Reconceptualizing Jury Nullification: A Spectrum of Extralegal Considerations
Posted: 26 Jun 2018
Date Written: June 12, 2018
Jury nullification has become an unhelpful concept. Traditionally, it has referred to those instances in which the jury delivers a verdict that is deliberately in contradiction with a clear outcome due to either disagreement with the law or partiality toward the parties. Much debate is built on this traditional model; with some painting nullification as democratic, and others as anarchic. But this model is increasingly outmoded. Procedural devices have made it difficult for juries to exercise their power to nullify in the traditional sense. Indeed, some scholars have claimed that civil jury nullification no longer exists. And in the criminal context, while the Double Jeopardy Clause allows some forms of nullification, the Supreme Courts’ recent decision in Peña-Rodriguez v. Colorado, 137 S.Ct. 855 (2017) places new restrictions there as well.
This Article proposes a more capacious understanding of nullification in which it is conceptualized as an extreme injection of extralegal considerations into the jury’s verdict. It further contends that all jury verdicts fall upon a nullification spectrum in which more or fewer extralegal considerations influence the verdict. This spectrum is already implicit in the rules and case law, but has been overlooked in the literature. This new model of nullification allows us to reconsider the ways in which civil and criminal juries exercise their institutional power both to bolster and undermine the law. This is especially true in the civil context, as juries may manipulate outcomes in private disputes with greater minutiae than they may in criminal disputes. Finally, the model allows us to better understand the continued vitality of an increasingly sidelined institution.
Keywords: Peña-Rodriguez v. Colorado, Nullification
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