About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

30 Am. Crim. L. Rev. 239 (1992-1993)
Considering Jury Nullification: When May and Should a Jury Reject the Law to Do Justice

handle is hein.journals/amcrimlr30 and id is 249 raw text is: CONSIDERING JURY NULLIFICATION: WHEN MAY AND SHOULD A JURY REJECT THE LAW TO DO JUSTICE The Honorable Jack B. Weinstein* I. INTRODUCTION ....................................... 239 II. D ISCUSSION .......................................... 24 1 A. Disobeying Unjust Laws ......................... 241 B. The Perceived Problem ........................... 245 C. Allowing Nullification Without Fostering It ......... 249 III. C ONCLUSION ......................................... 253 I. INTRODUCTION There seems to be a good deal of distress expressed today about per- ceived jury nullification.' Nullification occurs when a jury - based on its own sense of justice or fairness - refuses to follow the law and convict in a particular case even though the facts seem to allow no other conclu- sion but guilt.2 Such concerns about jury nullification in my district - the most densely populated district in the country after Washington, D.C.- are unwarranted. The legitimacy of the jury process demands respect for its outcomes, whatever they may be. Attempting to distinguish between a right out- come - a verdict following the letter of the law - and a wrong one - a nullification verdict - can be dangerous, and this endeavor depends * United States District Judge, Eastern District of New York. This essay expands on a speech origi- nally delivered at the 1992 District of Columbia Circuit Conference in Williamsburg, Virginia. I ac- knowledge with thanks the able assistance of my law clerk, Jessica C. Vapnek. 1. See, e.g., Terence Moran, Maybe the Jury was White, CONN. L. TRI., June 15, 1992, at 15 (discussing concern that Rodney King verdict reflected views of community, rather than adjudication of facts). 2. Although there may be examples of nullification by conviction, as by a refusal to follow instruc- tions on justification or the requirement of mens rea, the possibility seems to be remote in practice except as an expression of extreme prejudice based on race or the appalling nature of the issue. See Jon M. Van Dyke, The Jury as a Political Institution, 16 CATH. LAw. 224, 238-39 (1970) (nullification by conviction is unlikely because courts can reverse convictions unsupported by facts and reason). But see Irwin A. Horowitz & Thomas E. Willging, Changing Views of Jury Power, 15 L. & HuM. BEHAv. 165, 172-73 (1991) (studies suggest juries receiving nullification instructions treat unsympathetic defendants more harshly than other juries). Such prejudicial convictions are, I believe, much rarer today than in times past, partly as a result of post-World War II improvements in our justice system and partly due to a society more tolerant of diversity. Nullification by conviction of a defendant who should under the law have been acquitted cannot be tolerated.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most