Abstract

http://ssrn.com/abstract=1008417
 


 



Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bushell's Case


Simon Stern


University of Toronto - Faculty of Law


Yale Law Journal, Vol. 111, No. 6, 2002

Abstract:     
Bushell's Case, 24 Eng. Rep. 1006 (C.P. 1670), established that jurors may not be fined or imprisoned for returning a verdict that conflicts with the judge's assessment of the evidence. Chief Justice John Vaughan's opinion did not defend jury nullification - in fact, the opinion asserted that jurors must follow the judge's directions concerning the law - but the opinion has long been recognized as a crucial resource for those who advocate nullification. Modern defenses of jury nullification that draw on Bushell's Case often point to Vaughan's argument that jurors must be permitted to form their own views because reasonable people may disagree about a witness's credibility or the reliability of the evidence. In the 1680s, however, when Bushell's Case was first being publicly debated, commentators focused primarily on Vaughan's argument that because jurors were chosen from the locality where the crime occurred, they should be presumed to have personal knowledge of the facts of the case. By the late seventeenth century, however, this premise was untenable. This article considers why the "personal knowledge" argument might have been so appealing, despite its implausibility, and examines the process by which that justification for jury nullification gave way to the "independent assessment" argument. In the course of the movement from the first justification to the second one, Bushell's Case began to viewed as supporting the jury's right to find both fact and law - a right that Vaughan had never defended.

Number of Pages in PDF File: 46

Keywords: Bushell's Case, juries, jury nullification, grand jury, legal history, vicinage, William Penn, criminal law, political prosecutions, libel, Whigs, print culture

JEL Classification: K14, K42

Accepted Paper Series





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Date posted: August 26, 2007  

Suggested Citation

Stern, Simon, Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bushell's Case. Yale Law Journal, Vol. 111, No. 6, 2002. Available at SSRN: http://ssrn.com/abstract=1008417

Contact Information

Simon Stern (Contact Author)
University of Toronto - Faculty of Law ( email )
78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/simon-stern

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