Jury Nullification as a Spectrum

Abstract

Jury nullification traditionally refers to the jury’s power to deliver a verdict that is deliberately contrary to the law’s clearly dictated outcome. A spirited scholarship is built around this understanding, with some painting nullification as democratic and others as lawless. But this debate is increasingly unmoored from experience. In practice, courts have long formally eliminated the jury’s right to review the law and have established procedures that make it easier to prevent and overturn seemingly nullificatory jury verdicts. Thus, outside of a jury’s verdict acquitting a criminal defendant, jury nullification as traditionally understood does not exist: In no other context is a jury’s verdict inviolate. Jury nullification, then, describes a largely antiquated institutional power; it is a concept (over)ripe for review and reconsideration. This Article proposes a more capacious understanding of jury nullification, conceptualizing it as the routine injection of extralegal considerations into the jury’s deliberations. It contends that all jury verdicts fall upon a nullification spectrum in which extralegal considerations exert greater or lesser influence, regardless of whether the verdict appears reasonable. This spectrum is implicit in the rules and case law but has largely been overlooked in the literature. Making it explicit allows us to reconsider the ways juries exercise their institutional power both to undermine—and bolster—black letter law within the confines of modern procedures. Finally, this model allows us to better understand the continued vitality of the modern jury even as a seemingly side-lined constitutional actor.