The average persons more powerful weapon against police misconduct is Jury Nullification. Refuse to convict defendants until the police start obeying the law.
I got called to serve jury duty several years ago, and being somewhat familiar with jury nullification, sought advice from a lawyer friend.
I don't remember the exact details of his advice, but it was generally this:
1) Don't even hint that you're aware of jury nullification during jury selection and examination.
Obviously don't lie if asked a direct question about it, but that doesn't really happen. Instead, you might be asked something like, "If the evidence proves the defendant guilty beyond a reasonable doubt, can you enforce the law regardless of your personal beliefs about whether the law is correct?" Just answer "yes" and be quiet – unless you honestly don't think so. (Remember, you won't know much, if anything, about the case at this point. So, abstractly, you probably can set aside personal beliefs if the facts of the case warrant it.)
2) Don't ever use the words "jury nullification" when deliberating with the other jurors.
Judges can and will remove jurors who are openly engaging in jury nullification. There have even been instances of judges holding jurors in contempt for it, but according to my lawyer friend, those cases were overturned. Regardless, you will likely be removed from the jury and possibly have further hassles.
3) In jury deliberation, remember that you don't have to convince the other jurors of your position. If you don't feel right convicting the defendant, you don't have to. Just stick to your guns and let the jury be hung.
I was glad I sought advice, because I ended up engaging in jury nullification.
In my case, the defendant was charged with a DUI for essentially being obnoxiously drunk in his driveway on private property. He was playing music through his truck speakers, with the windows down. The engine was not on, but his keys were in the ignition – to enable the electrical system. He was having a party, with friends over, a grill going, etc. He had not signaled any intent to leave the party at his own home, and the prosecution didn't argue that he was planning to drive anywhere. But in my state, being intoxicated and having your keys in the ignition (or even initiating a sequence of events that will result in driving) is grounds for a DUI.
I understand the reasons for the law being worded that way. If somebody is obviously drunk and walking towards their car to leave a bar, cops need to be able to stop him before he actually starts driving. However, in my case, what actually happened is the defendant mouthed off to the cops, and my interpretation is they were punishing him for being disrespectful. They could have just told him to turn down his music or issued him a noise violation and moved on. He was not planning to drive his car anywhere or endanger anyone. Instead, they unnecessarily escalated the situation.
A DUI can be a felony and can result in losing your job or being excluded from future jobs. It's serious. I didn't think this guy deserved that – despite coming across as a total asshole during his testimony. I tried my best to convince the other jurors, but they all ultimately felt they had to enforce the law as it exists. According to the law, he did commit acts that technically constitute a DUI. So, they all voted guilty – even though many thought it "wasn't fair."
After 8 hours of deliberation, we ended up with a hung jury and me being the sole dissenter. I will admit it was exhausting to keep arguing for the guy, when everybody is tired and just wants to go home. I was also very relieved when I went home that night, searched public convictions, and found none for the defendant.
Anyway, if you get called to serve on a jury, please don't try to get out of it. It's a great honor and responsibility, and we need more intelligent, free-thinking people in our juries. But do educate yourself on jury nullification beforehand.
You can't exactly say "I don't want to apply the law in this particular case."
1) We heard a conversation between the senior officer and the arresting officer. (Actually a reading of a transcript of the conversation, because the original recordings were "lost".) I don't remember all of it, but the gist was the trainee asked if she should charge the defendant with a DUI and the senior office replied something like "It's your call. We could go either way."
2) The jury was never actually told the defendant's BAC. I don't know exactly why, but my impression is there was some technicality that made the test inadmissible.
3) We heard testimony from the arresting officer about the field sobriety test. However, she was a new officer still being trained, and this was only like the 5th real field sobriety test she had conducted. And the senior office had her restart it about halfway through, for reasons that we weren't allowed to hear.
4) We heard testimony that the guy had drunk ~5 beers in the 2 hours before the cops arrived.
I'm sharing those now, because they're the crux of the arguments I made.
I tentatively started out trying a line of reasoning that if the senior officer thought they could have not charged him, that means the cops have discretion about when it's appropriate to enforce a law fully. And don't we as jurors have a similar right. Isn't that our role in this? If it's just a matter of enforcing laws, a judge is better qualified. Our humanity and discretion is the point of having a jury of peers.
I tried reminding people of times when they probably broke this law, e.g., tailgating, at the beach, at a campground. There are lots of instances where somebody might have their key in the ignition, while consuming alcohol, but they shouldn't be charged with a DUI. There's the letter of a law and the spirit of the law. Yadda yadda.
I actually thought I was getting to some folks, until the foreman reread the judge's instructions to the jury, which were basically, "Your duty is to apply the law as it is given to you, whether you agree with the law or not." That type of wording is common in jury instructions, but I think it should be disallowed. It immediately shut down that whole semi-jury-nullification argument I was making. The rest of the jury felt they had to enforce the law – even though I tried to make the case that cops are also duty bound to enforce the law and they use discretion about when to charge people, likewise with district attorneys. They wouldn't buy it. The judge's instructions were too authoritative – or I wasn't a good salesman.
So, I figured I'd pushed the jury nullification envelope as far as I could safely. I changed my tactic to argue that I didn't think the guy was drunk – at least not beyond a reasonable doubt.
We didn't find out his BAC. His sobriety test was inconclusive, for me. And while 5 beers in 120 minutes is a lot, this was a pretty big guy, probably 6'1", 230 lbs. That's my general weight class, and I've used the BAC calculators before and played with a friend's breathalyzer. I know I can have 3 (12oz, regular bav) beers per hour and stay right around 0.08%. (I wouldn't drive after drinking 3 beers in an hour, but it's good to be aware.)
So I just kept arguing that I wasn't convinced that he was drunk. One of the other jurors actually got pretty belligerent, a few exchanges like this (almost verbatim): Them: "COME ON! You really don't think he was intoxicated after chugging 5 beers? Is that how you party? Drink a sixer and hop in the car?" Me (ignoring the ad hominem bullshit): "He probably was intoxicated. But likely is not the same thing as 'beyond a reasonable doubt'. And I'm not giving this guy a DUI for possibly, maybe being intoxicated and playing music from his truck!"
He kept pushing me, and finally I just turned to him and said, "Look, I don't have to convince you. I don't have to even talk to you. I'm voting my conscience. You vote yours." That finally shut him up, mostly. In his defense, this was like hour 7 of deliberations.
I'm really glad I had this experience, but it was somewhat frightening to watch what the other jurors would do just because the judge gave them instructions. :(
My understanding is that it's common to retry cases like this, but I don't really know.
Guy had been charged with having a concealed weapon. He and a couple of friends had been out shooting at some remote location where it was perfectly legal to shoot. They had a bunch of different guns with them... rifles, pistols, revolvers, etc which were in a couple places in this guy's truck, mostly on the tailgate and a few they were done with in the cab.
Well, a fish and game officer came along, and decided to check these guys out. She got permission to search and found a revolver in the cab that was under a shirt that one of the guys had taken off and tossed on the seat. Based off this, he got charged with having a concealed weapon. The way the law was written, he was actually guilty.
Took us 5 minutes to vote not guilty and send this poor guy home. I was very proud of my fellow jurors that day.
They need to stop him, explain it is his lucky day and call him a cab.
However, that a person who isn't driving ("D") cannot possibly be driving under the influence ("DUI") isn't a personal belief. It is a belief which is rational with an arguably objective basis.
If I were asked, "can you enforce the law regardless of your personal beliefs", I would assume that it refers to things like being soft/strict on someone because of religion, race, politics or whatever. So that I could answer "yes" with confidence.
If asked "can you enforce the law regardless of rational convictions based on objective reasoning", I would say, of course, no fucking way.
Because then, what is the point of the jury, if not to apply reason? An expert system could be programmed to understand the law and just spit out a sentence based on matching the apparent facts to the rules.