debate:

I would be arguing that jury nullification remain legal in the United States.

I would like to accept if that is the case.
No votes have been placed for this debate.