- 期刊
- OpenAccess
Trial by Jury: Nullification and Why It Is Important
陪審團審判制：否定權及其重要性
摘要
美國除了三權分治－行政、立法、司法以外，還有第四部門在政府之外，凌駕政府的決策之上。這第四部門就是陪審團，當然在審判進行當中陪審團判定自己同胞違法與否的狀況，但這並不是他們功效的全部，陪審團其實能夠決定法律的效力是否實際可行，以決定是否某法可以適用。在遭遇人民不贊同的惡法時，獨立陪審團不會採用它，因此也就間接判定它的無效。此事很重要，因為這樣的陪審團反應常會導致日後的修法。美國的一個事例就是，州的立法機構決定從眾多的謀殺案件的背景和動機中，將謀殺罪大致分成三種：冷血行兇、瘋狂行兇與過失殺人。
並列摘要
Besides the three branches of governance in the U.S.--the executive, legislative and judicial--there is a fourth division that actually stands outside government and can override its decisions. This fourth division is the jury. In trials by jury, of course, juries sit in judgment over their peers, but that is far from all: juries can also decide the law. That is, they can decide whether the law should be applied at all. In the case of a bad or unpopular law, an independent jury will hardly ever apply it, thereby rendering it null and void. This is of crucial importance because such a jury response will often lead to changes in the written laws. One example is the decision of state legislatures to distinguish from among the various circumstances of murders and the motives of the murderers by categorizing this crime into the three degrees: roughly, cold-blooded, hot blooded and accidental through negligence (manslaughter). Unfortunately, in the long history of trial law in the U.S. there have been numerous times when judges have tried to deny or have actually denied juries the right to decide the law, instructing them to decide only the facts. Even today, because the judiciary is often openly hostile to the doctrine of jury independence, jurors are unaware of the limitations of judicial power and the extent of their own. Instead of instructing them about this right, judges and prosecutors seem to wish to keep them ignorant of it. And defense attorneys may very well have their hands tied by judges who vehemently resist any attempt to inform them of it. Thus, only a small portion of today’s jurors appear to be aware of it even after the trial is over. In contrast, the Fully Informed Jury Association calls for juries to be instructed about this right before each trial, thus: ＂An accused or aggrieved party's right to trial by jury, in all instances where the government or any of its agencies is an opposing party, includes the right to inform the jurors of their power to judge the law as well as the evidence, and to vote on the verdict according to conscience.＂ The author of this article sees such instruction as an essential right of American citizens to stave off the ever-growing encroachments of government. Any wish to curtail it is not only unconstitutional, it is unethical.