NCJ Number
73179
Journal
Law and Contemporary Problems Volume: 43 Issue: 4 Dated: (Autumn 1980) Pages: 51-115
Date Published
1980
Length
65 pages
Annotation
The right of the criminal defendant to have the jury instructed on its power to acquit in spite of the law if it considers the law to be oppressive in certain situations is explored, and its democratizing benefit to the judicial system and the general community is explained.
Abstract
Jury nullification was commonly accepted and applied in 17th-century, 18th-century and 19th-century America. Juries were frequently instructed that they had the power to reject the judge's interpretation of the law, and to make application of the law consistent with community notions of justice and fairness. During the late 19th-century and early 20th-century, this power was curtailed, to prevent the jury from imposing harsh and vindictive law. The controversy was reopened during the political trials of the 1960's. Currently, two States (Maryland and Indiana) provide for giving instructions on the power of the jury to reject the law in specific instances, and their criminal justice systems do not appear to be disrupted by the practice, although most judges and some commentators continue to resist the idea. Arguments against nullification include that it would lead to anarchy; that it is unwise or unnecessary; that it is necessary, but better left implicit; or that an instruction on nullification would impair the responsibility of the jurors by confusing them on their duties. These are countered by arguments that nullification is particularized, making the threat of anarchy unrealistic, that in certain instances, nullification is the only remedy to overzealous prosecution; and that it supports democratic principles by supplementing legislation in areas unanticipated by legislators. Other counterarguments are that instructing on nullification does not dramatically increase the number of acquittals, will demystify the system, and will formally acknowledge the existence of the power to nullify; and that formal recognition of nullification will allow jurors to accept responsibility for verdicts contrary to the law. Allowing instruction on the nullification power will clarify the function of juries to jurors and the community at large, and assure that juries truly represent the conscience of the community. The article has 260 footnotes.