Abstract Decades before Canada abolished the death penalty, it removed infanticide from the Criminal Code’s offences punishable by death. In 1948, this form of culpable homicide became punishable by imprisonment up to a maximum of three years. Although this statutory invention has been linked to the post-war rise in the pathologization of women’s violence and tied to legislators’ concerns over jury nullification, its nexus with the death penalty’s abolition has been overlooked. If the prospect of capital punishment did not deter women from killing their newborns, could the death penalty be justified for other forms of culpable homicide? Critics who posed this question about neonaticide wedged open the consideration of other forms of homicide and categories of offenders, undermining long standing certainties over the deterrent potency of capital punishment. Rather than a step in the abolition movement, the amendment merits acknowledgment as a significant move against the death penalty.

After the verdicts in the OJ Simpson and Stacey Koon/Laurence Powell cases, many in the press explained the juries' acquittals as instances of jury nullification. However these were unlikely to have been instances of nullification, particularly because the jurors explained that their verdicts were based on reasonable doubt. One motivation for these false claims of jury nullification was the homogeneity of the juries-a largely African-American jury in the case of Simpson and a largely white jury in the case of Koon/Powell. Nullification became the term by which press and public attempted to discredit verdicts rendered by juries they distrusted. A false claim of nullification could also be used, as with the Simpson case, to perpetuate racial stereotypes. One step toward reducing false claims of nullification and their concomitant harms is to encourage diverse juries.

Jury Nullification: The Jurisprudence of Jurors’ Privilege Travis Hreno

The general view is that civil disobedience cannot be ‘legally justified’ because it is ‘an act that violates the law’, and that the disobedient must be willing to accept the legal consequences of his or her disobedience. However, as long as the value of civil disobedience is needed to resolve the partial breakdown of the system that the representative system cannot properly handle, is it impossible to recognize the legal justification beyond acknowledging moral justification for civil disobedience that fully accepts the entire legal order? This paper starts from this question and seeks to explore the possibility of legal justification of civil disobedience in relation to positive law. This is because acknowledging the role of civil disobedience in supplementing the blind spots of the representative system and seeking ways to legalize it to a certain extent is rather a way to expand the realm of the rule of law.
 The concept of legal justification for civil disobedience is being used vaguely, with its specific relationship to positive law unclear. Therefore, first of all, it is necessary to confirm the concept of legal justification of civil disobedience in relation to the Constitution and positive laws. This must begin with distinguishing between direct and indirect civil disobedience. That’s because the legal justification of civil disobedience itself or individual acts of disobedience varies depending on whether the target rule violated by civil disobedience is consistent with or inconsistent with the target law or policy that civil disobedience aims to protest.
 Jury nullification in the US jury system is an exceptional system in which a jury acknowledges that the accused is guilty of a crime charged in a criminal trial, but finds him innocent for various reasons. As long as jury nullification, which is an important part of the jury system, is understood as a constitutional issue, the implications of jury nullification on the legal justification of civil disobedience are relevant. The device of jury nullification, which sometimes grants legal immunity to civil disobedience, provides an implication in interpreting the social rule provisions(Article 20) of our criminal law.
 As a result of a large-scale protest against the installation of nuclear missiles in Germany in the 1980s, the German Federal Constitutional Court finally discussed civil disobedience. In particular, in the 1986 decision, some Constitutional Court judges put forward a theory referred to as the constitutional influence of civil disobedience. The majority opinion in the 1995 decision, which followed over time, also presented an interpretation that respond implicitly to the theory presented by the dissenting opinion in 1986. Therefore, we will examine this theory, which provides important implications for the interpretation of the social rule.

The Supreme Court of Canada’s decision in R v Khill provided a novel moral framework for self-defence. Whereas self-defence was previously categorized as a justification, the Court now maintains that it constitutes an excuse in some cases. In other cases, the Court suggests self-defence sits between justification and excuse, captured by a principle I elsewhere call “moral permissibility”. The Court’s choice to adopt a more robust relationship between the moral principles underlying justification/excuse and self-defence is principled. However, the basis for that conclusion—the application of moral philosophy to the law of criminal defences—applies with equal force to the law of duress and necessity. Unfortunately, the statutory duress defence and section 8(3) of the Criminal Code limit the juristic scope of those defences. Although these restrictions may be challenged under section 7 of the Charter, this challenge will likely fail as defendants need not be denied a defence. Instead, they will be denied a proper moral assessment of their actions. To instill greater coherency into the law, it is prudent to repeal the statutory duress defence. This approach would allow courts to utilize the broad wording of the new “defence of person” provision to develop the law of self-defence, necessity, and duress in line with the moral philosophy underlying these defences. Constitutionalizing the principles underlying criminal defences can nevertheless serve two broader purposes: mitigating the tendency of courts and counsel to unduly rely upon other less transparent (jury nullification) or heavy-handed (judicial review) legal devices to avoid conviction.

Abstract The case of R v Stringer and Dean provides a unique insight into issues of dishonesty and possible jury nullification in offences designed to control corporate misbehaviour. The jury were unconvinced of the defendants’ dishonest state of mind in the first (and to date only) case to be tried under the UK’s cartel offence. This was despite no attempt being made to dispute the existence of the cartel or present evidence in their defence. The paper asks whether the trial highlights flaws in the concept of dishonesty or reflects a broader problem of jury nullification in offences relating to corporate misconduct. It concludes that although dishonesty is unpredictable and can be easily challenged in the context of business misconduct, there is also a significant danger that juries question the legitimacy of treating cartels and other forms of business misconduct as crime, regardless of how an offence is designed.

In The Rule of Law in the Real World, Paul Gowder presents a new account of the rule of law based on three conditions: publicity, regularity, and generality. In this essay, I examine two closely related questions that are prompted by Gowder’s version of the rule of law. First, does the rule of law require citizens to follow the law? Second, what does Gowder’s account mean for jury nullification? I argue that the rule of law does not require citizens to follow the law, but it does prohibit jury nullification. A discussion of some moral implications and objections follow.

The Underused Power of Jury Nullification

Abstract Previous research is largely mute about the strategies that printers and their legal counsels used to defend state libel lawsuits. Analysis of the legal arguments employed in sixty-eight state libel jury trials in anglophone courts from 1699 to 1792 identifies which of them were most associated with acquittal. Jury-nullification arguments, based on freedom of the press, which encouraged jurors to disregard judges’ directives and to contravene the law, had a higher rate of success than did approaches based on the standard legal precedents of the period. These findings suggest that the public was sympathetic with a broad interpretation of press freedom at a time when many Crown judges attempted to limit it exclusively to prior restraint.

ABSTRACT Voting for a candidate that is no longer alive at the time of election may be considered a wasted vote. Nevertheless, there are instances in which such a vote means to overcome the legal limitations and choose how to be represented. This article aims to illustrate how such a behavior can be calculated when citizens vote for a dead candidate to nullify an electoral law that they consider unfair. This is driven by what we call electoral process nullification, which is the political equivalent of jury nullification. We use evidence from the local elections organized in September 2020 in a Romanian commune of approximately 3,000 inhabitants. A dead candidate won the elections with 64% of the votes. Our results draw on semi-structured interviews with people who voted for that candidate.

In cases of euthanasia, determinations of guilt may be influenced by legal and extra-legal factors. This study explores the role that nullification instructions play in juror decision making. A defendant may be viewed as less culpable if the act was done out of mercy and jury nullification may occur as a result. We anticipated that these determinations may be influenced by the manner of death and the relational distance between the defendant and the decedent. It is unknown how euthanasia is viewed when it is performed by a physician compared to a family member or friend. To answer these questions, participants acted as mock jurors in a euthanasia case. The descriptions of the case varied by the presence of nullification instructions, the manner of death, and the defendant's relationship to the decedent. The results revealed significant effects of method of euthanasia and the type of defendant on juror verdicts. Jurors were most likely to acquit in a case that provided nullification instructions and involved a spouse using lethal injection for euthanasia. This finding suggests that different circumstances of a euthanasia case will affect jurors' propensity to focus on personal sympathies and interpretations. Limitations and future directions are discussed.

The Underused Power of Jury Nullification

In a mock-trial study, jurors read evidence about a doctor who had killed a terminally ill patient at the patient’s request. We tested whether instructing jurors about jury nullification (ie jurors’ power to return a not-guilty verdict even when legal guilt is beyond doubt, often because the law would result in unjust convictions) would exacerbate the effect of pre-trial euthanasia attitudes on their verdicts – compared to standard, pattern jury instructions. We also hypothesized that anti-euthanasia pre-trial attitudes would result in moral outrage at the defendant and higher conviction rates, but pro-euthanasia attitudes would prompt feelings of moral outrage at the law and lower conviction rates. Moderated mediation analyses revealed that nullification instructions bolstered the effect of attitudes on verdicts by encouraging jurors to rely on their feelings of moral outrage toward the defendant. Jurors’ moral outrage toward the law mediated the effect of attitudes on verdicts regardless of nullification instructions.

In 2018, the Utah legislature considered a proposed bill that would have explicitly granted jurors the right to nullify in criminal cases. This research, done in preparation for committee testimony, contains the most up-to-date law on the topic. It includes a fifty-state survey on whether juries in various jurisdictions are (1) given the right to consider the possible sentencing penalty before rendering a verdict; (2) told they may disregard the law; or (3) instructed on the right to nullify. Additionally, the research includes fifty-state survey data on whether judges may lie to juries about the right to nullify, and how various jurisdictions treat attempts by outside organizations to notify potential jurors of their right to nullify.

Reviewed by: They Stole Him Out of Jail: Willie Earle, South Carolina’s Last Lynching Victim by William B. Gravely Selika M. Ducksworth-Lawton They Stole Him Out of Jail: Willie Earle, South Carolina’s Last Lynching Victim. By William B. Gravely. (Columbia: University of South Carolina Press, 2019. Pp. xxvi, 309. $29.99, ISBN 978-1-61117-937-8.) They Stole Him Out of Jail: Willie Earle, South Carolina’s Last Lynching Victim by William B. Gravely is an important local history of the last lynching in South Carolina. This history illustrates how the seamless corruption of security forces, judiciary limitations, and jury nullification combined to protect lynchers. The split between the FBI and the state judiciary created space for the lynchers to manipulate the system and avoid punishment. Someone robbed, stabbed, and beat a white taxi driver, Thomas Watson Brown of the Greenville Yellow Cab Company, in February 1947. Brown claimed it was a large black man. Police arrested Willie Earle, who was five feet, nine inches tall, 150 pounds, and a drunken veteran, claiming that he was the [End Page 523] perpetrator. A mob of taxi drivers broke Earle out of jail, with no resistance from the jailer, on February 17, the day Brown died from his injuries. They beat Earle so hard that they split the butt of a rifle; they repeatedly stabbed him and finally blew half of his face away with a single-barrel shotgun. Later federal investigation showed that the police probably misidentified Earle, and only circumstantial evidence connected him to the attack. Earle’s death set off a political firestorm, leading to a federal-state turf war and overt, smirking jury nullification. The case received an enormous amount of press attention in the North. Inexplicable mistakes and decisions by the state prosecutors, as well as white supremacy, led to a jury refusing to convict the confessed, grinning, open members of the mob despite overwhelming evidence. Gravely has made masterful use of his sources. He utilizes multiple manuscript collections, memoirs, African American press accounts, white local newspaper accounts, the letters and notebook of renowned British journalist Rebecca West, court documents, and interviews with Earle’s mother, Tessie Earle, and several others. The deaths of some of the major players left gaps that were hard to fill about motivation and the coordination of the accused lynchers’ stories. Gravely is an accomplished scholar and author, a professor emeritus at the University of Denver. He is also a native of Pickens County, South Carolina, where the lynchers murdered Earle, which gave him certain advantages in accessing interviews with witnesses. Gravely’s writing is engaging and lyrical. The first chapter hooks the reader. The author weaves his analysis throughout the chronological text, keeping the state-federal fight between J. Edgar Hoover’s FBI and the state of South Carolina judicial system front and center. The masterful use of language and the clear writing style lead the reader through the court proceedings. This work has a few weaknesses. The chapter “Discovering Willie Earle” discusses Earle’s life and character, but in that chapter, only two pages discuss Earle’s character and life, his epilepsy, and his arrests in 1946 for drunkenness. The most salient, and tragic, sentence in this chapter explains the mob fury: “The specter of the violent black male dwarfed any reasonable effort to find out about the real Willie Earle” (p. 92). Earle’s veteran status needs more attention. The epilepsy is given short shrift by the author. The reader will come away with a clearer understanding of how Jim Crow, judicial competition, white supremacy, and corruption prevented the enforcement of rights for African Americans against lynching in the South. This work ties local history in South Carolina to the national and regional racial movements of the time, making it important for both historians and interested casual readers. Selika M. Ducksworth-Lawton University of Wisconsin–Eau Claire Copyright © 2020 The Southern Historical Association

Jury nullification refers to the inherent power of a jury in a criminal trial to refuse to convict a defendant if the jurors are convinced that such a conviction would be fundamentally unjust. According to the Supreme Court of the United States, this power was intentionally given to criminal jurors by the framers of the Constitution, who were determined to ensure that the jury would preserve an inviolable power to act as a guardian against political oppression and unjust prosecutions. Despite those impressive constitutional roots, however, jury nullification has received a great deal of unfavorable press, at least among modern judges. For many years, state and federal courts throughout the nation have been unanimous in rejecting any suggestion that jurors ought to be advised about their power to nullify, and have in fact agreed that the jurors should generally be told that they have no such authority. This article examines the constitutional roots behind the power of jury nullification. It also lists the six most common reasons given by courts for their persistent refusal to instruct the jurors about the nature of that power – and exposes the logical fallacies underlying all six of those objections. It concludes with a reminder as to how the absurdity of modern American legal doctrine on this topic was accurately predicted, more or less, by a British moral philosopher in the 19th century, and offers some practical suggestions as to what jurors should be told by the trial judge.

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.

Jury nullification is the ability of juries to acquit criminal defendants even against the apparent weight of the law and the facts. This commentary asks whether jury nullification is a “bug” or a “feature” of the American criminal trial, a question separate, for example, from whether it is good or bad. The commentary concludes, tentatively, that jury nullification, on one understanding, might be a “feature.” In that understanding, jury nullification reflects the jury’s authority, in exceptional cases, to particularize the applicable law by way of its existential engagement with a live defendant and the unique circumstances of a case. The possibility of jury nullification might therefore represent the legal system’s implicit recognition that law can have a granular as well as a global quality. This power, if it exists, is necessarily controversial, though it has analogues in religious normative systems. Its embrace would require a more complex theory of law.

Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting the role of the jury and ultimately indicate that we trust juries to keep racism out of the courtroom in the exceptions to our normal procedures.

ABSTRACTI discuss some of the roles that lay people play in relation to the criminal law, and how that law should figure in their practical reasoning: this will also cast light on the place of criminal law in a democratic republic. The two roles discussed in this paper are those of citizen, and juror. Citizens should be able to respect the law as their law – as a common law; but this must be a critical respect, captured in the idea of ‘law abidance’ as a civic virtue. Jurors are tasked with making normative judgments of guilt or innocence, as part of a process through which those accused of criminal wrongdoing are called to answer to their fellow citizens: they must therefore be able to understand the law, and make it their own – which raises the question of whether jury nullification can be an appropriate response to unjust laws.