The Jury's Second Coming
University of Alabama Public Research Paper
52 Pages Posted: 10 Oct 2009 Last revised: 13 Aug 2016
Date Written: June 20, 2011
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.
Keywords: jury, nullification, Apprendi, formalism, popular constitutionalism
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