LINCOLN-DOUGLAS DEBATE
November-December 2015
Dr. John F. Schunk, Editor
“Resolved: In the United States criminal justice system, jury nullification
ought to be used in the face of perceived injustice.”
AFFIRMATIVE
A01. U.S. CONSTITUTION PROTECTS JURY NULLIFICATION
A02. NULLIFICATION HAS NOBLE HISTORY IN U.S.
A03. CRIMINAL JUSTICE SYSTEM UPHOLDS NULLIFICATION
A04. JURY NULLIFICATION PROTECTS AGAINST TYRANNY
A05. JURY NULLIFICATION BEST ACHIEVES JUSTICE
A06. MARIJUANA LAWS JUSTIFY NULLIFICATION
A07. RACIAL DISCRIMINATION JUSTIFIES NULLIFICATION
A08. JIM CROW INJUSTICE WASN’T DUE TO NULLIFICATION
A09. JURIES WILL NOT ABUSE POWER OF NULLIFICATION
A10. NULLIFICATION DOESN’T UNDERMINE RULE OF LAW
NEGATIVE
N01. THERE IS NO RIGHT OF JURY NULLIFICATION
N02. NULLIFICATION HAS A MOTLEY HISTORY IN U.S.
N03. NULLIFICATION DOES NOT UPHOLD DEMOCRACY
N04. RACIAL DISCRIMINATION DOESN’T JUSTIFY NULLIFICATION
N05. NULLIFICATION HAS PRODUCED RACIAL INJUSTICE
N06. NULLIFICATION CANNOT ASSURE JUSTICE
N07. NULLIFICATION CAN CONVICT THE INNOCENT
N08. NULLIFICATION UNDERMINES THE RULE OF LAW
N09. WRONGFUL ACQUITTALS DESTROY CONFIDENCE IN LAW
N10. NULLIFICATION RISKS CHAOS AND ANARCHY
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SK/A01. U.S. CONSTITUTION PROTECTS JURY NULLIFICATION
1. U.S. CONSTITUTION GUARANTEES RIGHT TO JURY TRIAL
SK/A01.01) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1103. The
right to a trial by jury in criminal cases is a fundamental constitutional guarantee. In fact,
it is so fundamental that the right applies to the states as incorporated into the Fourteenth
Amendment. Additionally, the origins of the jury system date back to the guarantee to
trial by jury provided in the Magna Charta, and the Founders universally considered a
jury trial in criminal cases to be important.
2. DOUBLE JEOPARDY CLAUSE MAKES NULLIFICATION POSSIBLE
SK/A01.02) Roger Root [Advisory Board, Fully Informed Jury Association],
SETON HALL CIRCUIT REVIEW, Fall 2011, LexisNexis Academic, pp. 9-10. The
double jeopardy clause of the Fifth Amendment, for example, places in the jury's hands
the ability not only to nullify a law's application but to effectively end the government's
prosecutorial attack on a fellow countryman altogether. "[T]he hard core of the doublejeopardy clause is the absolute, unquestionable finality of a properly instructed jury's
verdict of acquittal, even if this verdict is egregiously erroneous in the eyes of judges."
SK/A01.03) David Karman [Georgetown U. Law Center], GEORGETOWN
JOURNAL OF LEGAL ETHICS, Summer 2015, LexisNexis Academic, p. 619. The
Constitutional foundation for the power of jury nullification is found in the Fifth
Amendment, which prohibits any person "for the same offence to be twice put in
jeopardy of life or limb . . . ."
3. JURY NULLIFICATION IS ACQUITTAL OF A GUILTY DEFENDANT
SK/A01.04) Stacey P. Eilbaum [Cornell U. Law School], CORNELL LAW
REVIEW, March 2013, LexisNexis Academic, p. 715. Under most definitions of the
term, "jury nullification" occurs when a jury acquits a defendant who it believes "is guilty
under the law." The term, however, is an umbrella term for many different types of jury
behavior. Darryl Brown delineates four categories of jury nullification: nullification in
response to norm violations, nullification in response to biased or unjust applications of
law, nullification in response to uncorrected rule violations, and nullification to uphold
illegal and immoral community norms.
SK/A01.05) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, pp. 1104-1105.
For example, Black's Law Dictionary defines jury nullification: “A jury's knowing and
deliberate rejection of the evidence or refusal to apply the law either because the jury
wants to send a message about some social issue that is larger than the case itself or
because the result dictated by law is contrary to the jury's sense of justice, morality, or
fairness.”
4. THERE IS NO PENALTY FOR JURY NULLIFICATION
SK/A01.06) HARVARD LAW REVIEW, May 2014, LexisNexis Academic, p.
2098. The force behind general nullification does not depend on it being conferred by
right. Jury acquittals are, by design, unreviewable, and jurors are not held to legal account
for the reasons undergirding their votes to acquit. Jurors are not formally asked to explain
their acquittals.
SK/A01.07) HARVARD LAW REVIEW, May 2014, LexisNexis Academic, p.
2098. Even if only a power, whatever the rhetoric, nullification is eminently legal in that
jurors cannot be punished for engaging in the practice itself.
SK/A02. NULLIFICATION HAS NOBLE HISTORY IN THE U.S.
1. ZENGER ACQUITTAL TOOK PLACE IN COLONIAL AMERICA
SK/A02.01) Monroe H. Freedman [Professor of Law, Hofstra U.], HOFSTRA
LAW REVIEW, Summer 2014, LexisNexis Academic, p. 1127. For example, in 1735
John Peter Zenger was prosecuted for seditious libel for printing a journal that criticized
the colonial governor of New York for crimes and other faults. The common law rule at
the time was that "the greater the truth, the greater the libel," so truth was not a defense to
a charge of libel. When Zenger's first two lawyers were disbarred for zealously
representing him, Zenger had to go out of the state for a lawyer and retained Andrew
Hamilton of Philadelphia (no relation to Alexander Hamilton). Hamilton in effect
admitted that Zenger had committed the facts constituting the offense. But, without using
the phrase "jury nullification," Hamilton argued to the jury that they had the power to
decide the law as well as the facts, and that they should disregard the judge's instructions
and recognize truth as a defense. The jury did so, and acquitted Zenger.
SK/A02.02) Editorial, DENVER POST, August 19, 2015, p. 21A, LexisNexis
Academic. Jury nullification is understandably controversial and is especially resented by
courts and prosecutors. It is the notion that jurors can ignore the law and follow their
conscience when they believe the law would dictate a miscarriage of justice. But it is
hardly a new concept. In one of the most celebrated colonial trials, for example, a jury
acquitted newspaper editor Peter Zenger of libeling the royal governor even though
Zenger was technically guilty under the law and the judge basically told jurors to find
him guilty.
2. FOUNDING FATHERS APPROVED OF JURY NULLIFICATION
SK/A02.03) Roger Root [Advisory Board, Fully Informed Jury Association],
SETON HALL CIRCUIT REVIEW, Fall 2011, LexisNexis Academic, pp. 13-14. "Jury
nullification," or rather, the right of jurors to check the power of government by
acquitting a factually "guilty" defendant, was approved by all of America's foremost
founding fathers. Amar notes that "the writings of some of the most eminent American
lawyers of the age--Jefferson, Adams, Wilson, Iredell, and Kent, to mention just a few"-cast approval of the nullification right of juries. John Adams stated that "it would be an
'absurdity' for jurors to be required to accept the judge's view of the law, 'against their
own opinion, judgment, and conscience.'"
3. JURY NULLIFICATION WAS USED TO PROTECT RUNAWAY SLAVES
SK/A02.04) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1107. The
second category of jury nullification - nullification in response to unjust laws - consists of
jury acquittals of a defendant who is otherwise guilty under a criminal statute because the
jury disagrees with content of the statute. In these cases, the jury reasons that the law is
unjust. Thus, the law should never apply under any circumstance. Prime examples of this
category are acquittals of abolitionists who were accused under the Fugitive Slave Act of
1850. More recent examples include acquittals of defendants accused of violating
Prohibition laws in the 1920s. In these examples, the juries acquitted simply because they
did not agree with the law.
SK/A02.05) Editorial, DENVER POST, August 19, 2015, p. 21A, LexisNexis
Academic. In the 19th century, Northern juries refused to convict abolitionists for
harboring runaway slaves. In the 20th century, juries often balked at enforcing
Prohibition and later, on occasion, at what they considered overly harsh drug laws or laws
governing sexual behavior.
SK/A03. CRIMINAL JUSTICE SYSTEM UPHOLDS NULLIFICATION
1. COURTS HAVE RULED THAT NULLIFICATION IS LEGAL
SK/A03.01) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1115. Soon
after the ratification of the Constitution, the Supreme Court decided the case of Georgia
v. Brailsford, which held that juries can "determine the law as well as the fact in
controversy." In other words, juries had the right to decide the law and nullify it.
Furthermore, lower courts supported this view throughout much of the nineteenth
century, allowing juries to reject the law as provided by judges in criminal cases.
SK/A03.02) Monroe H. Freedman [Professor of Law, Hofstra U.], HOFSTRA
LAW REVIEW, Summer 2014, LexisNexis Academic, p. 1137. The Framers of the
Constitution understood that the right to trial by jury includes the jury's power to prevent
unjust convictions and unjust punishments through jury nullification. A century later in
Sparf, the Supreme Court acknowledged the original intent regarding nullification.
2. STATE CONSTITUTIONS PROTECT JURY NULLIFICATION
SK/A03.03) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1119.
Historically, state constitutional provisions have provided justification for jury
nullification. Three states - Georgia, Indiana, and Maryland - have constitutional
provisions expressly delegating to the jury the power to determine the law in criminal
cases.
SK/A03.04) HARVARD LAW REVIEW, May 2014, LexisNexis Academic, p.
2112. The conception of the jury as an institutional check on the branches of government
strengthens the nullification position. Several state constitutions provide that juries
discern both law and facts for crimes in which the government is the victim, such as
criminal and seditious libel, out of a fear that the state behemoth would be draconian
against its citizenry. In cases where the government, as disciplinarian, is exerting great
power, these states long ago enshrined nullification as a means of curbing that incredible
authority.
3. STATE LAWS UPHOLD JURY NULLIFICATION
SK/A03.05) HARVARD LAW REVIEW, May 2014, LexisNexis Academic, pp.
2097-2098. A recently enacted New Hampshire law that lifts the veil on jury nullification
has renewed the debate. The law enshrines nullification as a jury "right," granting defense
attorneys in the "Live Free or Die" state the unfettered ability to inform juries of their
ability to nullify. A companion bill introduced in the state's House of Representatives
would additionally require judges to inform juries of the nullification power in every
criminal case.
SK/A04. JURY NULLIFICATION PROTECTS AGAINST TYRANNY
1. FOUNDING FATHERS SAW JURY AS A BULWARK AGAINST TYRANNY
SK/A04.01) Roger Root [Advisory Board, Fully Informed Jury Association],
SETON HALL CIRCUIT REVIEW, Fall 2011, LexisNexis Academic, pp. 10-11. In a
case where criminal acts are recorded by a dozen surveillance cameras, or where a
hundred neutral and disinterested people saw the accused commit the crime, why offer
him a jury trial at all? Or when a criminal defendant openly admits under oath on the
witness stand that he committed every element of an offense, why grant him the right to
be acquitted by a jury at all? The answer lies in the Framer's fundamental distrust of
government power, and ultimately, in the Framers' intention that jurors act as buffers
between the government and their neighbors. The Framers saw the jury as "the ultimate
check against a tyrannical government."
SK/A04.02) Roger Root [Advisory Board, Fully Informed Jury Association],
SETON HALL CIRCUIT REVIEW, Fall 2011, LexisNexis Academic, p. 12. All of this
discussion yields the conclusion that the Constitution's Framers intended the provisions
of the Constitution described above to enshrine the absolute power of juries to acquit a
factually guilty defendant, and to determine both the law and the facts in jury trials. That
the Constitution's Framers intended jury trial to represent a check on government power
rather than a mere fact-finding device is also resoundingly clear from the historical
record.
SK/A04.03) Gilbert G. Garcia [Member, State Bar of Texas], LEGAL MONITOR
WORLDWIDE, February 20, 2014, pNA, LexisNexis Academic. In "The Federalist No.
83," Alexander Hamilton considered trial by jury an essential safeguard against
whimsical prosecutions of "pretended offences" and "arbitrary punishments upon
arbitrary convictions" - what he regarded as "the great engines of judicial despotism."
SK/A04.04) Monroe H. Freedman [Professor of Law, Hofstra U.], HOFSTRA
LAW REVIEW, Summer 2014, LexisNexis Academic, p. 1129. In discussing the
guarantee of trial by jury in criminal cases, Alexander Hamilton wrote in The Federalist
that both the friends and adversaries of the proposed Constitution concurred in "the value
[that] they set upon the trial by jury." "Or," he added, "if there is any difference between
them, it consists in this; the former regard it as a valuable safeguard to liberty, the latter
represent it as the very palladium of free government." Hamilton himself saw the jury as
"a barrier to the tyranny of popular magistrates in a popular government," preventing
"arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon
arbitrary convictions," which are the "great engines of judicial despotism." That is,
Hamilton recognized that the jury in a criminal case is a safeguard against "judicial
despotism," preventing both unjust convictions and unjust punishments.
SK/A04.05) W. David Herbert, FIRST THINGS: A MONTHLY JOURNAL OF
RELIGION AND PUBLIC LIFE, June-July 2013, p. 15, GALE CENGAGE
LEARNING, Expanded Academic ASAP. If a jury believes a law to be unjust, it does not
have to apply it. Thomas Jefferson and Alexander Hamilton, who tended to be political
opposites on most issues, both recognized this power of the jury. Yet most citizens are
not aware that they have this power when they are on a jury. This is because virtually all
criminal trial court judges in both the state and federal jurisdictions refuse to inform
juries of this power or to allow defense attorneys to inform them. One excellent, scholarly
text that is very informative on this issue is "Jury Nullification: The Evolution of a
Doctrine" by Texas attorney Clay S. Conrad. It is a Cato Institute publication. I believe
that if every citizen knew of this power handed down to us by our founders, our liberties
would be much more secure.
2. JURY NULLIFICATION IS A POWERFUL CHECK ON ABUSE OF POWER
SK/A04.06) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, pp. 1124-1125.
Like some of these more subtle examples, jury nullification serves as a check on the
abuse of government power. Broadly speaking, the Sixth Amendment right to a jury trial
serves as a fundamental check to prevent government abuse. In Duncan v. Louisiana, the
Supreme Court incorporated the Sixth Amendment right to a jury trial in criminal cases
into the Fourteenth Amendment, making the right applicable to the states. In its opinion,
the Court stated, "[a] right to jury trial is granted to criminal defendants in order to
prevent oppression by the Government."
SK/A04.07) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1125. These
statements by the Court reveal that one of the main purposes of a jury trial is to act as a
protection (or a check) against the government. However, without jury nullification, the
effectiveness of such a check is greatly diminished because the jury would be forced to
rigidly apply the law just as the judge would. "Nullification decisions check prosecutorial
discretion against the public values and social norms we recognize from judicial
interpretation of statutes and from the full description of the rule of law." Furthermore,
without the power to nullify, the jury simply becomes a tool - a rubber-stamp - for the
government to use however it wishes.
SK/A04.08) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1126. Through
exercise of its nullification power, a jury can provide a check on legislatures to protect
against unjust laws, a check on prosecutors that are unjustly applying the laws, and a
check on judges who may be interpreting the law with too much rigidity. Jury
nullification can also serve as a useful tool in balancing federalism, protecting states from
the federal government's encroachments into what have traditionally been the states'
determinations of criminal liability.
3. NULLIFICATION CAN CURTAIL OVERZEALOUS PROSECUTORS
SK/A04.09) Meghan J. Ryan [Asst. Professor of Law, SMU], ALABAMA LAW
REVIEW, 2014, LexisNexis Academic, p. 852. The powers of the criminal jury were the
ones our Framers were most adamant about safeguarding, because it is in this area that
there is a heightened need for protecting individual rights. The jury acts as a bulwark
between the government and the people to ensure that the government is not overbearing
and engaging in overzealous prosecution.
4. NULLIFICATION IS A PROTECTION AGAINST POLICE MISBEHAVIOR
SK/A04.10) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1106. In the
first category of jury nullification - jury nullification in response to unlawful government
behavior - the government correctly and justly applies the law to a criminal defendant's
behavior. However, in the course of a criminal investigation or prosecution, the
government commits an objectionable offense, and the jury punishes the government by
acquitting the defendant. Objectionable offenses could include, but are not limited to,
perjured testimony or unreasonable searches or seizures. In this case, the jury makes a
value judgment that the government's inappropriate behavior was more reprehensible
than the defendant's. Thus, this category of jury nullification acts like the exclusionary
rule by allowing a guilty criminal to escape punishment to discourage unacceptable
governmental acts.
SK/A05. JURY NULLIFICATION BEST ACHIEVES JUSTICE
1. JURIES ARE A COUNTERWEIGHT TO UNJUST LAWS
SK/A05.01) HARVARD LAW REVIEW, May 2014, LexisNexis Academic, pp.
2105-2106. Ultimately, nullification serves as a counterweight to a fraught system tilted
in favor of overpenalization - starting with three-strikes laws, the disproportionate
sentencing of crack-cocaine offenses compared to pharmacologically identical powdercocaine offenses, and the federal prosecution and heavy-handed punishment of child
pornography, and ending with a swollen, world-leading prison population of over 2.2
million.
SK/A05.02) Monroe H. Freedman [Professor of Law, Hofstra U.], HOFSTRA
LAW REVIEW, Summer 2014, LexisNexis Academic, pp. 1132-1133. As mentioned,
jury nullification is most important in cases in which the evidence is overwhelming
against the defendant. Also, nullification depends upon the possibility of getting the
jurors (or even just one juror) to sympathize sufficiently with the defendant and with the
defendant's reason for having committed the crime. Those cases include: conscientious
anti-war activities; assisted suicide of a loved one who is terminally ill and in great pain;
a spouse who has suffered years of brutality and kills the abuser; a defendant who is the
victim of police abuse or of prosecutorial overreaching; use of medical marijuana; and a
crime against an abortion provider.
SK/A05.03) Keith L. Alexander, THE WASHINGTON POST, October 30, 2013,
p. B1, LexisNexis Academic. The billboard is part of a growing national campaign to
encourage jurors who disagree with a law, or think a punishment is too harsh, to vote for
acquittal. Kirsten Tynan of the Montana-based Fully Informed Jury Association, whose
name and Web address is included on the billboard, said the nonprofit group generally
challenges crimes it calls "victimless," such as vandalism by graffiti or gun possession.
SK/A05.04) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, pp. 1129-1130.
Juries are particularly well suited to perform this function of balancing the written law
with practical concerns of justice and fairness. One reason they are well suited is that they
consist of a number of people who must arrive at a unanimous decision. Often, jurors
must thoroughly discuss the issues in a trial - thus taking appropriate care to correctly
decide the issues before them - before they can agree on a verdict. Additionally, juries
know less about the law than judges, but their knowledge of social norms and practices
help them weigh both sides.
SK/A05.05) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1129. Finally,
jury nullification balances government and individual interests by tempering the rigid
application of the law. Often the "letter of the law" interferes with the "spirit of the law."
This is because the law applies to human behavior and the human experience is
impossible to fully describe in a criminal law code. A scholar writing about jury
nullification articulated this idea and jury nullification's role: “Law and Justice are from
time to time inevitably in conflict. That is because law is a general rule ... while justice is
the fairness of this precise case under all its circumstances. And as a rule of law only
takes account of broadly typical conditions, and is aimed at average results, law and
justice every so often do not coincide... . Now this is where the jury comes in. The jury,
in the privacy of its retirement, adjusts the general rule of law to the justice of the
particular case.”
SK/A05.06) Paul Butler [Professor of Law, George Washington U.], THE NEW
YORK TIMES, December 21, 2011, p. A39, LexisNexis Academic. In October, the
Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries
in checking governmental power, seemed open to the notion that jurors “can ignore the
law” if the law “is producing a terrible result.” He added: “I'm a big fan of the jury.”
2. JURIES BRING A COMMON SENSE APPROACH TO THE LAW
SK/A05.07) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1128.
Countering, critics argue that jury nullification is a poor exercise of discretion because
juries are not trained in the law and because they do not have the experience that police
and prosecutor have in screening cases. However, juries are useful as an additional level
of discretionary review exactly because they are not trained in the law: they are looking
at the case from a common sense point of view. Such a common sense point of view is
necessary to properly balance the rule of law with the fair application of justice - or an
application of the law in accordance with the spirit of the law - because a purely legal
approach, such as that taken by lawyers and judges, can often result in harsh results.
SK/A05.08) Monroe H. Freedman [Professor of Law, Hofstra U.], HOFSTRA
LAW REVIEW, Summer 2014, LexisNexis Academic, pp. 1129-1130. Without
overruling Sparf or using the phrase "jury nullification," some later Supreme Court cases
recognized that the jury's purpose is to provide its "common-sense judgment," which can
be more sympathetic to the defendant than a "compliant, biased, or eccentric judge"
might be, and can also serve as an "inestimable safeguard against the corrupt or
overzealous prosecutor."
3. JURIES ARE MOST REPRESENTATIVE OF THE CITIZENRY
SK/A05.09) Meghan J. Ryan [Asst. Professor of Law, SMU], ALABAMA LAW
REVIEW, 2014, LexisNexis Academic, p. 852. Further, the jury injects a democratic
component into the criminal justice system to ensure that justice, rather than vengeance
or an invidious legislative agenda, is served. Also, because of its democratic nature, a
jury can reach better decisions than an ordinary individual decisionmaker would due to
the jury's opportunity to engage in the consensus-building process of deliberative
democracy.
SK/A05.10) Meghan J. Ryan [Asst. Professor of Law, SMU], ALABAMA LAW
REVIEW, 2014, LexisNexis Academic, p. 853. In contrast to juries, judges are
unrepresentative of the people they serve in numerous dimensions. Judges are
overwhelmingly Caucasian, male, highly-educated, politically active, and wealthy. As
such, judges are likely to have different values than ordinary Americans, and these values
drive the criminal constitutional moral decisions that are allegedly based on societal
standards.
SK/A05.11) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1128. One
reason juries may be better suited to screen cases is that juries do not need to appear that
they are "tough on crime to ensure [their] re-election." Another reason is that juries are "a
group of local citizens who must live in the community into which they either might set
criminals free or live with officials who violate rules. In light of that, the jury seems an
appropriately cautious body to trust with the power to make such [discretionary
decisions].”
4. STUDIES SHOW THAT JURORS ARE CONSCIENTIOUS & SEEK JUSTICE
SK/A05.12) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1130. Finally,
empirical evidence shows that jurors try to do the right thing; they "take their role
seriously, approach it conscientiously, and are capable of making complex moral
judgments."
SK/A05.13) Thomas Regnier [Adjunct Professor, The John Marshall Law
School], SANTA CLARA LAW REVIEW, 2011, LexisNexis Academic, p. 842. Most of
the empirical evidence that we have on how juries behave suggests that they are usually
conscientious and, often, very astute. Kalven and Zeisel's classic study of jury behavior
concluded that, for the most part, juries understand the case and follow the evidence.
SK/A05.14) Jessica L. West [Associate Professor of Law, U. of Vermont],
TEMPLE LAW REVIEW, Fall 2013, LexisNexis Academic, p. 146. Though direct jury
nullification may be less of an issue than some courts fear, jurors attempt to do justice
and to avoid unjust or intolerable verdicts. Studies indicate that, when significant
evidence is disputed and factual determinations require subjective weighing, jurors work
to conform the evidence to their perception of justice and reach a "verdict that [they] can
tolerate." Studies of jury outcomes confirm that the evaluation of evidence is impacted by
a juror's sense of justice.
SK/A06. MARIJUANA LAWS JUSTIFY NULLIFICATION
1. JURIES ARE USING NULLIFICATION IN MARIJUANA CASES
SK/A06.01) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1126. A
current example of this is jury nullification's ability to protect people from federal
convictions in states that have legalized the use of marijuana.
SK/A06.02) Jacob Sullum, REASON, January 2013, p. 12, GALE CENGAGE
LEARNING, Expanded Academic ASAP. A New Hampshire law that takes effect this
January allows a defense attorney to "inform the jury of its right to judge the facts and the
application of the law in relation to the facts." In September a Belknap County jury
illustrated the importance of the nullification power recognized by that provision when it
acquitted a marijuana grower of growing marijuana.
SK/A06.03) Jacob Sullum, REASON, January 2013, p. 12, GALE CENGAGE
LEARNING, Expanded Academic ASAP. To clarify the law, Judge James O'Neill read
New Hampshire's rarely heard model jury instruction regarding nullification: "Even if
you find that the State has proven each and every element of the offense charged beyond
a reasonable doubt, you may still find the defendant not guilty if you have a conscientious
feeling that a not guilty verdict would be a fair result in this case." The jury, which
deliberated for six hours, asked to hear that instruction again on two occasions before
unanimously declaring Darrell not guilty. Cathleen Converse, a 57-year-old accountant
who moved to New Hampshire in 2004 as part of the Free State Project, told the
Manchester Union Leader she and her fellow jurors objected to "the fact that the system
was coming down on a peaceful man, and it wasn't right."
SK/A06.04) Gilbert G. Garcia [Member, State Bar of Texas], LEGAL MONITOR
WORLDWIDE, February 20, 2014, pNA, LexisNexis Academic. Jurors have, in the past,
resorted to jury nullification as a means of democratic expression against laws that ran
counter to the popular will, such as the Alien and Sedition Acts, the Fugitive Slave Acts
and alcohol Prohibition. Today, "mandatory minimum" sentences for low-level drug
offenses like possession of marijuana (POM) are among the laws Americans consider
excessive and disproportionately punitive.
2. NULLIFICATION DEMONSTRATES PUBLIC’S REJECTION OF LAWS
SK/A06.05) Taylor E. Whitten [U. of Iowa College of Law], IOWA LAW
REVIEW, January 2014, LexisNexis Academic, pp. 934-935. Jury nullification is a way
for citizens to espouse their opposition to a particular crime. Whereas the reasons behind
a single jury acquittal are ambiguous, repetitive jury nullification clearly states to the
government, "we disagree." In the case of marijuana possession, there is some evidence
that the threat of nullification has led prosecutors to lobby for laws that take away the
jury trial.
SK/A06.06) Paul Butler [Professor of Law, George Washington U.], THE NEW
YORK TIMES, December 21, 2011, p. A39, LexisNexis Academic. In some
jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with
their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug
cases. That is precisely the kind of power grab that the Constitution's framers were so
concerned about.
SK/A06.07) Keith L. Alexander, THE WASHINGTON POST, October 30, 2013,
p. B1, LexisNexis Academic. James Babb, a Philadelphia-based graphics artist who
organized a fundraising campaign to put up the billboard, said he raised $3,000 in about a
week through Facebook and other social-media sites. He said he is concerned about laws
that he thinks are too restrictive. "People are going to jail for weed," Babb said. "Things
are getting so weird. There needs to be this final safeguard to protect us from a tyrannical
government."
3. IT IS A BELLWETHER FOR CHANGING MARIJUANA LAWS
SK/A06.08) Gilbert G. Garcia [Member, State Bar of Texas], LEGAL MONITOR
WORLDWIDE, February 20, 2014, pNA, LexisNexis Academic. Jury nullification when a jury disagrees with the law and acquits a defendant they believe to be guilty - has
a long history in the United States of serving as a bellwether for social change on
unpopular laws. There are numerous historical examples of juries nullifying laws that
would later change due to vast public opposition. More recently, legal professionals have
identified jury nullification verdicts in marijuana cases. This should not be surprising
given society's rapidly changing view of marijuana - support for legalization now polls at
58 percent nationally, and in Texas it polls equally well.
SK/A06.09) Gilbert G. Garcia [Member, State Bar of Texas], LEGAL MONITOR
WORLDWIDE, February 20, 2014, pNA, LexisNexis Academic. The power of jury
nullification, a staple of pre-Revolutionary American society, is emerging as a force to be
reckoned with in the fight to reverse Texas' costly and oppressive marijuana laws. "Jury
nullification" occurs when a jury returns a verdict of "not guilty" despite its belief that a
defendant is guilty. Essentially, jurors decide to nullify a law that they consider to be
wrong. As public support for legalizing marijuana blossoms, Texas jurors are judging not
only the defendants before them, but the law as well. A recent survey by Public Policy
Polling found that 58 percent of Texas voters support "changing Texas law to regulate
and tax marijuana similarly to alcohol," allowing licensed stores to sell marijuana to
anyone 21 and older. The survey also indicates that 61 percent of voters support making
it a civil, not criminal, offense to possess an ounce or less of marijuana for personal use,
punishable by a fine of up to $100, but without jail time. Clearly, Texas voters are joining
the nationwide wave of support for legalized marijuana.
SK/A06.010) Gilbert G. Garcia [Member, State Bar of Texas], LEGAL
MONITOR WORLDWIDE, February 20, 2014, pNA, LexisNexis Academic. Given our
current system of drug laws - which heap disproportionate punishment upon defendants
for POM [possession of marijuana] - the "monitoring function" of jury nullification
counteracts the enduring, holdout combatants in our failed war on marijuana. Public
opinion is shifting in favor of decriminalizing - and eventually legalizing - marijuana.
Defendants demanding a jury trial and jurors participating in the process are powerful
forces in opposition to hard-line prosecutors, out-of-touch legislators and antiquated laws,
which have robbed countless Texans of their liberty and freedom.
SK/A06.011) Paul Butler [Professor of Law, George Washington U.], THE NEW
YORK TIMES, December 21, 2011, p. A39, LexisNexis Academic. Nullification has
been credited with helping to end alcohol prohibition and laws that criminalized gay sex.
Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a
favorable plea bargain after so many potential jurors said they would nullify that the
judge didn't think he could find enough jurors to hear the case. (Prosecutors now say they
will remember the actions of those jurors when they consider whether to charge other
people with marijuana crimes.)
SK/A07. RACIAL DISCRIMINATION JUSTIFIES NULLIFICATION
1. BLACK JURORS SHOULD USE NULLIFICATION TO ACHIEVE JUSTICE
SK/A07.01) Adrien Leavitt [Seattle U. Law School], SEATTLE JOURNAL FOR
SOCIAL JUSTICE, Spring 2012, LexisNexis Academic, pp. 715-716. In his
groundbreaking article, "Racially Based Jury Nullification: Black Power in the Criminal
Justice System," Paul Butler, a professor at George Washington University Law School
and former federal prosecutor, called upon black jurors to subvert America's racist
criminal legal system through jury nullification. Specifically, Butler urged black jurors to
nullify in cases where black defendants are on trial for certain nonviolent offenses, often
thought of as "victimless" crimes. Butler asserted that the black community is best suited
to decide what conduct, when perpetrated by members of its community, should be
punished; thus, black jurors should resist finding black defendants guilty for these
nonviolent crimes under unjust laws formulated by a legal system controlled by white
lawmakers and law enforcers. Heeding Butler's call for black jury nullification, black
jurors can safely reduce the number of black people incarcerated, help alleviate the
suffering of the black community by reducing the number of its members who are sent to
prison, and stand up against fundamentally racist laws.
SK/A07.02) Paul Butler [Professor of Law, George Washington U.], THE NEW
YORK TIMES, December 21, 2011, p. A39, LexisNexis Academic. How one feels about
jury nullification ultimately depends on how much confidence one has in the jury system.
Based on my experience, I trust jurors a lot. I first became interested in nullification when
I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were
predominantly African-American, nullified regularly because they were concerned about
racially selective enforcement of the law.
SK/A07.03) Harvey Gee [Asst. Federal Public Defender, Western District of
Pennsylvania], RUTGERS RACE & THE LAW REVIEW, 2009, LexisNexis Academic,
p. 82. Butler explains the historical constitutional roots of jury nullification. Butler asserts
that Americans who are not satisfied with the high rate of incarceration and the constant
lock up of nonviolent offenders in this country can use nullification strategically. With
jury nullification, the jury is finding the law unfair. According to Butler, the jury is acting
legally.
SK/A07.04) Shari Collins-Chobanian [Arizona State U.], JOURNAL OF BLACK
STUDIES, March 2009, JSTOR, p. 508. Paul Butler argues that due to disparate impact
on African Americans in the criminal justice system, African American jurors ought to
exercise their right of nullification when there are African American defendants of
nonviolent crimes. That is, they should refuse to convict those defendants in part to
redress the racism and discrimination experienced by Blacks, and in part because Butler
argues that these defendants should be addressed in the African American community
instead.
SK/A07.05) Shari Collins-Chobanian [Arizona State U.], JOURNAL OF BLACK
STUDIES, March 2009, JSTOR, p. 508. I argue that Butler’s call is a principled tool to
use while also working to change disparate treatment and impact due to discrimination in
the criminal justice system, while also exploring the problematic issue of returning
offenders to the community.
2. THIS ONLY APPLIES TO NONVIOLENT LOW-LEVEL OFFENSES
SK/A07.06) Harvey Gee [Asst. Federal Public Defender, Western District of
Pennsylvania], RUTGERS RACE & THE LAW REVIEW, 2009, LexisNexis Academic,
p. 84. As a homage to Martin Luther King, Jr., who was forced to use extreme tactics
such as disobedience to break down walls of discrimination, Butler refers to people as
being "Martin Luther King jurors" who employ nullification strategically in cases where
a defendant possessed or sold a small amount of drugs or when a defendant is accused of
possessing drugs for their own use or selling small amounts to another consenting adult.
However, Butler argues that nullification does not apply when a defendant is accused of a
serious crime such as murder, rape, robbery, theft, or corruption; when the crime is
violent in nature or when a defendant is accused of selling drugs to minor.
SK/A07.07) Taylor E. Whitten [U. of Iowa College of Law], IOWA LAW
REVIEW, January 2014, LexisNexis Academic, p. 936. Paul Butler argues that in some
nonviolent crimes, such as drug possession, it is better for the African-American
community to use its power of jury nullification. He argues that the jury is an important
tool for internal destruction and rebuilding of the criminal justice system.
SK/A08. JIM CROW INJUSTICE WASN’T DUE TO NULLIFICATION
1. INJUSTICE PERVADED ENTIRE JIM CROW CRIMINAL SYSTEM
SK/A08.01) Julia Simon-Kerr [Associate Professor of Law, U. of Connecticut],
WILLIAM & MARY LAW REVIEW, 2015, LexisNexis Academic, p. 2199. As Darryl
Brown has observed in his work on the wider practice of jury nullification, all-white
juries were composed in violation of the law. Among other factors, this led him to
question whether southern white jury nullification belongs in the broader category of jury
nullification. Brown is also skeptical about whether southern nullification in the Jim
Crow era fits the jury nullification paradigm because local law enforcement officials and
"[j]udges violated the rule of law roughly as much as juries."
SK/A08.02) Julia Simon-Kerr [Associate Professor of Law, U. of Connecticut],
WILLIAM & MARY LAW REVIEW, 2015, LexisNexis Academic, pp. 2199-2200.
Unlike the general understanding of jury nullification as an instance in which individual
juries refuse to follow the law for case-specific reasons, white southern jury nullification
caused a "collapse of the rule of law" precisely because it occurred consistently over time
with the open participation of many legal actors. The case is complicated by the
pervasive race-based distortions in the legal system.
2. JURIES WERE FAIRER THAN REST OF CRIMINAL JUSTICE SYSTEM
SK/A08.03) Thomas Regnier [Adjunct Professor, The John Marshall Law
School], SANTA CLARA LAW REVIEW, 2011, LexisNexis Academic, p. 840. Unjust
race-based acquittals in the South represented a moral breakdown in the society that
infected the entire criminal justice system, not just juries. In fact, a closer look at the
cases shows that the jurors often behaved more honorably than police, prosecutors, and
judges. And it shows that when these state actors took their jobs seriously, the jurors did
also.
SK/A08.04) Thomas Regnier [Adjunct Professor, The John Marshall Law
School], SANTA CLARA LAW REVIEW, 2011, LexisNexis Academic, p. 838. But
what is widely accepted is not always the whole truth, as Clay Conrad has demonstrated
in his analysis of racism in jury verdicts. In many cases, the lack of conviction was the
fault of police, prosecutors, or judges who made less-than-half-hearted attempts to bring
the murderers to justice. Most high profile of all such racist murders was Byron de la
Beckwith's shooting of Mississippi NAACP Field Secretary Medgar Evers in 1963.
Beckwith was tried twice for the murder in 1964, but both all-white juries deadlocked.
Those juries were not, however, presented with an open-and-shut case: several witnesses,
including police officers, said they had seen Beckwith elsewhere on the night of the
crime; there were doubts about his ownership of the murder weapon; some witnesses
contradicted claims that his car was parked at a restaurant near the crime scene. The
district attorney, perhaps restrained by political ambition, mounted an apparently sincere
but unenthusiastic prosecution.
SK/A09. JURIES WILL NOT ABUSE POWER OF NULLIFICATION
1. NULLIFICATION POWER IS RARELY USED
SK/A09.01) Jane E. Duzinski [U. of Illinois College of Law], UNIVERSITY OF
ILLINOIS LAW REVIEW, 2013, LexisNexis Academic, p. 1633. Despite the historical
role of the American jury, studies have shown that jury nullification today is not that
common. Jurors tend to agree with judges on verdicts and are often unaware of their
power to nullify.
SK/A09.02) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1109.
Additionally, the frequency of the use of jury nullification is difficult to quantify because
it is hard to determine exactly why a jury delivers a not guilty verdict in every case.
However, scholars estimate that jury nullification happens in about 4% of cases.
2. JURIES DO NOT ABUSE THE POWER OF NULLIFICATION
SK/A09.03) Thomas Regnier [Adjunct Professor, The John Marshall Law
School], SANTA CLARA LAW REVIEW, 2011, LexisNexis Academic, p. 824. I do not
see any reason to assume that jurors will make rampantly abusive use of their power.
Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence,
and if that trust is without foundation we must re-examine a great deal more than just the
nullification doctrine.
3. NULLIFICATION WILL NOT CONVICT THE INNOCENT
SK/A09.04) HARVARD LAW REVIEW, May 2014, LexisNexis Academic, pp.
2107-2108. Critics misunderstand the limitations of nullification in arguing that giving
wider moral latitude to juries risks the conviction of innocents. Checks on that abuse of
power make it avoidable. Convictions are appealable, while acquittals are not. Rule 29 of
the Federal Rules of Criminal Procedure requires a trial judge to enter a judgment of
acquittal if evidence is insufficient to sustain conviction, but the same judge may not
second-guess a jury that acquits.
4. DEFINITION OF NULLIFICATION EXCLUDES CONVICTING INNOCENTS
SK/A09.05) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1105. In this
Comment, jury nullification does not include convicting a criminal defendant that has not
been proven guilty beyond a reasonable doubt. This definition allows this Comment to
advocate for jury nullification without asking for courts to allow juries to find defendants
guilty notwithstanding clear evidence of their innocence. The paper limits the definition
this way because, while there may be justifications for juries to nullify a defendant's guilt,
a jury's decision to convict notwithstanding the evidence inherently violates due process.
SK/A10. NULLIFICATION DOESN’T UNDERMINE RULE OF LAW
1. NULLIFICATION IS CONSISTENT WITH THE RULE OF LAW
SK/A10.01) Jenny E. Carroll [Associate Professor of Law, Seton Hall U.],
GEORGETOWN LAW JOURNAL, March 2012, LexisNexis Academic, p. 692. First,
would jury nullification undermine the rule of law? This fear appears overstated. Jury
nullification embodies ideas of functionalism and popular constitutionalism that are
consistent with the rule of law in a constitutional democracy.
SK/A10.02) Jenny E. Carroll [Associate Professor of Law, Seton Hall U.],
GEORGETOWN LAW JOURNAL, March 2014, LexisNexis Academic, p. 621. Despite
nullification's limitations, and contrary to popular notions, nullification is also consistent
with the rule of law because it creates a mechanism to lend predictability and knowability
to the law when formal constructs have failed to align themselves with the citizen's own
expectations.
2. JUROR DISCRETION IS NOT UNIQUE IN CRIMINAL JUSTICE SYSTEM
SK/A10.03) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1127. Like the
discretionary decisions of police officers and prosecutors, jury nullification is simply an
exercise of the jury's discretion regarding whether criminal punishment is appropriate in a
given case. Just as police and prosecutors take into consideration factors such as whether
the defendant's behavior was merely a technical violation or whether other circumstances
not formally recognized by the law justified or excused a defendant's actions, so serves
jury nullification to weed out inappropriate prosecutions where police and prosecutors
failed to do so.
SK/A10.04) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, pp. 1127-1128.
This view of jury nullification substantially rebuts criticism that nullification violates the
rule of law because this view reveals that discretionary decisions to not enforce a law are
not as large a problem as critics argue; such discretion is exercised every day in police
and prosecutors' offices, so it seems irrational to claim that such discretion exercised on
occasion by a jury would lead to anarchy and the end of the rule of law.
SK/A10.05) Roger Root [Advisory Board, Fully Informed Jury Association],
SETON HALL CIRCUIT REVIEW, Fall 2011, LexisNexis Academic, p. 11. By design,
any defendant is entitled to a chance to be acquitted by a jury even where evidence of
guilt is vast, insurmountable, and undisputed. As the Supreme Court wrote in Gregg v.
Georgia, any legal system that would rob jurors of their discretion would be "totally alien
to our notions of criminal justice."
3. CIVIL DISOBEDIENCE IS A PROPER RESPONSE TO UNJUST LAWS
SK/A10.06) Jenny E. Carroll [Associate Professor of Law, Seton Hall U.],
GEORGETOWN LAW JOURNAL, March 2014, LexisNexis Academic, p. 621.
Nullification is a challenge to the notion that law--constructed, enforced, and interpreted
by the formal bodies of government--requires wholesale deference. It is a rejection of the
premise that the citizen owes a duty of unquestioning obedience to the State and its
construction of law above other competing allegiances. It pushes against an external
construct of the law, in which the State defines the terms of the community it governs and
then demands obedience to those terms as the cost of continued membership in the
community. It recognizes instead that there are times when rejection of the law is a good
thing--when the lives of the citizens are diminished by wholesale deference and improved
by disobedience.
SK/N01. THERE IS NO RIGHT OF JURY NULLIFICATION
1. JURORS HAVE NO CONSTITUTIONAL RIGHT TO NULLIFY LAW
SK/N01.01) David Karman [Georgetown U. Law Center], GEORGETOWN
JOURNAL OF LEGAL ETHICS, Summer 2015, LexisNexis Academic, pp. 620-621.
This negative assessment of nullification leads to the conclusion that a jury's nullification
power “is not an intended component of our modern criminal justice system. Rather, it is
an unavoidable consequence of the various procedural safeguards imposed on the system
in order to protect values deemed more fundamental than the prevention of jury
nullification. Thus, the existence of the jury's nullification power in no way leads to the
conclusion that jurors possess a constitutional right to nullify the law.” The court has
generally established this position as well.
SK/N01.02) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 421. Justices Harlan (in Sparf) and
Holmes (in Horning) noted the jury has the duty to follow the law as instructed by the
judge, or, in other words, "no right to exercise" the power of nullification. Therefore, it is
clear the jury's power to nullify is not an actual right to nullify. Rather, the power of the
jury to nullify must mean the sheer ability to do so regardless of its legality
SK/N01.03) Raymond J. Brassard [Massachusetts Superior Court judge], THE
NEW YORK TIMES, December 29, 2011, p. A26, LexisNexis Academic. For more than
a century, the courts have ruled that juries have no right to decide what the law is, but
rather have a duty to apply the law to the facts based on the trial evidence.
2. SUPREME COURT IN SPARF CASE SETTLED THE ISSUE
SK/N01.04) David Karman [Georgetown U. Law Center], GEORGETOWN
JOURNAL OF LEGAL ETHICS, Summer 2015, LexisNexis Academic, p. 619. In the
1851 case of United States v. Morris, the Supreme Court found that "juries do not have
the right to decide questions of law." This decision was further bolstered by the 1895 case
of Sparf v. United States. Here, the Supreme Court found that the duty of a criminal jury
is to apply the law given by the court as accurately as it can to the facts determined. This
decision is considered to have established the principle that is still in practice today,
namely that, while the jury may have the power to nullify, it is not a right.
SK/N01.05) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, pp. 413-414. The issue in federal courts
was settled firmly against nullification in Sparf v. United States. As such, all of the
federal circuits have since fallen in line, agreeing, "while juries have the power to ignore
the law in their verdicts, courts have no obligation to tell them they may do so." As far as
state courts are concerned, they are, for the most part, in accord with the federal courts.
SK/N01.06) HARVARD LAW REVIEW, May 2014, LexisNexis Academic, p.
2097. The Court in Sparf v. United States hammered "the final nail into the coffin" for
the jury right to ascertain law. Finding the nullification power unassailable if only by dint
of institutional design, the Court nonetheless rejected the idea of it as a moral right
ascribed to the jury. Every federal circuit court of appeals to have ruled on the matter has
since denied the jury a right to a specific instruction notifying its members of their power
and has required that defense counsel be mum on the issue, for "what makes for health as
an occasional medicine would be disastrous as a daily diet."
SK/N01.07) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, pp. 425-426. The regime created under
Sparf, Horning, and lower cases like Dougherty may have struck the exact balance that
American judges are content with, and will be satisfied with for centuries to come.
Perhaps most interested parties actually desire for some nullification activity to occurs,
but only the limited amount of nullification that occur at the margins of a regime banning
the practice.
3. JUDGES FORBID NOTIFYING JURIES ABOUT NULLIFICATION
SK/N01.08) David Karman [Georgetown U. Law Center], GEORGETOWN
JOURNAL OF LEGAL ETHICS, Summer 2015, LexisNexis Academic, p. 620. While
established common law protects the jury from formal rebuke, this does not transform a
jury into a sanctioned legislative body. It merely allows for the jury to escape punishment
for this extralegal practice. Courts acknowledge this fact by taking active measures to
prevent nullification from occurring, and chief among these measures is that the jury is
not informed that it may engage in the practice. Instead, the judge will expressly forbid
the jury from disobeying any of the judge's instructions.
SK/N01.09) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 415. The following examples illustrate
the general rule regarding nullification's current status in American jurisprudence: jury
nullification is invalid. The first example is the bar against presenting nullification to a
jury. A second is the unwillingness of courts to consider the possibility of nullification in
granting post-conviction relief. Finally, the third is the willingness of courts to preclude
nullifying venire persons from becoming jurors.
SK/N01.10) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 415. The most salient demonstration of
the prohibition against nullification is the ban on instructing juries about their power to
nullify. Across the country, courts cannot instruct juries about their power to nullify.
Moreover, as noted earlier, defense counsel cannot advance nullification arguments.
Instead, standard jury instructions direct the jury to apply the law before them, which is a
tacit means of discouraging nullification.
4. INCLINATION TOWARD NULLIFICATION CAN DISQUALIFY A JUROR
SK/N01.11) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 416. As a final example of the general
rule, courts are forthright about the illegality of nullification when it comes to whether
jurors with a penchant for nullifying can be struck during voir dire: the answer is a clear
yes. "Courts have excluded potential nullifiers from the jury before or even during trial."
5. JURY NULLIFICATION IS AN ILLEGAL POWER
SK/N01.12) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 420. No matter what one's position is on
the virtues and vices of nullification, current case law is clear that, under Sparf, juries are
under a legal duty to follow the law, thereby rendering any act of nullification illegal.
Specifically, Sparf explains "the law makes it the duty of the jury to return a verdict
according to the evidence in the particular case before them." The "power" is recognized
because no one can control the jury; this is power in the raw, illegal sense.
SK/N02. NULLIFICATION HAS A MOTLEY HISTORY IN U.S.
1. FOUNDING FATHERS DID NOT ADVOCATE NULLIFICATION
SK/N02.01) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 413. Others argue, while "nullification"
was alive and well at the Founding in some form, the "nullification" of this era was
always tempered by the duty of juries to heed both the law and the judge; in other words,
while the jury may have interpreted the law on its own, it was still under a duty to do so
in a conscientious fashion.
SK/N02.02) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 413. See Lars Noah, Civil Jury
Nullification, 86 Iowa L. Rev. 1601, 1620 (2001) ("Although Eighteenth Century juries
were invited to find both law and facts and not feel bound by the interpretation of the law
offered by trial judges, they were admonished to apply the law as they understood it. The
independence of jurors in this regard did not countenance deciding disputes in total
disregard of the applicable common or other law.").
SK/N02.03) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 413. David A. Stern, Nullifying History:
Modern-Day Misuse of the Right to Decide the Law, 50 Case W. Res. L. Rev. 599, 609
(2000) ("The right to decide the law was neither equivalent to today's proposed right to
nullify, nor did it encompass the right to nullify. To the contrary, the right to decide the
law swept narrowly, placing a clear duty on juries to follow the law as they saw it, rather
than reject the law as pro-nullification scholars would have them do." (emphasis in
original)).
2. 14TH AMENDMENT CLEARLY RULED AGAINST NULLIFICATION
SK/N02.04) Jonathan Bressler [Law Clerk to Supreme Court Justice Stephen
Breyer], UNIVERSITY OF CHICAGO LAW REVIEW, Fall 2011, LexisNexis
Academic, p. 1136. First, this Article concludes that the Fourteenth Amendment's
Framers understood their Amendment to guarantee criminal jury trial in state courts-but
not to incorporate against the states the jury's historic right to nullify. In 1868, unlike in
1791, this right was not considered inherent in due process or jury trial. Second, this
Article shows that, unlike the Sixth Amendment's Framers, the Fourteenth Amendment's
Framers understood nullification to be inconsistent with new constitutional rights, and
they understood the Constitution to authorize Congress and the federal courts to disallow
nullification. Their Amendment's text and history provide an alternative justification of
Sparf, one that comports with originalism-of the Reconstruction-era variety-and
illustrates that original meaning may not be captured exclusively in a Founding-era
conception of rights.
SK/N02.05) Jonathan Bressler [Law Clerk to Supreme Court Justice Stephen
Breyer], UNIVERSITY OF CHICAGO LAW REVIEW, Fall 2011, LexisNexis
Academic, p. 1199. This Article has provided a descriptive and interpretive account of
Reconstruction-era jury nullification law. Two conclusions follow from the descriptive
account. First, the Reconstruction-era public and congressional understandings were
antithetical to the Founders' understanding. What had been considered a cherished right
was reduced to an unauthorized power, at least a generation before Sparf. The Fourteenth
Amendment's Framers and ratifiers understood juries to have the right to decide only
questions of fact.
SK/N02.06) Jonathan Bressler [Law Clerk to Supreme Court Justice Stephen
Breyer], UNIVERSITY OF CHICAGO LAW REVIEW, Fall 2011, LexisNexis
Academic, pp. 1199-1200. Reconstruction Congresses pursued legislation that would
purge from federal juries any prospective juror who believed that certain statutes were
unconstitutional. This legislation was consistent with the text, history, and purposes of
the Fourteenth Amendment, which transformed the Constitution by elevating the federal
judiciary over local juries as rights protectors, and nationalism over localism. The
Fourteenth Amendment may thus have constitutionalized the nineteenth-century judicial
precedent against nullification. This alternative account suggests that, at a minimum,
Founding-era history should not monopolize the original meaning of the post-Fourteenth
Amendment Constitution or the Supreme Court's criminal procedure jurisprudence.
3. 14TH AMENDMENT IS JUST AS VALID AS THE 6TH AMENDMENT
SK/N02.07) Jonathan Bressler [Law Clerk to Supreme Court Justice Stephen
Breyer], UNIVERSITY OF CHICAGO LAW REVIEW, Fall 2011, LexisNexis
Academic, p. 1200. Some Founding-era originalists posit that jury nullification is an
inherent constitutional right. Reconstruction-era originalism, however, suggests that
nullification is an illegitimate practice that interferes with other constitutional rights. In
selecting which era to use and in determining to what extent new Fourteenth Amendment
rights may revise and even abrogate earlier Sixth Amendment penumbral rights,
originalists must choose. The current Supreme Court has preferred the Founding-era
Sixth Amendment rights, but this Article has argued that prioritizing the Fourteenth
Amendment rights is a plausible choice, too.
SK/N02.08) Jonathan Bressler [Law Clerk to Supreme Court Justice Stephen
Breyer], UNIVERSITY OF CHICAGO LAW REVIEW, Fall 2011, LexisNexis
Academic, p. 1199. In addition to these descriptive conclusions, two interpretive
conclusions follow. The first is that there is an originalist argument for Sparf's holding,
grounded in Fourteenth Amendment text and history. With respect to state courts, the
Reconstruction Congresses, in accordance with the public understanding, did not
understand the Fourteenth Amendment to protect directly the right to nullify or to
incorporate the right against the state courts. With respect to federal courts, the
Reconstruction Congresses considered themselves constitutionally authorized to disallow,
or to codify the antebellum judiciary's disallowance of, a Founding-era right to nullify.
SK/N03. NULLIFICATION DOES NOT UPHOLD DEMOCRACY
1. JURORS ARE NOT ACCOUNTABLE TO THE ELECTORATE
SK/N03.01) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, pp. 1122-1123.
Furthermore, critics of jury nullification disagree that nullification enhances democracy
in any way. They argue that "the lack of any juror accountability principle is what makes
jury nullification so hard to justify on democratic terms." Furthermore, they assert that
"the argument [of] jury democracy falters because juries can neither represent nor
embody the community or its will. Not only do juries fail to reflect an adequate
demographic sample of the community, but their voting rules make them minoritarian
rather than majoritarian bodies." Critics further argue that the personal biases and
opinions of twelve people in a jury fail to serve as a democratic representation of the
community's opinion.
SK/N03.02) Adam D. Chandler [Yale Law School], THE NEW YORK TIMES,
December 29, 2011, p. A26, LexisNexis Academic. Democratically accountable bodies
write our criminal laws. Twelve unelected and anonymous people should not be able to
flout them behind closed doors.
2. NULLIFICATION SUBVERTS THE DEMOCRATIC PROCESS
SK/N03.03) David Karman [Georgetown U. Law Center], GEORGETOWN
JOURNAL OF LEGAL ETHICS, Summer 2015, LexisNexis Academic, pp. 619-620.
While jury nullification is a recognized practice, it is undoubtedly extralegal. By
definition, jury nullification occurs when a jury ignores established law and substitutes its
own personal opinion on what the law should be and how it should be applied. It allows
for a randomly-selected, miniscule sampling of the population to overthrow the entire
democratic process at the foundation of our government.
SK/N03.04) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, pp. 422-423. In a retort to the democracyenhancing virtue of nullification, nullification opponents claim that nullification
undermines the popular will expressed through laws.
SK/N03.05) Robert P. George, FIRST THINGS: A MONTHLY JOURNAL OF
RELIGION AND PUBLIC LIFE, June-July 2013, p. 15, GALE CENGAGE
LEARNING, Expanded Academic ASAP. I must, however, confess that I myself am of
two minds about jury nullification. The power can, to be sure, be used to prevent
injustices in certain cases. At the same time, it can be abused to displace legitimate
democratic decision making, and it carries with it the risk of the uneven application of
criminal laws.
3. JURIES DO NOT REFLECT NATIONAL VALUES
SK/N03.06) Jenny E. Carroll [Associate Professor of Law, Seton Hall U.],
GEORGETOWN LAW JOURNAL, March 2014, LexisNexis Academic, p. 632. First,
given that juries are not drawn from a national, or even a state pool, but a local one, jury
nullification may well reflect local values, rather than larger communal ones. Studies of
jury nullification in the South, particularly in the period following Reconstruction, reveal
the power of nullification to enforce local values, even those that were distasteful to a
larger state and national audience.
4. JURORS ARE UNQUALIFIED TO RULE ON MATTERS OF LAW
SK/N03.07) David Karman [Georgetown U. Law Center], GEORGETOWN
JOURNAL OF LEGAL ETHICS, Summer 2015, LexisNexis Academic, p. 620. Even if
it is conceded that a jury may be the most qualified body to determine issues of fact,
when it comes to matters of law, they are woefully unqualified. Unlike juries, an elected
legislative body remains accountable to its constituents, and its view is therefore much
more likely to represent the opinion of the majority. In comparison to juries, legislators
have more time to consider the ramifications of laws, more experience in creating policy,
and more data upon which to base their decisions. Even from a rudimentary statistical
standpoint, legislators are more likely to represent the opinion of the majority than a jury;
there are more legislators than there are jurors.
5. LAWS SHOULD BE CHANGED BY ELECTED REPRESENTATIVES
SK/N03.08) Raymond J. Brassard [Massachusetts Superior Court judge], THE
NEW YORK TIMES, December 29, 2011, p. A26, LexisNexis Academic. In a 1983
decision, for example, the District of Columbia Circuit Court of Appeals ruled: “A jury
has no more 'right' to find a 'guilty' defendant 'not guilty' than it has to find a 'not guilty'
defendant 'guilty.' ...Such verdicts are lawless, a denial of due process and constitute an
exercise of erroneously seized power.” If laws are unfair, our democratic process
provides that legislatures will change those laws. Jurors are not elected and not
accountable to the people.
SK/N03.09) Anna Offit, THE NEW YORK TIMES, December 29, 2011, p. A26,
LexisNexis Academic. As a former New York juror, I share Paul Butler's concern that
drug laws are applied unjustly. But there are better correctives than leaving our freedom
to the whims of “ordinary citizens,” like changing the laws and punishing abuses of
prosecutorial discretion.
SK/N04. RACIAL DISCRIMINATION DOESN’T JUSTIFY NULLIFICATION
1. BLACK JURORS SHOULD NOT ACQUIT GUILTY DEFENDANTS
SK/N04.01) Harvey Gee [Asst. Federal Public Defender, Western District of
Pennsylvania], RUTGERS RACE & THE LAW REVIEW, 2009, LexisNexis Academic,
p. 83. Not everyone agrees with Butler's enthusiastic call for jury nullification. For
example, Professor David Cole in his recent review of Butler's book finds problems with
jury nullification. Cole says that "acts of nullification are unlikely to have a galvanizing
effect." Further, he suggests that it would require potential jurors to conceal their intents
from judges during jury selection.
SK/N04.02) Harvey Gee [Asst. Federal Public Defender, Western District of
Pennsylvania], RUTGERS RACE & THE LAW REVIEW, 2009, LexisNexis Academic,
pp. 83-84. Cole remarks ”Butler's advocacy of jury nullification is ... a symbolic act of
resistance rather than a concrete solution to the problems of race and class inequality ... it
seems failed, and unlikely to attract the kind of support that would be necessary to build
meaningful consensus for real reform.”
SK/N04.03) James Forman Jr. [Professor, Georgetown U. Law Center],
MICHIGAN LAW REVIEW, April 2010, LexisNexis Academic, pp. 1008-1009. When
Randall Kennedy took Butler to task for advocating jury nullification, Kennedy argued
that locking up drug sellers would incapacitate them and therefore protect the
community. This incapacitation benefit is what Kennedy had in mind when he argued
(and some courts agreed) that prison is "a good for those whose lives are bettered by the
confinement of criminals who might otherwise prey upon them."
2. O.J. SIMPSON CASE SHOWS FOLLY OF NULLIFICATION
SK/N04.04) Tony Norman, PITTSBURGH POST-GAZETTE, June 13, 2014, p.
A2, LexisNexis Academic. When the jury returned a not guilty verdict on all counts [in
the O.J. Simpson case], I was stunned. Extraneous issues like a racist criminal justice
system aside, I believed "guilty" to be the only sensible verdict a jury could bring back
given the preponderance of circumstantial and forensic evidence against Simpson was
guilty. That was not a commonly expressed sentiment among blacks at the time, even
when they agreed with me. It was a blatant act of jury nullification on par with what
white juries routinely did in the South for decades when they exonerated white
defendants who murdered blacks.
SK/N04.05) Tony Norman, PITTSBURGH POST-GAZETTE, June 13, 2014, p.
A2, LexisNexis Academic. This week, a CNN/ORC poll found that 20 years after the
white Bronco chase inaugurated the era of news as reality television, a majority of
African-Americans is finally able to assert that O.J. Simpson murdered Nicole Brown
Simpson and Ronald Goldman. Perhaps a majority white jury's exoneration of George
Zimmerman for the murder of Trayvon Martin convinced enough folks that maybe, just
maybe, a jury box shouldn't become the last refuge for those nursing racial insecurities. It
should be a place of clear-eyed, unsentimental justice.
SK/N05. NULLIFICATION HAS PRODUCED RACIAL INJUSTICE
1. JURIES HAVE ACQUITTED WHITES GUILTY OF RACIAL VIOLENCE
SK/N05.01) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1103. One
particular aspect of trial by jury that has come under attack is the jury's power to nullify a
case. Prosecutors, specifically, tend to dislike the idea of jury nullification; they expect a
conviction when they fully prove their case. Cases where racist juries acquitted guilty
white defendants of violent crimes against blacks in the South give weight to prosecutors'
concerns.
SK/N05.02) Editorial, DENVER POST, August 19, 2015, p. 21A, LexisNexis
Academic. Jury nullification had a darker strain, too, as Southern juries would sometimes
refuse to convict white defendants guilty of racial violence.
SK/N05.03) Paul Butler [Professor of Law, George Washington U.], THE NEW
YORK TIMES, December 21, 2011, p. A39, LexisNexis Academic. There have been
unfortunate instances of nullification. Racist juries in the South, for example, refused to
convict people who committed violent acts against civil-rights activists, and nullification
has been used in cases involving the use of excessive force by the police.
SK/N05.04) Monroe H. Freedman [Professor of Law, Hofstra U.], HOFSTRA
LAW REVIEW, Summer 2014, LexisNexis Academic, p. 1133. The most egregious
examples of nullification have been when southern juries regularly acquitted plainly
guilty perpetrators of lynchings of African-Americans.
SK/N05.05) Julia Simon-Kerr [Associate Professor of Law, U. of Connecticut],
WILLIAM & MARY LAW REVIEW, 2015, LexisNexis Academic, p. 2195. In the
words of Gunnar Myrdal, "It is notorious that practically never have white lynching mobs
been brought to court in the South, even when the killers are known to all in the
community and are mentioned by name in the local press."
SK/N05.06) Tania Telow [Professor of Law, Tulane U.], WILLIAM & MARY
BILL OF RIGHTS JOURNAL, October 2009, LexisNexis Academic, p. 84. In the mid20th century, when international publicity about the murder of civil rights activists
pressured prosecutors to bring the killers to trial, these trials routinely resulted in racebased jury nullifications like that in the Emmett Till case. All-white juries failed to
convict Byron de la Beckwith for the murder of NAACP official Medgar Evers, acquitted
most of the defendants accused of killing James Chaney, Andrew Goodman, and Michael
Schwerner during the Freedom Summer of 1964, and acquitted the killers of Viola
Liuzzo, James Reeb, and Jonathan Daniels in the 1965 Selma, Alabama protests.
Discriminatory acquittal represented the final bulwark of segregation. Even more than the
silent inaction of police and prosecutors, such jury verdicts made dramatic statements
about the permissibility of racially motivated violence.
SK/N05.07) Tania Telow [Professor of Law, Tulane U.], WILLIAM & MARY
BILL OF RIGHTS JOURNAL, October 2009, LexisNexis Academic, pp. 84-85. In
recent decades, prosecutors have retried some of those murderers of civil rights leaders
and juries have promptly convicted them, but while the outright jury nullification in racebased crimes has diminished, it has not ended. Archetypal cases continue to make clear
that the problem remains. For example, there was little public doubt that the
predominantly white jury that acquitted the police officers charged with beating Rodney
King did so in furtherance of their racial discrimination against King, because a videotape
of the beating provided such strong evidence of the defendants' guilt. The perception of a
discriminatory acquittal in that case, and other police brutality acquittals involving
minority victims, spawned riots in Miami in 1980, Los Angeles in 1992, and Cincinnati
in 2001.
SK/N05.08) Julia Simon-Kerr [Associate Professor of Law, U. of Connecticut],
WILLIAM & MARY LAW REVIEW, 2015, LexisNexis Academic, pp. 2196-2197.
Indeed, Ku Klux Klan members freely "acknowledged their willingness to disobey the
law as jurors in defense of one another." Senators heard testimony that Klan members
swore oaths "to commit perjury as jurors, and to acquit at all hazards one of their number
who may be upon trial." Thus, this group of white southern nullifiers was acting not out
of confusion about the letter of the law, but because it "fe[lt] and believe[d], morally,
socially, politically, or religiously, that it [was] not murder for a white man to take the
life of a negro with malice aforethought."
2. NULLIFICATION CANNOT BE RELIED ON FOR RACIAL JUSTICE
SK/N05.09) David Karman [Georgetown U. Law Center], GEORGETOWN
JOURNAL OF LEGAL ETHICS, Summer 2015, LexisNexis Academic, p. 621. Some
have argued that, despite the representational discrepancies between the legislature and a
jury, nullification is still more likely to lead a favorable outcome for Black, non-violent
offenders. While the components of such an argument may be understandable, it is
difficult to conclude that the institution of jury nullification is inherently a tool for
general racial justice. Historically, juries have often used nullification to express racial
bias, most notably by acquitting Whites who had committed crimes "target[ing] [B]lacks
in the pre-civil-rights-era South." At least in this one regard, lauding the potential for jury
nullification to serve a greater good for racial justice ignores the notion that jury
nullification is equally capable of serving the exact opposite goal.
SK/N05.10) Stacey P. Eilbaum [Cornell U. Law School], CORNELL LAW
REVIEW, March 2013, LexisNexis Academic, p. 715. And in the fourth category, the
jury acquits because it holds a bias for the defense or against the prosecution. Acquittals
of white civil-rights violators by all-white juries are emblematic of this last category of
jury nullification. For Brown, this category is the only one that is inconsistent with "the
rule of law" because the jury's acquittal is based on prejudice rather than a conscientious
objection to the law or the behavior of the prosecutor or judge.
SK/N06. NULLIFICATION CANNOT ASSURE JUSTICE
1. JUROR SELECTION CAN BE DISCRIMINATORY
SK/N06.01) Anna Offit, THE NEW YORK TIMES, December 29, 2011, p. A26,
LexisNexis Academic. Mr. Butler takes a common-law view of the jury as conscience
that doesn't comport with the realities of racism in many parts of the country. A recent
lawsuit filed on behalf of excluded jurors in Alabama raises a troubling issue: What if
jury selection itself is discriminatory?
2. JUROR ATTITUDES CAN BE DISCRIMINATORY
SK/N06.02) Mitchell L. Eisen [Professor of Psychology, California State U., Los
Angeles] et al., CRIMINAL LAW BRIEF, Fall 2014, LexisNexis Academic, p. 41. This
article focuses on a series of experiments that demonstrate how gang evidence can have a
clear prejudicial effect on juror decision-making. Moreover, the data from these studies
shows that when gang evidence is introduced, jurors will often ignore reasonable doubt
and convict a defendant who has been depicted as a bad actor by virtue of his association
with a gang. Eisen et al. refer to this effect as "reverse [jury] nullification." Perhaps most
concerning is that deliberations analyses shows that when gang evidence was introduced,
verdicts were often based on the defendant's apparent criminal history, despite the fact
that no evidence of criminal history had been revealed at trial.
SK/N06.03) Mitchell Eisen [Dept. of Psychology, California State U., Los
Angeles] et al., UCLA LAW REVIEW DISCOURSE, 2014, LexisNexis Academic, p.
15. Horowitz noted that in nullification cases, jurors spend time discussing the
defendant's characteristics and often acquit those defendants whom they find morally
acceptable. In this study, an examination of the deliberations among those jurors who
voted guilty in the gang condition consistently revealed that discussions of the
defendant's gang membership was central to the ultimate verdict. In this instance, when
discussions turn to the moral acceptability of the violent gang member, it appears likely
that jury verdicts were influenced in the reverse direction.
3. NULLIFICATION CAN PRODUCE UNJUST VERDICTS
SK/N06.04) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 423. Nullification may also violate the
defendant's rights, and, from at least one point of view, results in unjust verdicts.
SK/N06.05) Thomas Regnier [Adjunct Professor, The John Marshall Law
School], SANTA CLARA LAW REVIEW, 2011, LexisNexis Academic, pp. 837-838.
Juries may use their discretion to acquit under a just law for contemptible reasons. It is
widely accepted that "classic examples of bad faith jury nullification occurred throughout
the South during the civil rights movement in the sixties where all-white juries acquitted
white defendants of crimes committed against black and white civil rights workers."
SK/N06.06) Raymond J. Brassard [Massachusetts Superior Court judge], THE
NEW YORK TIMES, December 29, 2011, p. A26, LexisNexis Academic. How are we to
distinguish those juries that decline to follow the law to achieve a good outcome from
those that do so for reasons related to gender, religion, race, sexual preference or politics?
Jury nullification raises important questions about whether we are better protected from
unfair results by laws that are uniformly applied and then lawfully changed, or by
decisions of juries that may well vary from one jury to another.
SK/N06.07) Tania Telow [Professor of Law, Tulane U.], WILLIAM & MARY
BILL OF RIGHTS JOURNAL, October 2009, LexisNexis Academic, p. 75.
Discriminatory acquittals violate the Constitution. Jurors may not constitutionally
discriminate against victims of crimes any more than they may discriminate against
defendants. Jurors are bound by the Equal Protection Clause because their verdicts
constitute state action, a point that has received surprisingly little scholarly analysis.
Finally, defendants have no countervailing right to jury nullification based on race or
gender discrimination against victims.
SK/N07. NULLIFICATION CAN CONVICT THE INNOCENT
1. JURY NULLIFICATION CAN PRODUCE WRONGFUL CONVICTIONS
SK/N07.01) Mitchell L. Eisen [Professor of Psychology, California State U., Los
Angeles] et al., CRIMINAL LAW BRIEF, Fall 2014, LexisNexis Academic, p. 49.
Although most research on jury nullification has dealt with acquitting legally guilty but
perhaps morally innocent defendants, when jurors follow their conscience and personal
sense of justice, it is also possible for jury nullification to occur in the reverse direction.
In such instances, jurors would understand that reasonable doubt exists, but knowingly
ignore this and nevertheless convict a defendant that they believe to be potentially
innocent of the charged offense, but morally corrupt, dangerous to society, or otherwise
deserving of punishment.
SK/N07.02) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1123. Finally,
jury nullification critics argue that nullification creates too much uncertainty for criminal
defendants. Assuming juries have the right to nullify, a defendant will go into trial not
knowing whether the whims of the jury will hold him accountable for a crime he
committed or not. Additionally, critics worry that increased jury nullifications resulting in
acquittals will also result in increased nullifications resulting in wrongful convictions.
2. WRONGFUL CONVICTIONS HAVE OCCURRED
SK/N07.03) Adam D. Chandler [Yale Law School], THE NEW YORK TIMES,
December 29, 2011, p. A26, LexisNexis Academic. Jury nullification might sound
appealing when it's used in a defendant's favor to set aside petty laws. But jury
nullification doesn't just let off otherwise guilty people; it also convicts the innocent.
Would anyone congratulate a jury for ignoring the law because of its animus toward the
defendant rather than its sympathy?
SK/N07.04) Julia Simon-Kerr [Associate Professor of Law, U. of Connecticut],
WILLIAM & MARY LAW REVIEW, 2015, LexisNexis Academic, p. 2195. The story
of jury nullification beginning in the post-Reconstruction South is familiar. White juries
routinely convicted black defendants accused of crimes against whites or exonerated
white defendants accused of crimes against blacks.
SK/N08. NULLIFICATION UNDERMINES THE RULE OF LAW
1. NULLIFICATION UNDERMINES THE RULE OF LAW
SK/N08.01) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1122. The
most common argument against jury nullification is that it undermines the rule of law.
When considering jury nullification, critics worry that if courts allow jurors to "deliberate
whether they happened to agree with the law, then there effectively would be no law at
all, only an anarchy of conscience, an unpredictable series of ad hoc judgments by
isolated groups of twelve." Therefore, critics argue, jury nullification as a part of the law
must be rejected to preserve "a government of laws and not of men."
SK/N08.02) Aaron McKnight [Brigham Young U. Law School], BRIGHAM
YOUNG UNIVERSITY LAW REVIEW, 2013, LexisNexis Academic, p. 1105.
Meanwhile, critics refer to jury nullification as "the intentional disregard of the law as
stated by the presiding judge" or "when a jury ignores the law as given by the court and
chooses instead to play by its own rules."
SK/N08.03) David Alan Sklansky [Professor of Law, U. of California, Berkeley],
STANFORD LAW REVIEW, March 2013, LexisNexis Academic, p. 442. What matters
for present purposes is this: if juries disregard their legal instructions, the effect is to
substitute the jury's normative standards for the law on the books. It does not threaten or
diminish trial by jury; on the contrary, it expands the jury's role. What it threatens and
diminishes is the effectiveness of statutes and case law to control the outcomes of trials.
That, in turn, diminishes the roles of legislatures and of judges. It poses obvious
challenges, as well, to the consistency and predictability of the law.
2. NULLIFICATION WEAKENS CRIMINAL DETERRENCE
SK/N08.04) Keith L. Alexander, THE WASHINGTON POST, October 30, 2013,
p. B1, LexisNexis Academic. "Jurors in the District of Columbia play an important role
in holding accountable the criminals who threaten and harm the people who live, work
and visit our city," U.S. Attorney Ronald C. Machen Jr. said in a statement. But he added,
"Jurors who ignore the law or refuse to follow the judge's instructions embolden
criminals who believe that they can get away with breaking the law and do harm to the
community without any repercussion."
3. NULLIFICATION CAN INCREASE GUN VIOLENCE
SK/N08.05) Patrik Jonsson, THE CHRISTIAN SCIENCE MONITOR, November
6, 2014, pNA, LexisNexis Academic. Some gun-rights groups have urged jury
nullification as a method to protect gun owners who get into trouble for failing to register
their arms. What gun-rights activists say is that there are potentially tens of thousands of
gun owners who will refuse to register.
SK/N09. WRONGFUL ACQUITTALS DESTROY CONFIDENCE IN LAW
1. UNJUST ACQUITTALS WEAKEN CONFIDENCE IN THE LAW
SK/N09.01) Nicholas A. Battaglia [Albany Law School], ALBANY LAW
REVIEW, 2011-2012, LexisNexis Academic, p. 1610. The same potent stigma that
attaches to an exoneree who was wrongfully convicted is attached to the entire justice
system when the "trial by media" finds a defendant wrongfully exonerated. It undermines
public perception of the entire legal system down to the very actors, such as jurors.
SK/N09.02) Nicholas A. Battaglia [Albany Law School], ALBANY LAW
REVIEW, 2011-2012, LexisNexis Academic, p. 1580. But sometimes when a guilty
person - or one who the public perceives to be guilty - goes free, the public admonishes
our criminal justice system for it.
SK/N09.03) Nicholas A. Battaglia [Albany Law School], ALBANY LAW
REVIEW, 2011-2012, LexisNexis Academic, p. 1592. But when the criminal justice
system acts incorrectly, the media and, subsequently the public, will react with disdain
for the mistake. This is justified if that "incorrect act" resulted in a wrongful conviction of
an innocent individual. However, when that "incorrect act" is what the public perceives as
a "wrongful exoneration," the public will act with great disdain even though, according
the legal scholars such as Voltaire and Blackstone, that reaction is completely unjustified.
SK/N09.04) Nicholas A. Battaglia [Albany Law School], ALBANY LAW
REVIEW, 2011-2012, LexisNexis Academic, p. 1597. The stigma of a wrongful
exoneration is imputed not only on that individual, but more broadly on the entire
American criminal justice system. It undermines the reliability of the system's delicate
framework, which is particularly vulnerable when a case is magnified under the media's
combing lens.
2. CASEY ANTHONY CASE ILLUSTRATES PUBLIC OUTRAGE
SK/N09.05) Nicholas A. Battaglia [Albany Law School], ALBANY LAW
REVIEW, 2011-2012, LexisNexis Academic, p. 1598. The stigma generated from a
wrongful exoneration is that the criminal justice system is not working to protect the
public, and that the system is too soft on crime. A wrongful exoneration can lead the
public to believe that there are procedural loopholes and extraordinarily high
prosecutorial burdens of proof, which allow criminals to escape justice. A pure example
of this is the Casey Anthony case.
SK/N09.06) Nicholas A. Battaglia [Albany Law School], ALBANY LAW
REVIEW, 2011-2012, LexisNexis Academic, pp. 1590-1591. Immediately after being
declared not guilty for killing Caylee, the majority of five-hundred people outside of the
courtroom began chanting "justice for Caylee" and "baby killer!" Outrage also erupted
online through social media and on television by reporters and analysts.
SK/N09.07) Bill Kalmar, USA TODAY, July 11, 2011, p. 6A, LexisNexis
Academic. With the whole nation watching, an Orlando jury mystified and shocked the
courtroom and all the legal pundits by returning a not guilty verdict in all murder charges
against Casey Anthony ("How the case crumbled," Cover story, News, Wednesday).
Despite evidence to the contrary, the death of 2-year-old Caylee, Anthony's daughter, will
remain a mystery. The prosecution presented a strong case tying Anthony to the
disappearance and murder of her daughter, but when the verdicts came in, it was obvious
that the jury must have been watching a different trial. I suspect that when the jurors start
their obligatory tour of the various television talk shows, we will learn that many of them
lack astuteness and common sense. They must have relied on the myriad legal programs
on television where jury nullification is almost the norm. It is a sad commentary on our
legal system when a child's death is left unsolved and no one is held accountable.
SK/N10. NULLIFICATION RISKS CHAOS AND ANARCHY
1. NULLIFICATION IS A DEFECT IN U.S.CRIMINAL JUSTICE SYSTEM
SK/N10.01) David Karman [Georgetown U. Law Center], GEORGETOWN
JOURNAL OF LEGAL ETHICS, Summer 2015, LexisNexis Academic, p. 623. Jury
nullification is an unfortunate defect in our judicial system, and a balancing test is needed
to determine whether an argument's potential to incite a jury to engage in nullification
outweighs its legal value to the client.
2. NULLIFICATION IS AN INVITATION TO ANARCHY
SK/N10.02) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 422. Regarding arguments raised
against nullification, the chief one may be that nullification invites anarchy. After all, the
United States aspires to be a government of laws, not men. Moreover, the judge is the
courtroom's expert on legal matters.
SK/N10.03) Kenneth Duvall [U. of Virginia School of Law], NORTH DAKOTA
LAW REVIEW, 2012, LexisNexis Academic, p. 414. Despite the official judicial
consensus against jury nullification, the practice continues, and courts proclaim their
inability to rein in runaway juries. The common justification for this incongruous
arrangement is that nullification serves a valid purpose, but to acknowledge it directly
would allow it to run amok.
SK/N10.04) Stacey P. Eilbaum [Cornell U. Law School], CORNELL LAW
REVIEW, March 2013, LexisNexis Academic, p. 725. When courts directly address the
issue of jury nullification, they often describe the jury as an antimajoritarian institution, a
rogue minority of individuals who have usurped the power of the legislature by nullifying
laws enacted by an elected, representative body. Denying a right to nullification
instructions in United States v. Moylan, the Fourth Circuit explained, "no legal system
could long survive if it gave every individual the option of disregarding with impunity
any law which by his personal standard was judged morally untenable." The court went
on to emphasize that "toleration of such conduct would not be democratic ... but
inevitably anarchic."
SK/N10.05) Stacey P. Eilbaum [Cornell U. Law School], CORNELL LAW
REVIEW, March 2013, LexisNexis Academic, pp. 725-726. Some of the most ardent
antimajoritarian language comes from the D.C. Circuit in United States v. Washington.
Affirming a district court's refusal to give a nullification instruction to the jury, the court
explained that such an instruction would "encourage the substitution of individual
standards for openly developed community rules." By "openly developed community
rules," the court was referring to laws passed by Congress. It emphasized this point when
it charged that jury nullification verdicts "are lawless, a denial of due process and
constitute an exercise of erroneously seized power."