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February 4, 2020

"Jury Nullification: The Current State of the Law"

The title of this post is the title of this notable new resource authored by Louisa Heiny now available via SSRN.  Here is its abstract:

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.

February 4, 2020 at 08:57 AM | Permalink


Jurors have always had the right to nullify, but most jurors don't know it because since the early 1890's during the famous Tennessee coal miners' strike against convict labor where jurors nullified convictions against all strikers, judges have since attempted to falsely tell jurors that nullification no longer exists.

Posted by: William R. Delzell | Feb 4, 2020 10:14:27 AM

When the proponents agree that the jury can also hear of the defendant’s criminal history in its determination as to whether to employ jury nullification then we can have a serious talk about expanding its use and providing appropriate guidance. I have yet to see a proponent of jury nullification who is also willing to provide the jury such relevant information to the question. This causes me to question their motives. Do they really believe in jury autonomy or do they simply want to tie one hand behind the government’s back for reasons unrelated to belief in the jury system.

Posted by: David | Feb 4, 2020 9:06:12 PM

David, I would assume the motives vary depending on the individual. For purposes of motives, it doesn't make sense to group all of us together as "they".

That said, your question is a reasonable one, and I'd never even considered it. Not sure how that might work? Maybe the defense gets to explicitly opt-in to nullification, and if it does the prosecution gets to introduce criminal history in arguing against? But the biggest problem with our system is the already-tremendous cost and complexity of trying cases. One doesn't want to make that even worse.

Posted by: William C Jockusch | Feb 7, 2020 7:38:42 AM

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