Jury Nullification: Features, Bugs, and the Possibility of Granular Law

Abstract

Jury nullification is the ability of juries to acquit criminal defendants even against the apparent weight of the law and the facts. This commentary asks whether jury nullification is a “bug” or a “feature” of the American criminal trial, a question separate, for example, from whether it is good or bad. The commentary concludes, tentatively, that jury nullification, on one understanding, might be a “feature.” It might reflect the jury’s authority, in exceptional cases, to particularize the applicable law by way of its existential engagement with a live defendant and the unique circumstances of a case. The possibility of jury nullification might therefore represent the legal system’s implicit recognition that law can have a granular as well as a global quality. A determination of granular law does not subject the rule of law to an abstract principle such as “justice” or the “democratic will.” It rather zooms in to expose the otherwise-unseen gaps or possibilities beyond the formality of the rule.

This power to uncover the granularity in the facts of a criminal trial is understandably and even necessarily controversial. The article looks for analogues in religious normative systems, examining the authority of Jewish legal decisors and the dispute over the meaning and legitimacy of Pope Francis’s Apostolic Exhortation Amoris Laetitia. Such analogues are only suggestive, however. At the end of the day, the embrace of an understanding of jury nullification along the lines outlined here would require both a deeper vision of the jury and a more adequate and more complex theory of law.

Keywords: Jury Nullification, juries, Jurisprudence, Existential Encounter, Granular Law, Jewish Legal Theory, Halakhah, Discernment, Amoris Laetitia, Justice and Mercy, Law and Mercy, Lysander Spooner, Martin Buber, I-Thou relationship