65 U. Chi. L. Rev. 433 (1998)
Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom

handle is hein.journals/uclr65 and id is 443 raw text is: Silencing Nullification Advocacy Inside the
Jury Room and Outside the Courtroom
Nancy J. Kingt
INTRODUCTION
Jurors in criminal cases occasionally nullify the law by ac-
quitting defendants who they believe are guilty according to the
instructions given to them in court.1 American juries have exer-
cised this unreviewable nullification power to acquit defendants
who face sentences that jurors view as too harsh, who have been
subjected to what jurors consider to be unconscionable govern-
mental action, who have engaged in conduct that jurors do not
believe is culpable, or who have harmed victims whom jurors con-
sider unworthy of protection.2 Recent reports suggest jurors today
are balking in trials in which a conviction could trigger a three
strikes or other mandatory sentence, and in assisted suicide,
drug possession, and firearms cases.3 Race-based nullification is
f Professor of Law, Vanderbilt University. I owe thanks to many colleagues for help
they have given me on this Article, especially the thoughtful participants in the Constitu-
tional Law Workshop at the University of Virginia and the faculty workshops at Vander-
bilt University and the University of Texas. I am particularly grateful for the research as-
sistance provided by Randall Butterfield, Cheryl Johnson, and Courtney Persons, and by
the staff of the Vanderbilt University Law Library.
1 Professor Peter Westen has aptly described jury nullification as acquitting against
the evidence rather than on the evidence. Peter Westen, The Three Faces of Double
Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich L Rev 1001,
1012 (1980). The frequency of nullification is unknown, but most commentators agree that
it rarely occurs. See Harry Kalven, Jr. and Hans Zeisel, The American Jury 56-57, 116
(Chicago 1971) (providing data that indicates judges attribute to nullification only about 4
percent ofjury acquittals in criminal cases in which the judge would have convicted). See
also Roger Parloff, Race and Juries: If It Ain't Broke .... Am Law 5, 5 (June 1997) (re-
porting acquittal and hung jury rates for several jurisdictions). Compare Clay S. Conrad,
Jury Nullification as a Defense Strategy, 2 Tex Forum Civ Lib & Civ Rts 1, 26-33 (1995)
(collecting many recent examples of nullification).
2 See Kalven and Zeisel, The American Jury at chs 20-27 (concluding that jurors nul-
lify where they believe the defendant has been punished enough, where the punishment
threatened is too severe, where the state has given a codefendant preferential treatment,
where the police or the prosecution have acted improperly, where the defendant's conduct
was inadvertent, where the defendant was insane or intoxicated at the time of the offense,
or where the defendant or victim is a member of a particular group or subculture).
See, for example, Gail Diane Cox, Jurors Rise up over Principle and Their Perks,
Natl L JAl (May 29, 1996) (reporting that jurors in a recent San Francisco case refused to
continue deliberations when they learned the defendant would be subject to the three
strikes law); Aaron T. Oliver, Jury Nullification: Should the Type of Case Matter?, 6 Kan
433

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