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Excerpted From: Richard Lorren Jolly, Jury Nullification as a Spectrum, 49 Pepperdine Law Review 341 (2022) (394 Footnotes) (Full Document)


RichardLorrenJollyThe jury is a core institution in the American experiment. Trial by jury was among the few rights universally secured by all thirteen original state constitutions, and it was one of the only rights mentioned by name in all three of the nation's founding documents: the Declaration of Independence, the Constitution, and the Bill of Rights. The institution deserves foundational recognition because it is uniquely positioned to check abuses of power by the traditional government branches and private actors. One way that the jury performs this function is by introducing democratic flexibility into the rigid administration of law. By drawing upon their notions of “common sense,” and channeling the community's “collective wisdom,” laypeople translate complicated legal strictures into popularly applied verdicts. But this is not to say that juries operate with Solomonic wisdom. To the contrary, in performing their constitutional role, jurors often draw upon irrational and irrelevant factors--factors that fall outside the formal bounds of, or are otherwise outright prohibited by, black letter law. This Article submits that jurors' regular injection of extralegal considerations into their decision-making is best understood as jury nullification.

This understanding of nullification is distinct from that traditionally advanced. While definitions vary, nullification typically refers to those instances in which the jury deliberately issues a verdict that contradicts the law's clearly dictated outcome. The term is most often reserved for describing a jury's verdict acquitting a criminal defendant in the face of obvious guilt; for instance, Northern juries who acquitted abolitionists involved in the Underground Railroad or Southern juries who acquitted whites involved in race-motivated violence. Less frequently, nullification is used to describe a jury verdict convicting a criminal defendant despite overwhelming evidence of innocence, as was common among all-white juries in the Jim Crow-era South. Finally, and even less frequently, nullification is used to discuss juries who decide civil cases with disregard for where the law clearly places liability, such as juries' regular refusal to enforce states' contributory negligence regimes in the early to mid-twentieth century. In each of these contexts, the typical nullification model views juries as deliberate in their circumvention of the law. Traditionally, nullification is an affirmative act of rebellion.

There is a vigorous debate over whether this rebellion is or is not sanctioned by the Constitution. Some writers defend what we might call an originalist perspective of jury authority. These authors argue that the Founders desired and secured an active jury made up of local laypeople flexing political power. In the run-up to the Revolution, the jury proved a core channel through which Colonists challenged the Crown and foreign creditors. And during the ratification debates, many writers stressed the need for constitutionally secured criminal and civil juries to serve as a similar bulwark against the proposed federal government. That this institution would be responsible for not merely fact-finding but also affirmatively passing judgment on the nation's laws was anticipated. Today, supporters of an originalist perspective stress that the jury as an institution remains well-positioned to serve this sociopolitical role. By ensuring that the state's power will not be brought to bear without passing through the conscience of local laypeople, the government and the law achieve greater democratic legitimacy, they say. For originalists, jury nullification is an enshrined part of the Constitution.

Alternatively, other writers defend what we might call a reconstructionist perspective of jury authority. These writers argue that allowing a small body of unrepresentative laypeople to disregard democratically enacted laws is akin to anarchy. Though there were writers at the Founding concerned about giving jurors too much power, the rejection of the law-finding jury grew markedly leading up to and following the Civil War. By this time, concepts of justice had shifted away from demanding democratic legitimacy in favor of the perceived need for uniform application. Allowing jurors to ignore laws based on personal beliefs (not infrequently informed by bigotry) was anathematic to reconstructionist ideals. Supporters of this perspective argue that nullification troublingly allows jurors to act as “mini-legislator[s],” undercutting, rather than enhancing, democratic legitimacy. As one judge noted, “No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable.” To those with a reconstructionist eye, nullification is lawless and antiquated in a modern democracy.

While these competing perspectives are helpful in marking the merits and demerits of jury nullification in theory, in practice the reconstructionist perspective has dominated. Sparf v. United States represents perhaps the sharpest demonstration of this domination. In 1895, the Supreme Court in that case explained that the jury's institutional role is limited to applying the law as given by the judge to the facts as presented in court; the jury has no right to determine the law. Many state courts followed suit, such that today only a handful of jurisdictions still formally recognize the jury's right to review law, and even then only in criminal, not civil, cases. Thus, the twentieth century made it clear that jury nullification is unprotected, if not prohibited. The common refrain is that jurors possess the “power,” but not the “right,” to nullify; that is, jurors can nullify insofar as there is nothing to stop them from issuing a verdict against the direction of the law, but it is an unlawful exercise of institutional authority for them to do so.

To enforce this shift to a reconstructionist understanding of jury authority, courts adopted new procedures to curb and to correct seemingly nullificatory verdicts. This is most apparent in the civil context, where judges claimed a host of powers that either did not exist or were otherwise greatly limited at common law. These powers include preventing juries from deciding cases with purportedly clear outcomes (as is the case with summary judgment) and rejecting jury verdicts--either pre- or post-verdict--as against the weight of the evidence (as with judgment as a matter of law). Courts also expanded the use of special verdicts rather than general verdicts, so as to deprive juries of the opportunity to apply the relevant law, as well as general verdicts accompanied by interrogatories, which judges rely upon to strike verdicts deemed inconsistent. In the civil context then, judges, not jurors, have the ultimate say in deciding the outcomes of non-settled or arbitrated disputes.

A similar pattern of restricting jury authority occurred in the criminal context. There, too, procedural developments limited jurors' ability to disregard the law in convicting criminal defendants. Note that at common law, judges enjoyed the power to order new trials if they found that a defendant's conviction was against the weight of the evidence. If the second jury decided the case likewise, the judge could order a third jury trial, and so on. It is a relatively recent development that judges could dismiss a jury conviction outright if they found it to be insufficiently supported. Similarly, in 2017 the Supreme Court decided Peña-Rodriguez v. Colorado, which recognized judicial authority to review jurors' substantive considerations and allowed judges to order a new trial if evidence of “overt racial bias cast[s] serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict.” While some will surely think it normatively good that judges can overturn seemingly unjust criminal convictions without the perceived inefficiencies of ordering a new trial, it is a remarkable curtailment of the jury's institutional power to nullify.

The result of these procedural developments is that other than a jury's decision to acquit a criminal defendant, a jury's verdict is never final. The finality in that limited context results from the Fifth Amendment's Double Jeopardy Clause, which ensures that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” So even if a jury decides to acquit a criminal defendant on the basis of an explicit, extralegal consideration--say, moral or political disagreement with the law's dictates--no court can later “correct” that verdict by ordering the acquitted to stand a new trial. But, to borrow a phrase, a jury's decision to acquit a defendant is infallible because it is final, not final because it is infallible. The Double Jeopardy Clause does not render all jury acquittal verdicts lawful simply by securing them from impeachment. Put another way: All acquittals are legitimate, but not all are lawful. Still the point remains, it is only in the narrow context of acquittal verdicts that the jury as an institution has the power to effectuate a final outcome. In no other context does the jury have the power to nullify the law--at least as understood in the traditional sense. This has led more than a few scholars to argue that jury nullification simply no longer exists in any context other than criminal acquittal; if the jury's verdict is not final, these scholars say, it's not nullification.

Pause. Just because the jury has been enfeebled by procedural developments over the last century does not mean that the institution's ability to determine cases unlawfully is eradicated. Even within their modern, more limited province, civil and criminal juries may still incorporate factors that fall outside the bounds of their lawful discretion, regardless of the resulting verdict's perceived congruence with the law's dictates. And because jury deliberations largely remain hidden, in most circumstances it cannot be known whether jurors followed the law's strictures in reaching their verdict or replaced them, either partially or entirely, with their own extralegal reasoning. A guilty verdict looks the same whether it is reached by dutiful application of law to fact, or by which side of a flipped coin lands facing up. So long as a jury verdict is reached in accordance with procedural due process requirements and appears to be rational, judges generally have no authority to disturb it. But a juror's extralegal moral or political (or racist, sexist, bigoted, or simply irrational) considerations--whether overt or private; conscious or unconscious; clearly reflected in the verdict or deeply hidden-- are no less nullificatory just because they slip past the procedural checks.

Accordingly, the degree to which extralegal factors exert influence over a jury verdict can best be understood as existing along a spectrum. This spectrum has been implicitly recognized by courts and empirically observed. One particularly illuminating example is the aforementioned Peña-Rodriguez decision in which the Supreme Court concluded that although there are certain circumstances in which a judge must review the substance of jury deliberations for overt racial bias, judges should not police every utterance of racist consideration. Be careful to note that the Court did not say that all racist statements by jurors require scrutiny and correction, even though a defendant's race often falls outside the bounds of what the jury may permissibly consider as part of its discretion. The Court ruled the opposite: “Not every offhand comment ... will justify setting aside the no-impeachment bar”; rather, “[t]o qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict.”

Realize that part of the problem from the Court's perspective is not simply that the offending juror drew upon an extralegal, racist consideration--a quintessential nullificatory factor--in reaching his decision to convict; instead, it is that racism might have played too big of a role in that decision. True, the Court makes clear that this approach is motivated in part by the perceived need to balance the interests of impartial justice with the values attendant to secret jury deliberations. But in so balancing, the Court implicitly acknowledges that jury verdicts are often informed by a variety of factors--some of which may be lawful and some of which may be unlawful. An extralegal consideration like racism might influence jury deliberations, even if it is not entirely dispositive of the verdict reached. So while a court may not disturb a jury verdict without high threshold evidence, the law is nevertheless nullified when racism served a “significant motivating factor” just as when it, say, implicitly colored the jury's review of the facts or law. Gossamer fibers of prejudice may weave with threads of legitimate considerations to form the fabric of a jury's nevertheless nullificatory verdict.

Nullification in this sense has particularly acute effects in the civil context. This is because unlike criminal jurors, whose responsibility is generally limited to determining a defendant's guilt or lack thereof, civil jurors are often called upon to determine not only liability--which often involves construction of the applicable law itself, such as the concept of “reasonability” within negligence--but also to calculate the appropriate damages. The broad discretion involved in completing these tasks often invites jurors to draw lawfully upon factors such as the community's sense of reasonability but at the same time liberates them to slip into biased and unlawful--that is, nullificatory--reasoning. Empirical studies show that in those instances in which jurors enjoy greater discretion in reaching their verdict, they routinely draw upon racial and other biases in calculating and awarding damages. So while a civil jury's award may withstand post-verdict review, the seemingly reasonable verdict may still be woven in part or in whole from nullificatory cloth. In this way, far from being a relic of a bygone era, as presented here civil jury nullification remains a substantial part of the civil justice system.

Jury nullification, then, is not all or nothing. It is a nuanced act by which jurors inject into their decision-making extralegal factors that fall beyond their lawful discretion. The factors that might be considered extralegal are not always clear, and they necessarily change over time and context based on the prevailing legal paradigm, social norms, and the specifics of the jury's legal charge. If a jury intentionally places “too much” weight on a prohibited factor so as to result in a verdict clearly out of line with the law's dictates, the jury might be said to have nullified the law in the traditional sense. But our conception of nullification must not be so blinkered. Recognizing jurors' regular and at times subtle unlawfulness expands our understanding and better captures how the modern jury continues to exert itself as an integral component of the constitutional body. And because jurors, by human nature, will always consider some combination of permissible and impermissible factors in deliberating and reaching a verdict, nullification emerges not as a binary construct but instead as a spectrum upon which all jury verdicts--civil and criminal--can be understood.

In advancing this conception, the Article proceeds as follows. Part II canvasses the history and literature on the traditional understanding of jury nullification. It recounts that not merely fact-finding but also law-finding was central to the jury's role in the United States up until the mid-nineteenth century, at which point law-finding was gradually removed. It uses this historical review to present the competing traditional understandings of jury nullification as at once both democratic and unlawful. Next, Part III demonstrates how procedures developed over the course of the twentieth century to control the jury and ultimately outmode the traditional understanding of nullification. It stresses the role played by judges in curbing and correcting presumably nullificatory jury verdicts. Nullification, then, as that term has been traditionally understood, no longer exists outside of the jury's decision to acquit a criminal defendant. It concludes that jury nullification requires conceptual resuscitation, specifically as a spectrum.

Part IV draws the contours of the proposed nullification spectrum. It argues that extralegal considerations exert greater or lesser influence over all jury verdicts and that it is in weighing their influence--rather than the verdict itself--that nullification is best conceptualized. Critically, it stresses that nullification is distinct from discretion. Jury discretion involves jurors considering factors explicitly or implicitly permitted by the law, whereas nullification involves considerations that fall outside the bounds of that discretion. Finally, Part V considers the implications of this spectrum, painting nullification as both a regular and unlawful act. It emphasizes that even seemingly reasonable verdicts may be no less nullificatory, surreptitiously undercutting the law in both the civil and criminal contexts. The Article concludes that viewing nullification as a spectrum reveals a more complete picture of the jury as a modern rather than antiquated institution, helping us better understand how the jury continues to exert influence over the administration of justice and the substantive development of law.

[. . .]

This Article has argued that nullification as traditionally understood has become an outmoded concept. Where at one time the jury was permitted to draw upon its internal notions of justice and issue verdicts against the direction of the law, shifts in legal paradigms and related procedural devices have dramatically limited this authority. Today, at least formally, the jury's role is merely to apply the law to the facts without appeal to communitarian notions beyond the law's dictates. And where it appears that the jury illegitimately expanded its authority and issued a verdict contrary to the law, in almost every instance the judge is permitted to “correct” that outcome. The jury's power to nullify, as traditionally understood, is thus limited to those instances in which it chooses to acquit a criminal defendant that it believes to be guilty.

A new conceptualization of jury nullification should account for how juror nullification operates today within the institution's remaining province. By shifting the focus away from specific outcomes, and instead toward scrutinizing the foundation of those decisions, nullification is illuminated not as a single act but a spectrum of extralegal considerations. Such unlawfulness may exert greater or lesser influence over the final outcome, regardless of whether that influence is perceptible in the verdict itself. And, as we have seen, the procedures meant to control the jury's power are imperfect. Nullificatory factors regularly invade the jury's deliberations and motivate verdicts. In fact, it may be that by winnowing the type of cases that juries decide down to only those in which there is some amount of uncertainty as to law and fact (either procedurally or through settlements) that nullification is not a rare occurrence but instead the norm. Notions of mercy and justice, just like notions of racism and bigotry, are not eradicated by procedural tools and are unlikely to be so long as the jury remains an independent actor.

Approaching nullification as a spectrum, then, does not “solve” the “problem” of jurors drawing upon extralegal considerations. To the contrary, it complicates it. It suggests that for those who long for a more disciplined and thoughtful decision-making body, a more difficult task awaits. If we wish to eradicate those invidious factors that regularly undermine the law, we cannot rely on judicial procedures alone. Rather, we must look inward. As Edson Sunderland warned over a hundred years ago: “Juries cannot be permitted to exercise blind and unreasoning power to oppress litigants. They must conduct themselves as sensible and reasonable men. They cannot be suffered to base verdicts on caprice, conjecture, passion or prejudice.” Sure. But if we wish for our jurors to be sensible and reasonable, we must strive to achieve a society of sensible and reasonable persons. For better or for worse, as a democratic institution, the jury and its verdicts will always reflect the biases of the individuals that comprise it.

Associate Professor of Law, Southwestern Law School.

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