This essay will present something of a heterodox argument for jury nullification. It will not rely on Constitutional, Common law, or case precedence. Nor will it rest on a philosophical refutation of enforcing unjust laws. It will be based upon a specified contingency under which the impact of juror bias has a negligible impact on the verdict. The scenario in which this premise is applicable is limited to a provincial window of conditions. Some crafted by circumstances and others shaped by state law. In the demonstrated hypothetical example, whether the juror excuses themselves from the case due to bias or motions to not indicate the suspect (even when a probable cause has been established).
As the previous paragraph has hinted, the contingency is specific to grand jury proceedings. The function of a grand jury is not determining guilt but rather based upon witness testimony if there is a strong likelihood that a crime has been committed. The job of the jury is to make a probably case determination based upon the evidence. Essentially, the jury helps the state ascertain if there is enough evidence to pursue charges. When you have been called to serve on a grand jury you are not reviewing just one case. Typically, you convene weekly and review a multitude of various cases throughout a couple of months. Differentiating this process from that of a criminal trial. Due to the variety of potential cases a juror will decide on, the judge tends to be more lenient in the jury selection process. Being biased towards drug cases for, for example, is not automatic grounds for disqualification for jury duty. Rather you are requested by the judge to excuse yourself from that specific case. Then rejoin your fellow jurors on the next case. Making grand jury hearings quite a bit different than a criminal trial.
In the state of Arizona, grand jurors are read the daily admonitions at the beginning of each session. The admonitions are essentially a reading of state statue 16A A.R.S. Rules Crim.Proc., Rule 12.2:
Rule 12.2. Grounds to Disqualify a Grand Juror
A grand juror is disqualified from serving in any particular matter if the juror is:
(a) a witness in the matter;
(b) interested directly or indirectly in the matter under investigation;
(c) related within the fourth degree by either consanguinity or affinity to a person under investigation, a victim, or a witness; or
(d) biased or prejudiced in favor of either the State or a person under investigation. .
This statue is a means of preventing juror bias influence the probable cause ruling. I particularly take issue with part (D). I believe that part D only is applicable if the individual is prejudiced towards the interest of the state. From purely a mathematical standpoint, it does matter if I excuse myself or motion to not indicate the subject under investigation. Both operate in favor of the suspect.
Grand Jury Ruling:
Scenario #1: True Bill- 15/1 ( One juror opted to vote against indictment. Did so on grounds of the Marijuana laws in Arizona being unjust. In other words, they actively engaged in juror nullification.)
Scenario #2– True Bill- 15/0. (One juror opted to be excused from the hearing due to their beliefs about Marijuana use).
Does either action truly influence the results of the ruling? No. This should be self-evident to anyone with even the most rudimentary math skills! If it does not skew the results of the ruling from a mathematical standpoint, why would this be problematic? Voting against indictment and excusing yourself has the same numeric impact. It is similar to what people were saying back in the 2016 presidential election. ” Don’t vote third-party, because you are throwing away your vote.” or ” If you vote third-party that is just another vote for Trump/ Hillary (depending on which side of the fence you were on). It is a similar principle from a numeric standpoint. Ideologically the consequences are quite different (disclaimer: I am third-party voter).
The fact that Rule 12.2 explicitly disqualifies those biased towards the suspect is absurd. As demonstrated above, the numbers do not change. Excusing myself from the hearing is due to bias has the same numeric impact as opting to drop the charges. It could be argued that excusing yourself from the case isn’t doing the right thing, but is rather a legally enforced formality. To the best of my knowledge, no one else in the state of Arizona has commented on this paradox. I am surprised by this due to the simplistic nature of this observation. Nevertheless, what is the point of refraining from engaging in juror nullification if it will have the same outcome as excusing ourselves from the case?
Complying with the part D clause of Rule 12.2 is the epitome of mindless legal positivism. It does not take into consideration the actual results of the juror’s self-removal from the hearing. It functions as a codified deterrent from engaging in jury nullification. A practice that has been long defended morally and in common law. It also has historical precedence for combating unjust laws. Such as the Fugitive Slave Act of 1850. I would suggest that it is fair to wanting down-vote levying two felony charges against someone for possessing 1 gram of pot. Above all, a victimless crime.
Please keep in mind the contingency of this argument is self-limiting. It only applies to the specific conditions cultivated by the unique conditions of grand jury hearings and Arizona state law. Please note that this observation of compliance with part D of Rule 12.2 is only applicable to bias in favor of the suspect. The numeric impact has the opposite effect if the juror is biased in favor of the state. I cannot justify such actions on the grounds of the numeric argument.
Contingencies for the Numeric Grand Jury Paradox:
- Only applicable to Grand Jury hearings.
2.Only applicable to Arizona state law or similar statues having specific conditions for juror disqualification.
- This theory is only applicable to clause D of Rule 12.2. Maybe applied conditionally.
- It is only applicable clause D if the juror in question is biased in favor of suspect.
The bias towards the suspect is only applicable to the paradox if it is on moral grounds. Only if the juror either takes issue with the law or how the law is being applied to the suspect.