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Wednesday, January 11, 2006

Jury Nullification in Canada, the US and in my classroom

I just finished teaching the Ragland decision from NJ about jury nullification (it's in the Dressler casebook).  Included in the notes are extensive excerpts from Paul Butler and Andy Leipold's exchange on the virtues and vices of race-based jury nullification, as well as whether a jury should be informed of its power to nullify.  Serendipitously, the issue of jury nullification is also appearing tomorrow before the Canadian Supreme Court, as described in today's interesting article in the Globe and Mail about a medical marijuana case.  (Today's piece in the NYT about the selling of police union membership cards on eBay signals concerns about another kind of discretion, but put that aside for now.)

One reason judges, like Chief Justice Wilentz of the NJ court, reject the "fully informed" jury is a sense that jury nullification severely encroaches upon rule of law values.  (Dave Hoffman and Kaimi Wenger explore this criticism in their paper on the subject.) But I wonder if this rule of law objection could be surmounted if a particular jurisdiction actually authorized and recognized the use of jury nullification as a right, not simply a power.  A few years back, for example, South Dakota considered (and rejected) amending its constitution so that juries would be fully informed of their power to nullify against the law and facts.  (I think a couple of jurisdictions even have language to that effect also.) 

To what extent does democratic (and constitutional) authorization of these "lawless" practices assuage our rule of law anxieties? For me, the answer is not much, as I tried to explain in Against Mercy.  But as I teach these issues and see how the argument plays out in the pardon or jury nullification context, I sometimes wonder about the answer I gave there, and the line-drawing problems and tradeoffs that accompany that answer.  The jury nullification context, in particular, raises a salient normative challenge because on the one hand, norms of equal protection are at stake by allowing the practice to occur while, on the other hand, the practice might serve a valuable role in checking the power of the government, a goal clearly on the minds of the Framers who wanted to contain and disperse governmental power, and a goal that seems worthy of our fidelity.  In other words, there's a clash of two compelling norms and it's not clear how one legally would resolve that, or morally.  I wonder, too, how Justice Breyer would respond: is it possible that  jury nullification is embroidered upon the tapestry of "Active Liberty?" 

Posted by Administrators on January 11, 2006 at 04:10 PM in Constitutional thoughts, Criminal Law, Current Affairs, Dan Markel | Permalink


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a highly relavent site regarding jury nullification in Canada http://juror.ca

Posted by: Chuck Beyer | Apr 24, 2006 11:07:45 PM

Jury nullification is the final check and balance on the government.
It is valid and anyone telling you otherwise is lying.

In the 20's, prohibition was repealed because juries wouldn't convict people for alcohol-non violent crimes, and that's the way the War on Drugs should end.

Posted by: Chill Bill | Feb 3, 2006 2:40:17 PM

The argument about the "quasi-democratic voice" of the jury is vaguely interesting but ultimately unpersuasive. Remember that the law is the expression of public will channelled through the operation of representational democracy. Jury nullification is the flouting of that public will by twelve people. Seen this way, jury nullification is a truly anti-democratic practice and the antithesis of justice.

Oh, and and if you think the death penalty is arbitrary and capricious (I don't, but I suspect many readers do), isn't jury nullification a million times worse?

Posted by: anonymous | Jan 12, 2006 4:46:07 PM

I leave it to others to say with greater certainty how the argument would unfold, but I suspect the notion is similar to the defense Hoffman and Wenger make on behalf of nullificatory juries: that they serve important signaling roles in a participatory democracy about the value of certain laws and that they add a quasi-democratic voice (more accurately stated as a "popular" voice) in the polyphonic way in which policy-making occurs.

Posted by: Dan Markel | Jan 12, 2006 2:52:35 PM

Dan asks about "jury nullification" in the context of Justice Breyer's "Active Liberty" argument. My own quick take would be (drawing on one of the more standard objections to nullification) that jury nullification (like the role that Justice Breyer seems to endorse in cases involving hot-button "social issues" or school vouchers) is an obstacle to "active liberty," properly understood, rather than a help. What is it, exactly, that a Breyer-themed defense of jury nullification would highlight as the "active liberty" good that nullification serves?

Posted by: Rick Garnett | Jan 12, 2006 2:37:56 PM

Jury nullification is valid only in a purely common-law jurisdiction. None of which now exist in the United States. Nobody can be convicted of the offense of murder, burglary or being a common scold without every element of the offense being spelled out. On the other hand they must be convicted if each element of the offense is proven beyond a reasonable doubt. Which was not the case in the good old days when the elements of the offense were left up to the judge and jury. Its worst form, in case we forget, was the acquittal of Klansmen accused of killing black people and civil rights workers in the segregationist South. I suppose that its application in common law tort cases would be less objectionable. Although it seems to work in favor of the plaintiff mostly. Half a million dollars for spilling hot coffee on one's lap as an example.

Posted by: nk | Jan 11, 2006 8:42:28 PM

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