[conspire] [Off-topic] Always a bridesmaid...

Rick Moen rick at linuxmafia.com
Thu Aug 2 10:39:56 PDT 2007

Quoting jim stockford (jim at well.com):

> this is because judges are trained to be referees with respect to the
> issues of law rather than those of justice, yes?

Not exactly (despite the Oliver Wendell Holmes quotation[1]).

In a nutshell:  Jurors in normal circumstances are supposed to decide 
the _facts only_, leaving all questions of law to the judge.  The judge
decides on the basis of applicable rules of evidence what evidence and
arguments the jury will hear.  Jurors are warned not to independently
investigate the case or in any way research matters of law or evidence.
They are told that they must not confer until the case ends, that they
must confer with all jurors present, and that they must discuss the case
with nobody else, period (until it's over).[2] 

Civil libertarians -- but few judges -- argue that it's vital for jurors
to hold in reserve, for exceptional cases where otherwise a miscarriage 
of justice would occur, the power to simply refuse to apply unjust laws.
There is room for debate among reasonable people, on this matter, in
part because nothing guarantees jurors will overrule only _bad_ laws.
One thinks, for example, of people justly arraigned on murder charges
for lynchings during the Jim Crow era, wrongfully acquitted by juries
even though the prosecutor proved his/her case.

Note that there's an inherent asymmetry:  Judges can set aside
criminal-case juries' guilty verdicts if the jury obviously erred and is
committing a gross injustice, but cannot vacate "not guilty" verdicts,
as that would lead to double jeopardy.

[1] http://www.apexdigest.com/Online/fiction060403.shtml
...a recommended short story, if you like science fiction.  

[2] It's always interesting to study engineered systems (even the jury
system) by studying its failure modes.  Here's a criminal-defence law
firm's very brief summary of acquittals recently won by charging that 
the trial was tainted by jury misconduct:

Vastly longer, but interesting if you read selectively, is the text of
California's standard jury instructions:

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