65 N.Y.U. L. Rev. 825 (1990)
Jury Nullification and Jury-Control Procedures

handle is hein.journals/nylr65 and id is 845 raw text is: JURY NULLIFICATION AND JURY-
CONTROL PROCEDURES
CHAYA WEINBERG-BRODT
INTRODUCTION
A battered woman is indicted for shooting and killing her spouse,
who beat her constantly during their marriage. On the night of the
shooting, her husband got drunk and threatened to beat her, but he
passed out instead. Before he came to, she shot him.
The defendant pleads self-defense. The applicable criminal code de-
fines self-defense as a response to a threat of immediate, serious bodily
injury, with retreat not possible. But the threat to the defendant was not
technically immediate, and she could have retreated. Her attorney,
though, is confident she can convince a jury that psychologically the
threat was immediate and that the woman was emotionally and, in some
sense, physically unable to retreat.
During voir dire, over defense objections, the judge permits the
prosecutor to ask each venire member if she would be sympathetic to a
defendant who had killed an abusive spouse and if that sympathy would
affect her deliberations or verdict in any way. The judge excuses for
cause anyone who answers that she would be somewhat sympathetic or
affected. Many of the women on the panel are eliminated through this
device. The final petit jury has only one woman.
Before trial, the prosecutor makes a motion in limine to exclude any
evidence relating to the conduct of the deceased which did not occur on
the night of the shooting, arguing that a valid claim of self-defense re-
quires that the danger be immediate. The judge grants the motion, hold-
ing that such evidence is not relevant to any legal defense and declaring
that otherwise the jury might acquit the defendant out of sympathy or a
belief that her actions were morally justified. The judge states that the
sole purpose of the trial is to determine legal guilt.
During her trial, the defendant testifies that on the night of the
shooting the deceased was drunk and threatened to hurt her seriously.
The prosecutor elicits that the victim was asleep at the time of the shoot-
ing. The judge instructs the jury that if it finds the threat to the defen-
dant was not immediate or that she could have retreated, it should
convict for second degree murder. The judge admonishes the jury to
refrain from considering extra-legal factors.
All the jurors agree that, technically, the defendant committed the
825

Imaged with the Permission of N.Y.U. Law Review

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