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The Jury's Second Coming


Jenny E. Carroll


University of Alabama - School of Law

June 20, 2011

100 Georgetown Law Journal 657 (2012)
Seton Hall Public Law Research Paper No. 1486188

Abstract:     
This article explores the controversial issue of jury nullification by reconceptualizing nullification through the lens of the Supreme Court’s recent decisions beginning with Apprendi v. New Jersey. Apprendi’s embrace of the jury’s historical powers — require a rejection of the formalized and static paradigm in favor of a more fluid vision of the law. Despite extensive scholarship surrounding Apprendi, an innovative (though admittedly counter-intuitive) reading of the case line has been overlooked. This reading draws on Apprendi’s embrace of a vision of the law constructed and completed through jury interpretation and verdict. Interpreted in this way, the Apprendi case line redefines the nature of the law itself and carries implications for the larger democracy.

Implicit in Apprendi’s reconception of the law is a radical reassessment of the long-running debate over jury nullification. Properly understood, jury nullification is not as an act of extra-legal rebellion, but rather the moment when citizen jurors lend meaning to the law through their interpretation. Without this opportunity for jurors to consider the value and applicability of the law to a particular defendant, the law is unable to account for shifting communal values, becoming overly rigid and, perhaps, meaningless to the community it seeks to regulate. Juror nullification, then, is an opportunity for the expansion of democratic principles beyond the formalized government. I conclude that the democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives, and when juries are allowed to assess both the legal and factual bases of guilt.

Number of Pages in PDF File: 66

Keywords: jury, nullification, Apprendi, formalism, popular constitutionalism

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Date posted: October 10, 2009 ; Last revised: July 3, 2013

Suggested Citation

Carroll, Jenny E., The Jury's Second Coming (June 20, 2011). 100 Georgetown Law Journal 657 (2012); Seton Hall Public Law Research Paper No. 1486188. Available at SSRN: http://ssrn.com/abstract=1486188

Contact Information

Jenny Elizabeth Carroll (Contact Author)
University of Alabama - School of Law ( email )
P.O. Box 870382
Tuscaloosa, AL 35487
United States
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