Jury Nullification within the Rule of Law
81 Minnesota Law Review 1149 (1997).
50 Pages Posted: 17 Apr 1997 Last revised: 26 Feb 2020
Date Written: 1997
The criminal jury's power to nullify laws--to refuse to apply them--is generally disfavored. Most courts expressly limit jury discretion to finding facts, and few states allow juries to be told of their power of nullification. Even the minority who support nullification generally do not consider it a lawful act; it is usually justified as necessary to achieve justice in those rare situations in which the application of law does not. Supporters and detractors generally agree, then, that nullification violates the rule of law. The discussion of nullification, however, has occurred largely without reference to changing understandings of the rule of law itself. Descriptions of that ideal have been considerably revised in response to several developments: the critique of positivism and formalism; the insights of pragmatist and other theories that stress the interaction of law with its broader social and normative context; and recognition of the inevitable interpretive task involved in applying law. This article argues that most contemporary rule of law conceptions already allow the possibility of lawful jury nullification. Using examples of recent verdicts and historical verdict patterns, the article discusses four sorts of cases in which juries are likely to nullify laws and argues that three of them can occur within the rule of the law. The fourth scenario, in which nullification arises from clear bias such as racism, is most likely to occur when not only juries but other officials as well (judges, law enforcement) frequently do not uphold the rule of law, an observation that points to the dependence of the rule of law on broader social norms.
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