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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. [1].

 

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.

 

 

Example:

 

Grand Jury Ruling:

 

Crime : Possession of Marijuana (Class 6 felony in Arizona) [2]. Possession of Drug Paraphernalia (plastic baggie containing Marijuana)(Class 6 felony in Arizona) [3].

 

 

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:

 

  1. Only applicable to Grand Jury hearings.

 

2.Only applicable to Arizona state law or similar statues having specific conditions for       juror disqualification.

 

  1. This theory is only applicable to clause D of Rule 12.2. Maybe applied conditionally.

 

  1. It is only applicable clause D if the juror in question is biased in favor of suspect.

 

  1. 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.

 

 

 

20 thoughts on “A Numeric Argument for Jury Nullification

    1. I will read your paper. I have to admit I am
      not well versed in Bayesian probability. So this should be an education experience for me.

      I suppose in my essay I was more concerned with emphasizing an observation than formulating a solution. Maybe I should consider a solution. I would preliminary speaking purpose a revision to Rule 12.2. However, your paper may provide further guidance on the matter.

      Liked by 1 person

        1. Read the second paper. Results were counterintuitive.

          The range voting paper served as a nice conceptual prelude. While demonstrating distinct observations, both demonstrate the inherent accuracy of collective voting in contrast to the assertions of one individual juror.

          Liked by 1 person

    2. Sorry about the delay. Had to complete several errands yesterday.

      So far I have read the first paper you presented regarding range voting. Never really considered it being applied to jurors until reading your paper.

      Based upon the approach you presented, looks like it could operate as a safeguard against many of the issues afflicting jury trials.

      I particularly appreciate its potential function of shielding principle voters from the censure of their peers.

      Liked by 1 person

    1. No problem. What helps is that your writing style is very clear. That can’t be said for every academic scholar. I have learned quite a bit from reading your material. Which I see as a positive.

      I have started reading your second paper. Goal is to complete reading it today( intermittently between various chores). Along with reading one article out of the Independent Review.

      Liked by 1 person

      1. Thank you for the kind words. This is on my reading list too, among many other things: https://www.lrb.co.uk/blog/2020/may/leviathan-in-lockdown?referrer=https%3A%2F%2Fwww.lrb.co.uk%2Fsession%3Fredirect%3Dhttps%253A%252F%252Fwww.lrb.co.uk%252Fblog%252F2020%252Fmay%252Fleviathan-in-lockdown%253Freferrer%253Dhttps%25253A%25252F%25252Fwww.lrb.co.uk%25252Fsession%25253Fredirect%25253Dhttps%2525253A%2525252F%2525252Fwww.lrb.co.uk%2525252Fblog%2525252F2020%2525252Fmay%2525252Fleviathan-in-lockdown%2525253Freferrer%2525253Dhttps%252525253A%252525252F%252525252Fwww.lrb.co.uk%252525252Fsession%252525253Fredirect%252525253Dhttps%25252525253A%25252525252F%25252525252Fwww.lrb.co.uk%25252525252Fblog%25252525252F2020%25252525252Fmay%25252525252Fleviathan-in-lockdown%25252525253Freferrer%25252525253Dhttps%2525252525253A%2525252525252F%2525252525252Fwww.lrb.co.uk%2525252525252Fsession%2525252525253Fredirect%2525252525253Dhttps%252525252525253A%252525252525252F%252525252525252Fwww.lrb.co.uk%252525252525252Fblog%252525252525252F2020%252525252525252Fmay%252525252525252Fleviathan-in-lockdown%252525252525253Freferrer%252525252525253Dhttps%25252525252525253A%25252525252525252F%25252525252525252Fwww.lrb.co.uk%25252525252525252Fsession%25252525252525253Fredirect%25252525252525253Dhttps%2525252525252525253A%2525252525252525252F%2525252525252525252Fwww.lrb.co.uk%2525252525252525252Fblog%2525252525252525252F2020%2525252525252525252Fmay%2525252525252525252Fleviathan-in-lockdown%252525252525252526s%25252525252525253DAu0gSJ1QZjI34Nlhs%25252525252525252Bez8HSfzl8tEiVBN3QcE3b65o6qzCyq72mQrop28r2ah2QGTR1qNU1BHAmYjGvYgCP1g%25252525252525252Bbo2%25252525252525252BMdFUTk57yxCJu0ZdgMWEh%25252525252525252Bx74bpiC%25252525252525252BFU59%25252525252525252FPls0OhVX8bRd9r6%25252525252525252BAQmUAznN1gno0Xi5mP4kZNLO00XmSKgVNjnoTghXGEwcqOfXogJRvOHvl2xCWCNjpyyh%25252525252525252BX92O0RUjxorpkfPKw3pdJBPmFLlhcAS9vCpUv5F78O3zfzzMatW08%25252525252525253D%25252525252526s%2525252525253DbUUQG%2525252525252BDnOUhB4qdNC5XMjZTMH7PnuePrPE3i2zGMMZ4y%2525252525252BZQhLXtJzlMDrzhdqRZ4fkvo4z5lb3W0mHzlrfMqj%2525252525252FnocMbhC%2525252525252FHuH%2525252525252BiCvnZp%2525252525252FPh61Rg9e%2525252525252FZa91G5v7Uk%2525252525252FksVBhpBf%2525252525252B5mK9JrUxpWx6m%2525252525252BdYOl86FyEXRg7oyWEj6cAiOi5e%2525252525252Fsb19UW79Jt2wPvd%2525252525252FhdiRUuFUOLR94%2525252525252BhXjqXahwpyEOzMiOWqTu8K6%2525252525252Byrp6sJzbufindpwPyulRweGltBpnv4pac0%2525252525253D%2525252526s%252525253DDNwXyQgtlajkMBAvcganoXw23ohwF5Uk1rVEJtKnC8bZvEre6ly5HKsO3ZQ8D1STzIMWXAz8bmEJRqV6MjC3SsWc9VhvdJxKriceLIP5uuVS8Fj9rc6wAqsK0TMfSDv84PWeTk3yRQviLsSuirqSN%252525252Fsb6DrJkrnOJt5tH47FnAh7rlGtaWjKIKmqWCwSTKByrclAt8UhxkAh%252525252BrNh5wVIw1isi7g3UBUV5iVKRnW%252525252BKJFrOHG0eYIqmOKt0E9nlENdB5lHfNg%252525253D%252526s%25253DrGv5%25252B1rHVgEcsCEkI6rnhla1JQh0koIZwq38PSN2v7re5z59%25252BYujnhyHoiusimTmnvmPBiSOQe8njR6SFtOaFJvhToXXLr3i%25252FpDEnE6m7%25252FGYJgw5zApNzpAnYNgOz%25252BcnoM1Cbm%25252FYdwrPh0%25252FxT%25252BAdwArPVgDK%25252Fq%25252FHKKn4ugeiKlJ0aX9fQrSct6dDWIeIVv31HJktslQTQDYIpkNk5md3X0eBtG9lmZYKPKXmm3jtNijgG6izTPUySY8em4Mc9rv23yuPujI%25253D%26s%3DqSg0oGF0Nqt%2BkoXK6DUctmOrx5gwwirz9SIY4VkHqZlfLCpW46atcI4Sa%2F1B%2BRmBrQTbjFvNMwX7EeO9AZFiKZrvcRSva6Cfy0GPrjPw9haiUAKJRXWy%2FXSAkzQVzsOLq7stJ3Q3DtoZ5BTi6QSFVprgawRGuvYHOCCcCHBbN0n%2FW471kLq9IJCxYQdw5PEKHROk9vy1p18mbMz8wJugbHSLZPbsefcjciadICvG6y7SH6pkekguciNJEo2twtO07w%3D%3D

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        1. Yes, let’s continue exchanging ideas. I will finish the Hobbes essay after dinner tonight and will report back soon. (Alas, I got bogged down watching several classic film noir movies last night and running errands today.)

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        2. What a beautiful essay! I especially liked the attention to detail, and I did not know that Hobbes had translated Thucydides’ History of the Peloponnesian War, which is perhaps the single-most important history book ever written! What are your thoughts?

          Liked by 1 person

        3. I wasn’t aware of Hobbes having translated that either. The reference to the Athenian plague is fitting both in Hobbes time and the present.

          Makes me reflect upon how we are reacting to COVID today. I am not making a value judgement about the policies currently implemented. It does feel like we need to either dispense with freedom or safety.

          Granted, I am being vague and I am paint with broad brush strokes. To some extent I believe this is true.

          Whenever we go grapple with choosing safety over autonomy or vice versa we are going back to the philosophical inquiries of thinkers such Hobbes and Locke.

          I will clarify , obviously Locke was not an anarchist. He was much more open to utilizing government sparingly. Hobbes in contrast exhaled the position of complete and utter deference to state authority. All in the name of security above all.

          I would personally surmise that this was a direct result of his experiences during the English civil war. When you think of it on that context, it makes sense. Witnessing such atrocities and discord alone could be enough to relinquish all faith in humanity. However, can security and safety ever be fully guaranteed ? Even taking extreme and inordinate precautions can’t eliminate all risk. Even with a highly controlled experiment with highly favorable results , there is still a very minuscule possibility of the resulting being caused by sampling error. This analogue stresses despite the Hobbesian proclivity for attempting to strive towards complete security, odds are this is not possible. Human error is impossible to phase out in any human enterprise.

          The Hobbes vs Locke divide in political philosophy rings true now due to the COVID-19 outbreak. As it did in the nascent years of the War on Terrorism. The balance between safety and security is deeply rooted concern in the panoply of human psyche. Dare I be so bold to suggest, this debate pre-dates Locke and Hobbes. Speaking of the Peloponnesian war, both participating polities in the conflict personify this philosophical divide. The liberal and democratic city-state of Athens pitted against the ultra-conservative military state of Sparta. I don’t think the debate over the correct ratio of freedom to security will be addressed anytime soon. Clearly humans have been debating this point since the dawn of communicative human history.

          While their maybe a golden-mean for this balance. It is an uphill battle to persuade the less reasonable detractors. Especially those who posses an “all or nothing” mentality.

          Hope this conversation didn’t sway too far off course.

          Peter.

          Liked by 1 person

        4. Any of the purportedly temporary restrictions that maybe come permanent. Allowing this crisis to change society permanently will require us to give up more of rights indefinitely.

          Following the same trajectory of 9/11. Which enacted resolute changes to American life. Not go the better.

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        5. Correction : Changed “Not for the better” of individual freedom.

          Let me elucidate that point. The COVID-19 outbreak “could” lead to long lasting restrictions. Posing a similar issue that 9/11 did. An event serving as a pretext for enacting permanent restrictions.

          I should have been more clear and grammatical accurate. I apologize for that.

          Liked by 1 person

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