An Interesting Conversation on Rights, Powers, and Lies

Mark Bennett, a Houston criminal defense attorney, recently started a conversation on State's Rights. His position is that the State has no rights; the State has powers. While his examination of the subject has some flaws (he claims rights cannot be maintained using force, a statement I find questionable: if someone seeks to kill me, do I not have a right to defend myself, thereby maintaining my right to live through violent self-defense?) I think Mark touches on a very real issue, that I like to call the rights/powers dichotomy. It arises quite often in law. It is said that someone has a power to breach a contract, but not the right to do so (hence, they can be sued and forced to pay damages should they exercise their power.)

Clearly, not all powers are rightfully exercised. Others may be. Does the rightful exercise of a power imply, or even prove, the existence of a right?

Specifically, do jurors have rights - or just powers? It is commonly said that jurors have the power, but not the right, to nullify. But is there a substantive difference between a lawfully exercised power and a right? If so, what is this difference? Or is it just a way of saying that we consider some lawfully exercised powers to be on a higher plane than others, so we call them rights -- even though their exercise is indistinguishable?

In other words, is the rights/powers dichotomy a real dichotomy, or a false dichotomy? A false dichotomy exists when a debater attempts to position two things as opposites (either a right or a power) when they are not incompatible. In fact, are rights not powerful things?

The distinction between juror rights and juror powers, viz a viz jury nullification, is used to justify instructing jurors that the do not have this prerogative, and for denying lawyers a chance to voir dire jurors on it or mention it in argument. This does not affect the rights or powers of the jurors, however: it only affects the rights or powers of litigants and their lawyers.

Jurors do not lose any lawful options in the jury box merely because they have not been informed of them: it merely leaves those who were not already aware of their existence in a state of ignorance regarding them. The rights that have been denied are those of the litigants, who no longer have the legal right to demand an instruction on the jury's prerogative, or the right to inform the jurors of the right during voir dire or argument. Nor do they have the power to do so, if they proceed in doing so they may be disciplined by the Court or a mistrial declared.

The real issue, as I see it, is when the ignorance of jurors is replaced with lies. Jurors do retain the prerogative to nullify: they cannot be punished for their verdict, and a substantial number of jurors do decide not to convict on extra-legal grounds. When a trial court tells a jury that they cannot do this, then the jury is being positively lied to. It is hard to respect a legal system that depends on positively lying to jurors in order to maintain control over their verdict.

Merely because Courts have the power to lie to jurors does not mean they have the right to do so. Until the 1970's, most juries in the US were instructed that if the State proved its case, they may convict, but that if they had a reasonable doubt, they must acquit. This is sufficient to acknowledge the independence of the jurors, without raising a distractive debate about jury nullification. It is honest.