Jury's power to apply the law

Power to apply the law to the facts

The traditional statement that the jury is to take the law given by the judge and apply it to the facts misleadingly suggests that juries have no role in determining what the law is. In fact, juries determine what the law is in every case to a limited extent. This is true because even the clearest instructions on the law still require juries to make some judgments about what the instructions mean (although the more completely a legal term is defined in the instructions, the less room there is for juror interpretation of the law). For example, words describing the burden of persuasion (“by a preponderance of the evidence” in most civil cases; “beyond a reasonable doubt” in all criminal cases) inevitably require jurors to interpret what those phrases mean in the context of the facts of the case, no matter how carefully the phrases are explained. And some important legal questions are explicitly structured so as to provide for juror interpretation of what the law is. A primary example is negligence, which is defined in terms of how a “reasonable person” would have behaved, and the jurors are responsible for determining the behavior of a “reasonable person.” For a reading list concerning juries’ legitimate law-making functions, see below.

One mechanism for attempting to limit jury interpretation of law is the “special verdict” form. A special verdict form asks the jurors to answer specific questions about the case, as contrasted with a “general verdict” form that simply asks the jurors to report which party won. Presumably, a jury will engage in more legal interpretation when a general verdict form is used. For further reading concerning special verdicts, see below.


Further reading about juries’ legitimate law-making functions

Here are scholarly writings about the role juries have in interpreting law:

Lawrence W. Solan, Jurors as Statutory Interpreters, 78 Chi.-Kent L. Rev. 1281 (2003).

Darryl K. Brown, Judicial Instructions, Defendant Culpability, and Jury Interpretation of Law, 21 St. Louis U. Pub. L. Rev. 25 (2002).

Darryl K. Brown, Plain Meaning, Practical Reason, and Culpability: Toward a Theory of Jury Interpretation of Criminal Statutes, 96 Mich. L. Rev. 1199 (1998).


Further reading about special verdicts

Janine Robben, 65 Ore. St. B. Bull. 9 (Apr. 2005), Feature Who Decides? Specialized Courts Vs. The Jury Of Peers.

Kate H. Nepveu, Note, Beyond “Guilty” or “Not Guilty:” Giving Special Verdicts in Criminal Jury Trials, 21 Yale L. & Policy Rev. 263 (2003).

J. Kevin Wright, Comment, Misplaced Treasure: Rediscovering the Heart of the Criminal Justice System Through the Use of the Special Verdict, 19 T. M. Cooley L. Rev. 409 (2002).

Steven J. Glassman & George A. Xixis, Special Verdicts in Patent Cases: A Critical But Underused Alternative, 10 J. Proprietary Rts. 2 (1998).

David A. Lombardero, Do Special Verdicts Improve the Structure of Jury Decision-Making?, 36 Jurimetrics J. 275 (1996).