An article from Australia caught my eye this week. A judge in Sydney urged jurors to not make “moral judgments” in a murder case:
The Supreme Court has heard she fell pregnant five times in the 1990s, terminating two pregnancies and keeping the births of three children, including Tegan, secret…
“Perhaps they are not decisions that you or I would have made,” Justice Whealy said, but “we are not here to pass moral judgment on decisions made by the accused”.
In that sense, it is quite true that juries are asked to consider the facts of the case, apply the law, and leave it at that. It is somewhat remarkable that juries can do so, day in and day out, on a wide range of cases in countries like Australia, Canada, and the U.S. Think about it: Jurors get nothing more than a 30-minute “job orientation,” a few words of wisdom from the judge, then the trial gets underway and they’re basically on their own. Juries are an institution that does hard work with little training and even less appreciation.
But in another sense, it’s a misnomer to say that juries don’t make moral judgments. Always in the background is the possibility of jury nullification, the choice of a jury to “nullify” the law and essentially override it. In the modern era, juries have done this for cases like physician-assisted suicide and war resistance, where laws may be out of synch with the public’s overriding sense of right and wrong.
Though juries rarely use that power, it is important to remember that they’re always making what is essentially a moral choice about whether to exercise that hidden power–one that they may not even be informed of in the U.S. (lest there be a mistrial). So in that particular sense, juries do, in fact, make moral judgments every day.