I wasn't sure what excerpt or excerpts to include in this final pre-release post. In the end, I decided on two excerpts, the first having to do with what juries can get away with.
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G. Jury Nullification and Other Shenanigans
One open secret about juries is that in criminal trials, jurors don’t have to do as they’re told. This is a big part of why we have juries at all. They’re a failsafe against laws that may be unduly harsh or out of step with current societal values. If the law is unjust, the jury may simply refuse to apply the law. Such a refusal is called “jury nullification.” This power can be extrapolated from several U.S. constitutional provisions. In addition, four states, Georgia, Indiana, Maryland, and Oregon, have state constitutional provisions or statutes saying the jury is the judge of, or has the right to determine, both “the law” and “the facts” of the case. (In Indiana, it’s Article I, §19 of the state constitution.) Twenty more states have more limited provisions that apply to civil suits for libel, presumably due to the importance those states accord to freedom of speech.
Judges, understandably, would just as soon that jurors didn’t know they have this option. The defense generally won’t be allowed to argue that the jury should ignore the law. The most the defense may be able to do is get a jury instruction (see 27.B.) citing the “judge of the law and the facts” language if it exists in that state — and then largely contradicting it by saying that the jury should follow the law as the judge has explained it to them. **A clever defense attorney might be able to hint, just enough, at the possibility of jury nullification that even if the trial judge intervenes and tells them to ignore what the attorney said, the jury will have picked up the clue.**
(There's also something called "jury vilification" -- but it's something a judge does. If a judge unjustifiably ignores a jury's verdict, e.g. by directing an acquittal after the jury has convicted when the evidence could justify conviction, that's jury vilification. See 5.C. re judicial misbehavior.)
If a jury does break the rules, it’s not so easy to do anything about it, especially if the verdict’s already in.
During a trial, including while the jury is deliberating, there are various things a judge can do if informed that a juror has misbehaved. If, for example, some other member of the jury reports that a juror has hidden a powerful motive to rule for one party or the other, or has done significant research into some factual or legal issue, the judge may dismiss that juror and interrogate the other jurors to see whether their own ability to deliberate impartially has been affected. The judge could admonish (lecture) the other jurors, reminding them of their duty, or could even surrender and declare a mistrial (see 9.D.). It’s anybody’s guess what most judges would do if confronted, mid-trial, by the knife-shopping expedition out of which Henry Fonda’s character made such hay in Twelve Angry Men. Different judges will allow different amounts of latitude to juries who perform experiments with items already in, or similar to items in, evidence. **But one could base a story on such events, aiming for anything from farce (“but Henry Fonda did it!”) to tragic irony (e.g. an acquittal prevented by a mistrial, followed by conviction of the innocent defendant in a second trial).**
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For my last pre-release excerpt, I'm serving up a rather timely discussion about the First Amendment to the U.S. Constitution, and what it actually protects.
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1. The First Amendment
The First Amendment plus the Fourteenth (see the intro to this chapter) prevent the federal, state, and local governments and their agents from:
>> “establish[ing]” any religion;
>> “prohibiting the free exercise” of any religion;
>> “abridging” the “freedom of speech,” the “freedom of the press,” “the right of the people peaceably to assemble,” and the right of the people “to petition the government for a redress of grievances.”
None of these restrictions on government power are straightforwardly defined, and the definitions keep changing. What government actions constitute an “establishment of religion” is a particularly tangled thicket, with frequent litigation about whether a town hall may open with a prayer (currently, yes, if the prayers are theoretically open to all religions) and whether religious symbols such as Nativity scenes may be erected with public funds or on government property (currently, no, unless there actually are a variety of comparable secular displays in the same location as well).
[. . .]
Freedom of speech covers only government restrictions on speech. If, for example, a magazine refuses to publish certain points of view, that’s not “censorship” in the sense of a violation of the First Amendment: the magazine, as a private entity, has every right to decide what speech it will tolerate.
The definition of “free speech” has been stretched over the years to include a good deal of nonverbal-but-expressive conduct, such as nude dancing (if the context is arguably artistic). It can also include loudly airing one’s displeasure at what a police officer is doing, though at some point such conduct could shade over into “disorderly conduct,” “disturbing the peace,” or interfering with the officer’s performance of their duties” (see 13.O.). When someone yells obscenities or insults at a police officer, states may differ as to whether police officers should be treated as having a higher threshold of endurance than the general public. More generally, there is often a two-stage analysis:
1. Did the state (or municipality) restrict expressive activity?
2. Did the defendant “abuse” their free speech rights to the point that they’re no longer protected?
The court may combine several balancing tests, looking at how much the state interfered with the speech, and at how much of a nuisance or injury the defendant’s conduct imposed on bystanders, nearby property owners, etc. If the speech had political content, even if liberally larded with obscene emphasis, the state will have to show more in the way of damage done.
Free speech definitely includes expressing unpopular and “offensive” opinions and trying to persuade people to come around to those opinions. That’s why rules that try to “protect” students at public universities from being offended or upset run afoul of First Amendment concerns.
What about “fighting words”? The idea that some insults provide so much provocation as to put them outside First Amendment protection came from the 1942 Chaplinsky case, in which the U.S. Supreme Court held that calling a city official a “damn racketeer” and a “damn Fascist” fell into an unprotected “fighting words” category. [. . .]To the extent the “fighting words” doctrine survives, it now refers only to personal insults directed at specific people, and does not allow even those insults to be punished under statutes that could also be used to punish a broader variety of offensive statements.
State and lower federal courts have often disagreed as to just what insults may still be treated as crimes. As already mentioned, there may be a tendency to treat insults directed at police officers as constitutionally protected comments on governmental activity, where the same insults aimed at a private citizen would have no such protection.
Some state college administrators, whose colleges come within the rules for governmental institutions, fall back on the fact that the Supreme Court never explicitly overruled Chaplinsky as allowing them to prohibit “offensive” speech. This argument has not fared well in the courts.
Another much-misunderstood notion is “clear and present danger,” for which the best-known example is shouting “Fire!” in a crowded theater. This example was used in a 1919 U.S. Supreme Court case that actually involved a very different sort of speech, namely encouraging young men to resist the draft during World War I. (This period was not exactly a high water mark for U.S. civil liberties.) If speech posed a “clear and present danger” of leading to consequences the government could legitimately seek to prevent, it could be prohibited and punished.
The Supreme Court overturned this ruling around fifty years later. Abandoning the “clear and present danger” standard, the Court held that speech could not be made illegal unless it incited “imminent lawless action.” “All of you go out right now and burn down the theater!” would presumably qualify.
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That's all! I hope these excerpts have been interesting and/or informative -- and that they've whetted your appetite for more. If you want to know about the many, many subjects from which I haven't taken excerpts, then tomorrow you can use "Look Inside" to see the Table of Contents on
Amazon -- or, of course, get the book there, or at
Barnes & Noble, or anywhere else you find it. (There may be a delay in the Kindle edition, for reasons too dull to relate. And whether there will be a non-Kindle ebook edition is currently uncertain.)
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