Is there a justification for jury nullification? Indeed there is, though on a far more limited and abstract basis than naive 'informed juror types' would suggest. I discussed the applicable rationale in a lecture I have years ago to a group of prosecutors. The subject was the application and range of Penal Code Section 499c, which applies to theft of trade secrets. But my audience found the remarks about jury nullification far more interesting.
I began the lecture by posing a fundamental question, applicable at least to criminal law. Do the statutes and decisional authority define absolutely our criminal law? Or are they attempts to map a deeper social morality, much more complex and subtle? I believe the latter is the case, and that the contours of the underlying morality are in fact infinitely complex. It is thus impossible to write an exhaustive statutory scheme for criminal law, no matter how lengthy or prolix. I am fond of mathematical analogies, and the one I used here is Euclid's ancient proof of an infinity of prime numbers. No matter how many divisors you create, a number will exist that can't be divided by any of them.
Becoming concrete, consider the law of homicide. The basic statute defines the killing of a human being as unlawful . . . unless committed in self-defense . . . except if the self-defense involved excessive force . . . or if the assailant broke off the attempt . .. . unless the assailant had a history of repeated attacks , etc., etc., etc. A similar assortment of principles, exceptions, exceptions to exceptions, and so forth, can be compiled for homicides committed in defense of others, in defense of property, for elements of mitigation, excuse, and so on. There are also excuses (heat of passion, reduced mental capacity) and various forms of mitigation, also qualified by provisos, exceptions, also extending out indefinitely with no definite term.
The point is that language is discrete and finite. The underlying values are not. No matter how long the statute or how complex the scheme, a case will arise that is not covered by them – that is, in which the result is felt or intuited in accordance with understood human and social values, but not covered by statutory language. (I made this point at the beginning of a lecture on trade secret law to underscore the infancy of criminal law in these matters. There are tens, if not hundreds, of thousands of homicide cases going back several centuries. The uncovered case, although I do believe it exists in theory, is way, way out there and unlikely ever to occur in practice. In trade ecret law, on the other hand, our analogous prime number is maybe 59, if it's that large. That point being made, the presentation then became a little more practical (and a lot less interesting.)
Thus the case for jury nullification. It would be justified on those occasions when the jury encounters that exceptional case, the one that falls through the cracks of articulated law. There are moral judgments, and even moral imperatives, that established law does not address.
But that said, let me note some limitations.
The first is the biggie. We are discussing jurEE nullifcation. There is no such thing as jurOR nullification. I am describing a fairly austere, formidable intellectual exercise, to be done in complete good faith. That's considerably different than the actual case of juror nullification, which in practice means a juror decides on his own, and without any firm grounding, that a defendant does not deserve conviction (or acquittal), and obstructs the jury process accordingly.
This crude notion of nullification, based on the raw power of a lone juror to act whimsically, actually is internally inconsistent. The juror only obtains the position of empowerment by acceptance of the social matrix and legal framework that enables him to be impaneled in judgment. A hypocrisy that profound defeats the argument utterly. It is impossible to assert that an action is perrformed in good faith when it is grounded on conscious bad faith.
But I also want to address this notion at a slightly more elevated philosophical level. Borrowing some language from existential philosophy, let me put to the proponents of this concept a fundamental question – how do you know? How can the individual be so sure of his moral ground, that he and he alone sees the flaw in a statute that has been explicitly or implicitly accepted by thousands if not millions of others? There's no one whose world views are not influenced by their own life experience and subjectivity, no matter how careful they try to be. So you're the first person who's seen the profound immorality, say, of punishing pawnbrokers for receiving stolen property? What makes you think you're the one who's right?
Alexander Pope wrote famously (in his Essay on Criticism) that:
Our judgments, like our watches, none
go just alike, yet each believes his own
In this respect, moral judgments are no different than aesthetic ones. It's been fashionable since Nuremberg to elevate the individual conscience to primacy over social consensus. I could not disagree more completely. The indivdiual conscience could belong to Hitler or Stalin. It's a truism that even less elevated criminals rationalize their acts in accordance with their own moral notions. From the subjective viewpoint of the actor, if individual conscience is supreme, there is no way to know that his or her standards are warped.
I don't want to limit the scope of this argument to criminality. Consider the frontiersman-Congressman Davy Crockett, who Walt Disney turned into a national icon among primary schoolers in the mid-50's. Davy (sic – I was a fan) lived by the motto, 'be sure you're right, then go ahead.' (James Kunen, writing 45 years ago as a 20's something Columbia graduate, said in his book, The Strawberry Statement that Davy became the godfather of the Vietnam opposition with those words. Absolutely right, in my opinion.) It's a nice motto, but Davy in the event died at the Alamo, fighting for the extension of slavery into the Southwest, and the precursor to the Mexican War, a war almost no one thought had any moral or legal basis – condemned by men as varied as the ultra-subtle Thoreau and the ultra-direct U.S. Grant (who served with distinction, but loathed the cause). So Davy might have been sure he was right, but a lot of decent folk disagreed with him. How, I wonder, would he have responded to the core question, how do you know? How can you be sure that your sympathy for this cause isn't conditioned on your own yearning for a large estate and political power in a new land? Of all the people who might provide a rational answer to that question, Davy himself, locked into his own subjectivity, is the very last.
My affection for consensus judgments is based on this notion. In the jury process at its best, the idiosyncratic weaknesses of the individual's judgment are burnished off, and a 'pure' community judgment emerges. At its best, it's a wonder.
In any case, that's the argument for jury nullification in the exceptionally rare case that falls through a crack in the statutory framework. And the case against as well.
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