Apparently most people agree with the law’s stance that nullification constitutes a malfunction of the legal system, and certainly should not be encouraged by informing jurors that they have a right to engage in nullification. The evidence that nullification does not express the popular will is that no jurisdiction has changed its law to reinstate nullification, despite continuing campaigns waged by nullification supporters. For example, a recent ballot initiative in South Dakota to require that jurors be informed of their power to nullify lost with a whopping 78% of votes against it.

The primary arguments against nullification are as follows:

• Law should be made by elected legislators, not by jurors chosen randomly from the population.
• Jury nullification would be inconsistent with the law’s aspiration that similar cases should be treated similarly because nullification would have unpredictable results in similar cases based on the preferences of different juries regarding the desirability of the same law.
• The system has worked well for over a century without jury nullification.
   

Despite these arguments that seem compelling to most people, there are vocal supporters of the idea that jurors should be informed in criminal cases of their power to nullify to avoid unjust convictions.  To go to the Web site of the most prominent group of nullification supporters, click here. The arguments in favor of nullification are as follows:

• The Framers of the Constitution believed in the jury as a check-and-balance against government tyranny, and intended for the jury to have the power and right to nullify in cases of unjust criminal prosecutions.

• That function of the jury is still essential today to protect against unjust prosecutions.
   

Sources regarding jury nullification

Here are some further sources for reading about jury nullification:

Carrie Ullman, 18 Geo. J. Legal Ethics 1097 (2005), Current Development 2004-2005 D.C. Bar Opinion 320: How A Defense Attorney Can Advocate For Her Client Without Encouraging Jury
Nullification.

Teresa L. Conaway, Carol Mutz, Joann M. Ross, 30 Val. U. L. Rev. 393 (2004) Survey Jury Nullification: A Selective, Annotated Bibliography.

Michael A. Haskel, 77 N. Y. St. Bar J. 31 (Jan. 2005), Jury Nullification: Proposals For Reducing The Impact Of External Circumstances Upon Civil Verdicts In New York.

Otis B. Grant, 14 Geo. Mason U. Civil Rts. L. J. 145 (2004), Rational Choice Or Wrongful Discrimination? The Law And Economics Of Jury Nullification.

Paula L. Hannaford-Agor & Valerie P. Hans, Nullification at Work? A Glimpse from the National Center for State Courts Study of Hung Juries, 78 Chi.-Kent L. Rev. 1249 (2003).

Todd E. Pettys, Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification, 86 Iowa L. Rev. 467 (2001).

Lars Noah, Civil Jury Nullification, 86 Iowa L. Rev. 1601 (2001).

Irwin A. Horowitz, Jury Nullification: Legal and Psychological Perspectives, 66 Brooklyn L. Rev. 1207 (2001).

John Clark, The Social Psychology of Jury Nullification, 24 Law & Psychology Rev. 39 (2000).

Nancy S. Marder, The Myth of Jury Nullification, 93 Nw. U. L. Rev. 877 (1999).

Keith E. Niedermeier, Irwin A. Horowitz & Norbert L. Kerr, Informing Juries of Their Nullification Power: A Route to a Just Verdict or Judicial Chaos?, 23 L. & Hum. Beh. 331 (1999).

Darryl K. Brown, Jury Nullification Within the Rule of Law, 81 Minn. L. Rev. 1149 (1997).

Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L. J. 677 (1995).
 

Go Back