Jury Nullification With Chinese Characteristics

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Stan Abrams of the always excellent China Hearsay blog just posted [link no longer exists] on the decision of a Guangzhou court to dramatically reduce a verdict of life imprisonment to a five-year jail term for a person convicted of stealing money from a bank by taking advantage of a malfunctioning ATM machine. This “rare change of verdict in such a case was made under pressure of public opinion, which condemned the earlier life-imprisonment sentence as ridiculously too heavy.”

China Hearsay cites an Asia Times article which sees the judge’s public opinion induced charge of heart as a generally good thing:

This case is of significance. On the positive side, it is evident that in today’s China public opinions, expressed mainly through the Internet and mobile-phone text messages, are playing an increasingly important role in supervision. On the other hand, it questions the independence of China’s judicial system.

Chinese courts are often said to be subject to political interference by the Communist Party and its government. This case seems to suggest that the courts also take public opinion into consideration when they make rulings. This may be unthinkable in a place where the judicial system is independent. However, the judicial system with “Chinese characteristics” could hardly be said to be independent, so it may not be such a bad a thing if the public becomes a check on political influence.

China Hearsay disagrees:

Uh, isn’t this like the last thing we want to be encouraging? The judiciary in China has come a very long way over the past few years. Whether public opinion operates as a check against certain kinds of government interference or not, this pretty much sends the wrong message to judges, doesn’t it?

I don’t know about you, but I would not want my fate to be decided by a judge who was checking out which way the wind of public opinion was blowing. And if you tell me that this a good way for the public to get their concerns acknowledged, I would tell you not to bring politics into the courtroom – there’s enough of that already.

This very much reminds me of “jury nullification” here in the United States, which Wikipedia describes as follows:

Jury nullification refers to a rendering of a verdict by a trial jury, disagreeing with the instructions by the judge concerning what the law is, or whether such law is applicable to the case, taking into account all of the evidence presented. Although a jury’s refusal relates only to the particular case before it, if a pattern of such verdicts develops, it can have the practical effect of disabling the enforcement of that position on what the law is or how it should be applied. Juries are reluctant to render a verdict contrary to law, but a conflict may emerge between what judges and the public from whom juries are drawn hold the law to be, or the legitimacy of a law itself. A succession of such verdicts may signal an unwillingness by the public to accept the law given them and may render it a “dead-letter” or bring about its repeal. The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the accused and the law, than officials who may be unduly influenced to follow merely the established law. Jury nullification is a reminder that the right to trial by one’s peers affords the public an opportunity to take a dissenting view about the justness of a statute or official practices.

And, as Wikipedia notes, this sort of thing can be both good and bad:

Notwithstanding perceived righteous applications of jury nullification, it bears noting that this verdict anomaly can also occur simply as a device to absolve a defendant of culpability. Sympathy, bias or prejudice can influence some jurors to wholly disregard evidence and instruction in favor of a sort of “jury forgiveness.”

Historical examples include American revolutionaries who refused to convict under English law, juries who refuse to convict due to perceived injustice of a law in general, the perceived injustice of the way the law is applied in particular cases, and cases where the juries have refused to convict due to their own prejudices such as the race of one of the parties in the case.

Given China’s judicial system, I think the same is true with respect to popular opinion swaying judges there. Though as a lawyer I  should be appalled by a local judge being swayed by popular opinion (has a university sports team ever not gotten a preliminary injunction from a local court against the NCAA?), I actually think such swaying may have a place in China, at least for now. China Hearsay entitled its post, “In Praise of Independent Judges,” but until such time as China’s judges are truly independent of the government, I actually like the idea of “the people” having limited influence.

What do you think?

4 responses to “Jury Nullification With Chinese Characteristics”

  1. Of course, jury nullification’s greatest moment was the period after the English civil war when the puritans attempted to bring in many laws that sought to prevent ‘immoral’ behaviour. The puritans had simply not understood that juries would simply not comply in agreeing that things like cooking on a sunday could be crimes that anyone could be found guilty of. Nowadays, terrorism, complicated fraud, IP infringement and other complicated trials are excluded from jury trial here in the UK, but I can’t help but think that we are losing something by doing so. On the other hand, East Texas is a shining example of what over-assertion of the jury system can lead to.

  2. Agreed. Limited influence, “at least for now.”
    In the original decision the punishment far outweighed the crime in public opinion. A punishment that exceeds the crime is a punishment outside the bounds of (some conceptions of) the rule of law. Beijing says that China is working towards the rule of law, and has not yet arrived. In this case, public opinion swayed the judges to commute the endless sentence to a more reasonable sentence. Given the outcry from this sentence, will the lesser sentence now serve as precedent?

  3. To say it is “unthinkable” in an independent judiciary for public opinion to have a role in court decisions is absurd–of course it does! Many judicial decisions have explicitly incorporated the inclusion of public opinion via “community standards”–for example decisions regarding pornography, capital punishment, and what constitutes “cruel and unusual” punishment. “Standards of the community” are public opinions by another name. In this case, the court held that a life sentence for this crime would be “cruel and unusual” by the standards of the community. Whether those opinions were expressed via text messages or academic studies, the effect is the same.

  4. We are trying to balance the public opinions and the discretion of the judges.To comment on that event, one should notice that it is a fresh and difficult case which depends more on the discretion of the judge.Without reports, the court will also refer that case to many experts. I know in your country, there is AmicusCuriae.That is the same system to assist the court to judge on difficult cases.
    But when we talk about the public opinions and the court. We do need a guideline to control the relationship between them.That is what we are doing now.In fact I am in charge of that. In future you will get more information on that.

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