Jury Nullification--real life, not theory

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LawDog?

Those are examples of malum in se laws (lit. "bad in itself"). Those things were morally wrong before there was a law against them, and society eventually recognized the moral wrongness of those acts by codifying laws against them. Murder, rape, slavery, and physical abuse fall into this category.

A malum prohibitum (lit. "bad because it is prohibited") law is a law against something that is not necessarily immoral, doesn't necessarily harm any specific person, but is illegal simply because that's the way we've decided to do things. Parking regulations, zoning laws, and other such bureaucratic pufferies fall into this category.

pax
 
Nope, malum prohibitum.

Acts which are malum in se are never accepted by society. Murder has never been socially acceptable. Neither has theft.

Slavery, on the other hand, has been socially acceptable in the past. As has physical chastisement of ones wife.

While these things are - as you pointed out - considered morally wrong at this time, does not mean they were considered morally wrong in the past.

Indeed, at times slavery and wife abuse has not only been socially acceptable, but were considered a responsibility by society - until society decided that the behavior was wrong and passed laws against it.

Murder, theft and violation of an oath sworn before your God have never been acceptable to any society, ergo laws forbidding murder, theft and oath-breaking are malum in se.

Slavery, wife beating and sundry other acts were acceptable to society for far longer than they have been unacceptable. They have been acceptable in Western society for hundreds and/or thousands of years until society decided that they were wrong, a decade or a century or so ago.

That is the very definition of malum prohibitum.

LawDog
 
Good grief, a Latin/legal scholarship debate has broken out on my thread. Hmmm, only at THR. :D I, Juez Tejon, do hereby read to you the following final instructions for your consideration:

Mala in se--wrongs in themselves


Mala prohbita--act which are mad offenses by positive law, acts which are made criminal by statute but which, of themselves, are not criminal.

You are now hereby discharge in the care of the bailiff to decide this case. I'm going back to my chambers and practice my putting. :p
 
LawDog ~

If I were to cite for you an example of a society in which murder and oath-breaking were acceptable, would murder then fall under your definition of malum prohibitum?

pax
 
Murder, theft and violation of an oath sworn before your God have never been acceptable to any society, ergo laws forbidding murder, theft and oath-breaking are malum in se.
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If you accept evidence of evolution (it doesn't matter if Earth was created by God or by physical processes billions of years after the big bang; as long as the earth is billions and not thousands of years old, there was some sort of evolution)... we descended from the same ancestors as every other animal. In the animal kingdom there are plenty of instances of murder and many other crimes we consider "malum in se." I don't think the distinction is as easily defined as you suggest.

Lack of government seems to be malum prohibitum.
 
I've dreamed of a thread with a good argument between Pax and Lawdog. Watch close folks, we might learn something.

El T, get back out here....it is your thread after all.

Smoke
 
Hmmm... now seems like a good time to ask. How do you say "I like things that go bang!" in Latin? :)

Sorry, that's all I have to offer this thread.

Tim
 
Gee, and people sometimes ask me why I'm willing to cut a deal, even on what appears to be a slam-dunk case. You never know what a jury is going to do until they read you the verdict.
 
Smoke ~

I ain't arguin' with LawDog. I jes' asked a question about his definition, that's all...

;)

pax
 
Kirk,
Great read! I won't insult you by asking if you pulled punches or tried to come across to the jury as The Man trying to come down hard on this po', innocent boy.


I don't mean to step on Pax's toes if this was something she was going to spring with her earlier question to LawDog, but there have been a large number of murders committed with full acceptance (indeed participation) of "society" in certain areas. Lynchings were not uncommon in parts of the south, and sometimes they were even popular daytime events in town. Or how about the way Indians were treated? Oaths were broken, lives were taken (on both sides, to be sure, but they sure got the crap end of the stick, no?). Again, this was entirely socially acceptable. Some of the worst of it was done officially.

To follow your argument that because "society" allowed - even encouraged - these offenses, all murder is malum prohibitum.

Granted, another part of society considered these murders and broken oaths to be wrong, but parts of society considered slavery and domestic abuse to be wrong as well.

LawDog, it is extremely rare that I find myself disagreeing with you, but I don't buy the idea that because society has in the past accepted an immoral behavior, it ceases to be "wrong". That may not be what you intended to say, but suggesting that slavery or domestic abuse is malum prohibitum is stating that they are not inherently wrong - that such practices are wrong only because they are illegal. I don't see a lot of strength to this position.
 
As long as the judicial system-attorneys and judges-can decide to withhold evidence and facts surrounding a case from the jury using all sorts of perverted legal logic, it is entirely acceptable for the jury to practice outright nullification of clearly oppressive 'laws'.
 
Hate to interrupt a good malum fight, but getting back to jury nullification, here are a couple of pretty good reads on the subject:

Juries: Just say no

"If the jury feels the law is unjust," according to the Fourth Circuit in the 1969 case U.S. v. Moylan, "we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence. … If the jury feels that the law under which the defendant is accused is unjust … the jury has the power to acquit …" (emphasis added).

Some buck at the notion of jury nullification. They see it as going against the rule of law – a dozen anarchists passing judgment on a whim. Endowed with such power and the guilty will walk free because a chili onion supreme didn't sit well in the stomach of the jury foreman.

Perhaps – but the founders didn't see it that way.

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution," said Thomas Jefferson in a 1789 letter to Thomas Paine. His comments presuppose laws which go above and beyond the national charter (such as drug prohibition today) and the jury's vital role in seeing that no citizens are harmed by such tyrannical legislation.

John Adams, the second American president, sang from the same hymnal. "It is not only [the juror's] right, but his duty," he said in 1771, "to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

Likewise, in an 1804 libel case, Alexander Hamilton argued that "the jury have an undoubted right to give a general verdict, which decides both law and fact."

"This distribution of power, by which the court and jury mutually assist, and mutually check each other," Hamilton continued, "seems to be the safest, and consequently the wisest arrangement, in respect to the trial of crimes. ... To judge accurately of motives and intentions, does not require a master's skill in the science of law. It depends more on a knowledge of the passions, and of the springs of human action, and may be the lot of ordinary experience and sagacity."

In other words, the people are deemed sensible enough to decide when one of their fellows is getting the shaft from an unjust law.
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Jury Rigging

For those who believe the sole legitimate role of a jury is to determine the facts, the answer is plain: Yes, the jurors had an obligation to put aside their personal views about medical marijuana and apply the law as it was explained to them. But for those who believe jurors ought to judge the law as well as the facts, it's clear they had a duty to acquit if they decided the law, or its application in this particular case, was unjust, unconstitutional, or both.
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LawDog, it is extremely rare that I find myself disagreeing with you, but I don't buy the idea that because society has in the past accepted an immoral behavior, it ceases to be "wrong".
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I'm not saying that. The root word in both mala in se and mala prohibita is mala..."bad" or "wrong".

You seem to be of the mind that mala in se equals "wrong", and mala prohibita equals "not wrong". That is incorrect.

An offense that is malum in se is wrong because it is wrong. An offense that is malum prohibitum may, or may not, be wrong, but someone has had to sit down and pass a law making the act illegal.

That may not be what you intended to say, but suggesting that slavery or domestic abuse is malum prohibitum is stating that they are not inherently wrong - that such practices are wrong only because they are illegal. I don't see a lot of strength to this position.
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*sigh*

Mala prohibita means a prohibited wrong. It is an act that society has prohibited.

If you have an act that society is performing, legally and above-board, and you can point and say, "Here. This is where this act became illegal" it is mala prohibita.

I can point you to the records of the British Royal Navy and say, "Before this date, the slave trade was a legal and above-board business. After this date, the Lords Admiral stopped the trade on the high seas. However, the act of slavery was still legal in the British Colonies and in the United States, until such-and-such dates when this and these laws were passed."

Legal one day, prohibita the next. Malum prohibitum.

If I were to cite for you an example of a society in which murder and oath-breaking were acceptable, would murder then fall under your definition of malum prohibitum?
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Murder involves killing...not all killings are murder.

I always have an open mind, though. Cite for me a society in which I could walk up to any stranger in the street and cut his throat for absolutely no reason and the society would find no wrong in that act, and I'll re-think my position.

LawDog
 
LawDog, it is extremely rare that I find myself disagreeing with you, but I don't buy the idea that because society has in the past accepted an immoral behavior, it ceases to be "wrong".
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Okay, let's hit this one from another direction:

We all agree that laws forbidding the smoking of marijuana are mala prohibita.

Why?

Moral, or immoral, has nothing to do with it. American society at the time that the marijuana laws were passed believed dope-smoking to be an immoral act, to the point that addicts were ostracized by society, but the act of smoking marijuana wasn't against the law.

So why are marijuana laws mala prohibita?

By your words, society 'accepted' addiction, even though most of society found addiction to be immoral.

Then, laws got passed and the use of marijuana and laudenum became illegal -- unlawful - to use. Such laws being mala prohibita.

Okay. Now. You have an act. Either marijuana use or slavery. There are no laws against marijuana use, and there are no laws against slavery.

Society feels that marijuana use is immoral, but there are no laws against it.

Some parts of society feel that slavery is immoral, but there are no laws against it.

Now. Somebody passes a law. Marijuana use was legal yesterday, but is illegal today. Society has decided that the act of smoking marijuana is a wrong which should be prohibited.

Again. Somebody passes a law. Slavery was legal yesterday, but is illegal today. Society has decided that the act of slavery is a wrong which should be prohibited.

Mala prohibita.

LawDog
 
LawDog ~

The Sawi tribe of Indonesia prior to the early 1960's.

pax
 
American society at the time that the marijuana laws were passed believed dope-smoking to be an immoral act, to the point that addicts were ostracized by society, but the act of smoking marijuana wasn't against the law.
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If society was so concerned about cannabis use when Congress decided that the power to tax included the power to prohibit cannabis growing, then why is it that the Speaker of the US House at the time, Mr. Rayburn, did not know what "marihuana" was exactly?

You'd think that if it was this huge problem, the Speaker would have heard about it, wouldn't you?

And by the way, who here thinks that when Congress was given the power to tax, that that power was meant to include the authority to regulate firearms and cannabis growing?
 
The Sawi tribe of Indonesia prior to the early 1960's.
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What was that missionary family's name? Richardsons?

Why did the hosting families not kill the so-called 'peace children'? Because there would be punishment handed down for killing the child, ie., it was wrong. Murder.

You'd think that if it was this huge problem, the Speaker would have heard about it, wouldn't you?
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I said, society considered addiction immoral and ostracized addicts. Which is a fact. I didn't say a damned thing about it being a "huge problem".

LawDog
 
LawDog ~

A Peace Child was the only protected individual in that society. Everyone else was fair game.

pax
 
I don't know how the terms are used legally or by learned scholars, but here's my two cents.

Mala in se: literally, bad in itself
Mala prohibita: literally, wrong [because it is] prohibited.

Now it seems to me that the only that the only point of contention is that [because it is] that I threw in in my version of the definitions. But if the fact of it's prohibition is not the reason why that act is considered wrong, then why make the distinction at all?
 
A Peace Child was the only protected individual in that society. Everyone else was fair game.
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Mmm. It's been a decade or three since I read anything about the Sawi, but I seem to remember that there was a proscription against mothers killing their infant children.

Anyhoo, they do understand a concept of murder, so they're off the list.

Doc, someone posted that mala prohibita acts shouldn't be prosecuted as crimes.

I pointed out a couple of crimes that are mala prohibita and that we might ought to not be ignoring.

The responses have been...interesting.

LawDog
 
I always have an open mind, though. Cite for me a society in which I could walk up to any stranger in the street and cut his throat for absolutely no reason and the society would find no wrong in that act, and I'll re-think my position.
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Lawdog,
In feudal Japan prior to the 1868 Meiji Restoration, a samurai could kill any impolite person who was not samurai or noble with no penalty. Also, many if not most societies as some point in their history did not consider the killing of any non-member to be murder. The names many cultures had for themselves translated literally as "The People" or "The Humans" while their name for foreigners literally translated meant "Not People" or "Not human."

Premarital sex in some Native American cultures was prohibited. However, it was quite OK to kidnap women from another tribe, enslave, and rape them. The members of the group were covered by the group's laws but every non-member was fair game for whatever whim you fancied.
 
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