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Monday, May 23, 2005

Jury Nullification News

I am currently working on a paper relating to (though not exactly focusing on) the question of jury nullification.  And so I was interested to see this en banc opinion from the Ninth Circuit.  The divided court ruled that model grand jury instructions that preclude grand jury nullification of criminal laws are constitutional.

[Thanks for the pointer, Howard.]

There is a recurring debate as to why juries are valuable.  Those who favor the "task-oriented" view of the jury basically believe that juries are valuable because 12 heads (or six, or whatever) are better than one.  That is, they believe that juries tend to get the answer right.  Whether proponents of this view will demand juries that are representative of the larger community's race, gender, politics, and education will depend on the kind of case.  This group opposes nullification as beyond the jury's purview and violative of rule of law concepts.  Most importantly, this group believes that in cases in which juries are unlikely to do "better" than judges, we shouldn't have juries--and that these cases are becoming more and more common.  This is the impetus behind proposals to do away with juries in complex cases; and it is the dominant theory today.

On the other hand, there are those who believe that juries are desirable not simply because they are technically proficient, but because they have democratic and deliberative legitimacy.  I call this the populist view.  Populists may support jury nullification and generally demand representation of the community in all cases, including those in which non-representative juries may actually be more technically proficient.

Both views go back to the very earliest incarnations of the jury.  At that time, they were not really at odds with each other.  Over time, however, as the nature of trials, juries, and society in general has changed, these two views are increasingly at odds.  Most interestingly, it is, in part, the success very of the populists in advocating for representative, non-elitist juries (think Batson and the 1968 Jury Selection and Service Act) that precipitated the rise and dominance of the task-oriented critique. 

The story, of course, is more complex than I have made it out to be here; which is why I am writing a paper on it.  The paper is at its earliest stages, and any thoughts, comments, references, and citations are welcome and appreciated.

Posted by Hillel Levin on May 23, 2005 at 02:59 PM in Law and Politics | Permalink


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Thank you both very much for your comments and thoughts.
Dave: I've read your paper and expect to cite is. As for the "hook" you suggest, this is precisely what I have in mind when I say that the success of the populist critique is, in part, what has led to the dominance of the task-oriented view. My view is not quite as strong as yours, but I think we are thinking along the same lines.

Posted by: amosanon1 | May 23, 2005 9:50:43 PM

It is shameless, but you might be interested in the article Kaimi Wenger and I wrote on this topic - "Nullificatory Juries" (2003 Wisc. L. Rev. 1115) in which we offer a bit of potted plant history, and then compare the legitimacy of civil and criminal nullification. A hook that you might want to explore is the connection between the expansion of the venire (women, minorities, poor) and the decline in the power of the populist conception of the jury. Think of some of the critiques of jury verdicts - "flighty" "amok" "emotionally driven" - and consider where such rhetoric might arise.

Posted by: Dave Hoffman | May 23, 2005 9:43:37 PM

In Morton Horwitz's Transformation of American Law 1780-1850, in advancing his arguments about how the judges and lawyers aligned themselves with the emerging mercantile class and against populist democracy, Horwitz cites 1800-1850 sources showing that judges left juries with only the factual disputes and took away the legal issues. I forget which chapter it is, but it's not hard to find it. Constable (The Law of the Other) looks at the concept of political power and citizenship embodied in mixed juries that declared the law and later embodied in more positivist notions when the mixed jury was abolished and the juries were instructed on the law.

Posted by: John Steele | May 23, 2005 4:18:48 PM

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