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Jury Nullification With Chinese Characteristics

By Dan Harris and Steve Dickinson

Stan Abrams of the always excellent China Hearsay blog just posted on the decision of a Guangzhou court to dramatically reduce a previous 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 American lawyers we 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.

Full post as published by China Law Blog on April 08, 2008 (boomark / email).