The Categorical Imperative

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Let's say there's a man and woman who live out in the country, far from any city, but there is one small town, say, 30 miles away. The woman has very recently been afflicted with medical condition that requires strict adherence to the administration of her prescribed medicine. Due to the condition, the man has made arrangements to obtain telephone service at their remote residence, and perhaps even move to a city so as to be close to medical personnel in the event of emergency involving the woman.

As the woman is in the process of going to get her medicine, prior to the instructed time, with due diligence, the effects of the disease unexpectedly strike her a bit more quickly than her doctor anticipated when he prescribed the times for administration. She has suddenly fallen into a coma that can be reversed only with the administration of the prescribed medicine.

The medicine is somewhere in the house but the man can't find it, search though he has, in great haste and increasing panic. The man knows she must be administered the medicine in x number of minutes or she will die.

The man also believes there is the correct medicine at the only pharmacy in the town 30 miles away. He has no phone, no communication, but he does have a vehicle. The vehicle has just enough gas to get him to the town, and back, in barely sufficient time to administer the medicine and save the woman.

He drives to the town and catches the pharmacist just before closing. He asks about the availability of the medicine, and sure enough, the pharmacist has the medicine in stock and enough of it to save the woman. But in his haste, the man forgot his money.

No money, no medicine. The pharmacist closes the pharmacy and goes home.

The man breaks into the pharmacy, takes the medicine, gets home, and saves the woman's life.

Should the man be prosecuted for burglary of a building and/or theft of the medicine? Why or why not?

Now let's add a few twists. Would your answer change if you had been told that the pharmacist's child also needed the medicine and there was just enough medicine to treat either the woman or the child, but not both -- either the woman or the child must die?

I've been saying "woman." Would it matter to you if the woman was the man's wife?

What if the man had pulled a gun on the pharmacist and commandeered the medicine at gunpoint? Or if the man had to shoot, but not kill, the pharmacist? What if the pharmacist died?
 
Seems like the more active the man has to be in breaking moral codes such as burglary against property vs. armed robbery and no physical harm to others vs. causing another harm qualifies the justification.

There is an interesting article that looks at brain imaging and trying to solve moral dilemmas that talks to whether it can be solved by logic alone or whether the emotional parts of the brain come into play. Here is the Link
 
Should the man be prosecuted for burglary of a building and/or theft of the medicine? Why or why not?


Prosecuted or convicted?

Given that most prosecutors are psycho media hounds, sure, he'll be prosecuted.

But as a juror, no way I'd convict.
 
I agree with Perham1 on the conviction point, but in a court of law we are required to apply the letter of the law, right? Technically a crime was committed. I wouldn't convict if I could get around that, though. The totality of the situation clearly favors the defendant's actions, in my opinion.

However, if he hurt someone in the process it changes things.
 
I would have offered the car as collateral, told teh pharmacist he could ride with me to get the money. Also would have offered to pay , by money, in kind, the pharmacist for his trouble.

Or gone to the 24 hour walgreens/cvs instead.
smile.gif
 
I think the distinction between prosecution and conviction is inapposite. Of course, you do what is necessary to save the life and break rules, laws, guidelines or whatevere you want to call them. BUT you do so knowing that whatever penalty comes is worth the life you are thinking you are saving. That doesn't mean there is no penalty. Jumping on a grenade has its concequences. They are probably pretty messy and permanent.

Do you not know you should pay for the pills? Do you not know you should fix the door you broke down? What about the shop/pharmacy that suffered these damages? Should they have to suffer your emergency without compensation? EMS always gets paid... ...

Now, those are civil compensation issues. Criminal liability is a different liabilty and if I, as an attorney, can't tell you what the law is, then I cannot then preach to someone about the issue of what one ought to know about criminal law, but it's still related. Thinking that something is not against the law is a tad different from not caring because it is an emergency. Maybe shouldn't say "not caring".

You can get away with killing someone else if it is necessary to save your life (and apparently in SA if you just don't want your illegal cockfighters stolen by a teenager). But, you cannot kill someone (the pharmacist's child) in order to save your intended recipient. I would think the knowledge of that situation would play into only the punishment phase.

If you knew or not makes a difference in how far you are willing to go to disregard rules, laws guidelines, etc to save the one YOU love (and sacrifice another and innocent person). And, therefore, it goes into how much punishment you are willing to accept (not that it is really your decision).

The pharmacist had (under your framing) a need and a legal right. Might ought to feel troubled, but not much more imho.

You do it with the knowledge that your love for that life and your actions invite/include penalties.

Just driving 30 miles is a penalty. Not a big one, but it's on the graph of what you are willing to do and pay for.

The "moral imperative", as presented, does not lend itself to anything other than discussion as it has variables, but it is interesting.

Including the possibility of the pharmacist's kid in the question makes it a harder decision for the husband. The pharmacist's decision doesn't really line up to the original question. That's about HIS or HER concience, but it doesn't seem like a legal obligation and doesn't really change the choices before the husband UNLESS he knows about the kid.
 
I think the distinction between prosecution and conviction is inapposite.

Oh, not at all. In other words, the distinction is very relevant.

For one, the decision to prosecute is largely, if not entirely, a matter for the state. Should the state enforce it's laws? Even the unjust ones?

The decision to convict, if within a jury trial, is up to the citizenry, not the state. The citizenry, using their well-known power of jury nullification can be the safety valve which depressurizes idiot prosecutorial behavior.

There are vast differences between the prosecution vs. conviction angle. To say it is not relevant is to miss the whole point. Let the state prosecute. Let the prosecutor charge the person for whatever reason: political (running for office, hoping to run for a higher office), vendetta, publicity, whatever. Let the citizenry be the sensible tool to ride herd on these prosecutors.
 
He should be prosecuted and convicted since he actually knowingly and willfully broke the law. But he could be then be pardoned or have his sentence commuted due to extenuating circumstances. But what do I know, not being a lawyer.
 
Perham,

It's inapposite to the resolution of THIS particular quandary. Not an irrelevant subject, but if you want to factor in the actor's knowledge of the law and maybe even the prosecutor or a judge and then have him guess what kind of jury he might get, you just make the original question just silly with all of those variables. I think the original question means to exclude those factors since knowing you will never get caught or prosecuted or convicted pretty much guts the original question.

Btw, jury nullification is just a phrase for what people think juries may have done when they refuse to convict someone who clearly broke the law. It has no basis in the law and should not be encouraged or condoned. Many people decry the fact that prosecutors, defense lawyers and judges (except for sentencing perhaps) fail to act with moral compasses. The system only works if they do just that. Juries should do the same. Do you really want justice to depend upon the caprice of whoever is in the room that day?
 
A corollary of that is the spectre of all-presbyterian juries always convicting baptists because they want to follow a christian teaching that tells them they should convist those pesky baptists regardless of the facts or law.

OK. It is a silly example, but I think you get the point. Just follow the facts and the law, please. The guy may have murdered the pharmacist, but because of procedural gaffes he can't be prosecuted and the jury is not made aware of that situation because of procedural safeguards. If they know of the unprosecuted murder or maybe a prior bad act, they might convict on the break-in charge when the guy didn't even break into the pharmacy.

It would be a shame to let a murderer go free, but the system and its ability to achieve the greater good is more important than a single conviction (or acquittal).
 
Just follow the facts and the law, please.

Lol.

You make this sound like it's so easily done.

As if the "facts" are never in dispute. Many people have no idea how unreliable eye-witness testimony is.

As if the "law" is always crystal clear.

Are you involved with the law in some way? If so, it's surprising that you would make such a grossly generalized statement. Making simplistic statements does not make the underlying issues simpler.
 
Btw, jury nullification is just a phrase for what people think juries may have done when they refuse to convict someone who clearly broke the law. It has no basis in the law and should not be encouraged or condoned.

Is this true? First, the "no basis in law" part. I think there is a "basis in law" for this. Hasn't the Supreme Court, a long time ago maybe, commented on it?

And while jury nullification perhaps should not be encouraged I find it a bit of a stretch to say that it should not be condoned. Then what are you going to do? Prosecute the jurors? Force the jury to come back with a verdict even if that verdict shocks their sense of conscience and justice?
 
Of course, we do not salt the fields of jurors anymore.

Jury nullification is a commonly understood term, but there is no legal basis for it. It is, quite frankly NO different from the so-called runaway jury in a civil case and we have literally gutted our civil justice system out of fear of that "boogeymen".

Just make your findings of fact and let the judge apply the law to the facts. Justice demands that all be treated equal. You really don't want to walk into a courtroom and feel like you (for whatever reason) will be treated differently (better or worse) than a different person. Off the original subject.

I will maintain that the issue of prosecution or conviction should not play into the husband's imperative. It's either right or it's wrong. Getting into the gray invities arbitrariness and uncertainty.

I am all for mercy for the husband. That is where sentencing comes in. Convict his *** and then give him probation if you are the judge or on the jury which decides punishment. He IS guilty in the original question. The fact is that he broke into the pharmacy and the law says that is a crime. The record should reflect that. Whether or not he receives punishment is a different question.
 
Jury nullification is a commonly understood term, but there is no legal basis for it.

Again you make this statement and again I recall this being part of a Supreme Court comment. Therefore, there is a legal basis for it. Stop saying there isn't. There are perhaps even other cases which provide a legal basis for nullification. Should we google this?

Justice demands that all be treated equal.

Oh my. Where to begin with this hopelessly naive comment. Justice demands no such thing, else there would be equal quality of representation (lawyers) on both sides. There is no such requirement.
 
"Therefore, there is a legal basis for it. Stop saying there isn't. "

There isn't anything in the NFL or NCAA rulebook that deals with choking or quitting, either. Doesn't mean it doesn't happen, but also doesn't mean it's a part of the rulebook. You have attached an unusual definition to the concept of "legal basis".

Let's move on.
 
There isn't anything in the NFL or NCAA rulebook that deals with choking or quitting, either. Doesn't mean it doesn't happen, but also doesn't mean it's a part of the rulebook. You have attached an unusual definition to the concept of "legal basis".

Let's move on.


No, let's stay on this topic for a bit.

Here is a google search result:

The following are significant citations from the United States Supreme Court and Federal Appeals Courts. They are by no means exhaustive but, rather, are representative of a seemingly endless series of references found throughout this nation's legal history:

"The jury has the right to judge both the law as well as the fact in controversy." --John Jay, first United States Supreme Court chief justice, 1789.

"The jury has the right to determine both the law and the facts." --Samuel Chase, signatory of the Declaration of Independence, U. S. Supreme Court Justice, 1796.
"It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience even though in direct opposition to the direction of the court." --John Adams, " Life and Works of John Adams "253-255 (C.F. Adams ed. 1856).

"The jury has the power to bring a verdict in the teeth of both law and fact." --U.S. Supreme Court Justice Oliver Wendell Holmes, 1902.

"The law itself is on trial quite as much as the cause which is to be decided." --Harlan F. Stone, 12th Chief Justice of the U. S. Supreme Court, 1941.

"...juries are not bound by what seems inescapable logic to judges..." --U.S. Supreme Court, Morissette v United States, 1952.

"The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge," [and, the jury has an] "unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge..." --U.S. Court of Appeals for the District of Columbia, United States v Dougherty, 473 F 2nd 1113, 1139, 1972.)
"We recognize...the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." --United States Court of Appeals for the District of Maryland: (US vs Moylan, 417 F 2d 1002, 1006 (1969)).

Several states, among them Pennsylvania, Georgia, Maryland and Indiana, have written into their constitutions that it is the duty of the jury to not only judge the facts, but the law as well.

So you are still clinging to your position that there is no legal basis for jury nullification?
 
So let me see if I have this correct: state constitutions are merely dicta? Is it obiter dicta, at that?

You have provided nothing but your conclusion: no data, no evidence, nothing. Just parroting back a set response. A response, I might add, that appears to be the talking point of the legal "profession".

But, assuming my quote is correct, you are saying that the states' decision to modifiy their constitution to allow for jurors to determine law as well as fact is a) not grounded in law, and b) is merely obiter dicta?

I can see why you wish to disengage from this topic.
 
I don't wish to engage because you have the hairs on the back of your neck up, it's a subject I don't seem to be connecting with you on, and you don't come to the discussion with much knowledge on the subject I'm trying to explain. Most importantly, it's not anything that matters. If you just want to argue, fine. I don't feel like an argument for no purpose. Sometimes you just learn something new, but I'm not going to learn anything on the subject from you and I just don't care enoughabout the subject to continue to try to help you understand. I'd really just rather move on and that's what I'm going to do.
 
Here are more search results showing that the power of jury nullification is based in the law.

Feel free to refute these, preferably in a substantive fashion. But dismissing things out of hand because it comes from google seems to be more your speed.

. Do juries have the power to nullify? What is the legal basis for this right?

The right of juries to nullify is grounded in federal case law. The Sixth Amendment guarantees the right to trial by jury in criminal cases. In one notable case, the court concluded that the right to trial by jury included the right to acquit the defendant because it had no sympathy for the government’s position. See: U.S. v. Datcher, 830 F.Supp. 411 (M.D. Tenn. 1993). The jury acts as the “conscience of the community,” and the power to nullify serves to “prevent oppression by the Government.” Id. at 414.

Courts have recognized that a criminal jury has the right to acquit the defendant, regardless of the strength of the evidence. For example, in Horning v. District of Columbia, 254 U.S. 135 (1920), the Supreme Court explained that “The judge cannot direct a verdict.” The jury has the right, the Court continued, “to decide against the law and the facts.” In another case, U.S. v. Trujillo, 714 F.2d 102, 106 (1983), the court recognized that a jury may deliver a verdict that is at odds with the evidence or the law. And in Cargill v. State, 340 S.E.2d 891, 914 (1986), the court recognized that a jury possesses “a de facto power of nullification, i.e., a power to acquit the defendant regardless of the strength of the evidence against him.”

Now, of course, the above could be a load of crap. If so, tell us why.
 
....on the subject I'm trying to explain.

But you're not really trying to explain anything. All you bring to the table is a statement/conclusion without any substantive reasons.

If you really want to explain, then explain. But parroting back the legal party line that "jury nullification has no basis in law", when I have provided evidence to the contrary, falls far short of an "explanation".

It is quite clear that jury nullification does have a basis in the law, and as clear that you are in denial of that fact, for whatever reason.
 
I'll try my best. It is recognized that while juries are not allowed to ignore the law and facts, as a matter of practicality there isn't much the courts can do about it. There is no LEGAL right recognized as such. There is a DE FACTO right since there is nothing anyone can do about it. There are quite a few rules in place to prevent counselors from trying to ask for "nullification" from juries. It really IS about that simple now that I took a moment to think about it.

I don't and have never practiced criminal law. Otherwise, I would paste a sample jury instruction and charge question.

You are instructed that a person is guilty of the charge of breaking and entering if he blah, blah, blah.

Is he guilty?

Yes____ No_____

Something along those lines. The instruction is where the judge instructs on the law and then the jury applies the facts (as they see them) to the instructed bit of law. They are NEVER EVER EVER told that they may ignore the law. Jury nullification, as a phrase, is bandied about by people and its meaning has been diluted from its original. The original meaning was that the jury acquitted because they disagreed with the LAW. They have always been free to see the facts as they wish. As a PRACTICAL matter, a jury can acquit because they disagree with and refuse to follow the law, but since they always had the power to acquit based on the facts, it's really almost always a moot point.

As for your "citations". Yes. Google is a fine tool. Not very good for legal research, but more importantly, Google isn't going to make me a licensed electrician or accountant or certified lifeguard or doctor. It's great at providing information on all kinds of helpful subjects, but when you are talking about caselaw precedent it's pretty poor and without some training and experience it's really next to impossible for most nonlawyers (many licensed attorneys as well. We've got ours, too) to understand the importance of what is being said and who is saying it. I glanced at your "case" quotes and saw something out of the middle district of Tenessee. Even if it were not Tennessee and the obvious hillbilly potential of a magistrate judge with no toofers who was appointed by middle tennessee graft and corruption then it would still be very "weak" authority for anything. Without reading the entire opinion, it's impossible to tell if the quotation even has any real bearing on THAT case, much less any other. In other words, it is impossible to tell if the quote was the holding of the case or not. Just an example of why Google research is no substitute for reading the entire case. Please don't morph this into a pissing contest over Google research.

OK?
 
There is no LEGAL right recognized as such.

Ok. Stop right there.

That is not the same thing as saying there is no legal basis for jury nullification. You are either confused or are intentionally muddying the waters. Also, saying there is no legal RIGHT is not the same as saying there is no legal POWER for a jury to nullify.

There is clearly a legal basis for jury nullification despite your insistence to the contrary.

I would be interested in hearing the opinions of others.


******* edit to add *******

It is my observation that you have been guilty of intellectual dishonesty two times over in this thread.

First, you are now attempting to frame the issue as one of "legal rights" when originally it was "legal basis"; and second, you choose to focus on the term "rights" instead of the more relevant term "power".

I have never put forth the argument that a jury has the "right" to engage in jury nullification.
 
After arguing half a dozen cases before the 5th Circuit and presenting a dozen others, after arguing 2 dozen state court appeals and presenting at least twice that many more and after arguing 1 case before the Texas Supreme Court and presenting a half dozen others, I walked away from a lucrative law practice because I can't stand arguing useless points. I used to think it mattered to the people on whose behalf I argued and I used to enjoy the money. I don't anymore. I don't often enjoy arguing points that aren't useless either.

Why do YOU argue useless points? I gave you (and myself) an out of this stupid discussion and you just couldn't let it go. Is there nothing going on over on the West Mall?
 
I agree that this is a minor issue, but whether it's useless to argue whether jury nullification indeed has "no basis in law" is another thing.

My point is very simple: there is a legal basis for jury nullification. This does not mean it is a legal right. I am simply correcting your error.
 
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