Jury nullification within the rule of law (original) (raw)
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The Rule of Law and Jury Trials
Stance: an international undergraduate philosophy journal
In The Rule of Law in the Real World, Paul Gowder presents a new account of the rule of law based on three conditions: publicity, regularity, and generality. In this essay, I examine two closely related questions that are prompted by Gowder’s version of the rule of law. First, does the rule of law require citizens to follow the law? Second, what does Gowder’s account mean for jury nullification? I argue that the rule of law does not require citizens to follow the law, but it does prohibit jury nullification. A discussion of some moral implications and objections follow.
The Rise of Directed Verdict: Jury Power in Civil Cases Before the Federal Rules of 1938
2013
Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth centuries. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes were the rise of directed verdict procedure and the related judgment notwithstanding the verdict. These mechanisms allowed a judge to give a binding instruction to a jury, or to enter a judgment contrary to the jury's decision. This Study reveals that railroads revolutionized the law of jury control. Changes in directed verdict were part of a larger program of jury reform beginning in the mid-nineteenth century in England, the states, and the federal government. Because of growing numbers of complicated personal injury suits against railroads, and because of perceived jury bias in those cases, many judges sought to control juries more efficiently. Directed verdicts began to replace new trials. Opposition arose, but the overall trend was toward greater judicial control of juries. The striking changes in jury practice described in this Article suggest difficulties in maintaining a consistent jury trial right by constitutional requirement.
Yale LJ, 2001
Bushell's Case, 24 Eng. Rep. 1006 (C.P. 1670), established that jurors may not be fined or imprisoned for returning a verdict that conflicts with the judge's assessment of the evidence. Chief Justice John Vaughan's opinion did not defend jury nullification - in fact, the opinion asserted that jurors must follow the judge's directions concerning the law - but the opinion has long been recognized as a crucial resource for those who advocate nullification. Modern defenses of jury nullification that draw on Bushell's Case often point to Vaughan's argument that jurors must be permitted to form their own views because reasonable people may disagree about a witness's credibility or the reliability of the evidence. In the 1680s, however, when Bushell's Case was first being publicly debated, commentators focused primarily on Vaughan's argument that because jurors were chosen from the locality where the crime occurred, they should be presumed to have personal knowledge of the facts of the case. By the late seventeenth century, however, this premise was untenable. This article considers why the "personal knowledge" argument might have been so appealing, despite its implausibility, and examines the process by which that justification for jury nullification gave way to the "independent assessment" argument. In the course of the movement from the first justification to the second one, Bushell's Case began to viewed as supporting the jury's right to find both fact and law - a right that Vaughan had never defended.
Arguments: Jury lawfinding and constitutional review in 1840s New Hampshire
Ian Ward and Gary Watt (eds), A Cultural History of Law, vol 5: A Cultural History of Law in the Age of Reform, 2019
The Age of Reform 1820-1920 witnessed a significant move from popular constitutionalism, rooted in traditions of participatory democracy, to a much more exclusive, judge-centric, view of the law (Kramer 2004). This chapter explores this general development through detailed consideration of the particular case of Pierce v State (1843) 13 NH 536. The importance of the Pierce case, which concerned a conflict between the respective powers of judge and jury, has long been acknowledged. In the Supreme Court's 1895 rejection of jury lawfinding, it was one of the most influential cases cited by Harlan J; and in more recent academic literature its final appellate judgments have been described as "two of the most well-reasoned discussions opposing the jury's right to judge the law" (Conrad 1998: 69). But despite its foundational status within the judicial rejection of the jury lawfinding argument, little is known about the way the judgments were formed. The present chapter relies on contemporary newspaper reports and pamphlets to fills this gap in the cultural history of the case. In so doing, we will shed light on the popular cultural reception of constitutional developments in the Age of Reform. The trial jury in America started the nineteenth century as an essential republican institution, with Thomas Jefferson having declared in 1789 that the jury was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution" (Jefferson 1853: 71). As the century continued, the judiciary increasingly came to view itself as a better, more legitimate constitutional anchor; and by 1895 the US Supreme Court, finally willing to sanction this significant reform of judge-jury relations, held that jurors should not be alerted to their power to find the law independently of the bench (Sparf 1895; Abramson 1994: 67-95). As several legal historians have shown, this transformation was (unsurprisingly) controversial, with some mid-century judges holding to the jury-centric view of the law, while others held to the now more familiar judge-centric vision (Alschuler and Deiss 1994: 902-921). Academic commentators exploring the shift to a judge-centric view of adjudication have often suggested that the most important transformation concerned the 2 development of the American legal profession and, with it, American legal science. This view contrasts those "who were hostile to lawyers and to legal doctrine" to those "who understood that the intrinsic complexity of human affairs begets unavoidable complexity in legal rules and procedures. With legal complexity comes legal professionalism" (Langbein 1993: 566). Pierce v State offers an early example of an American judge pursuing the judge-centric vision of jury trial, in which the jury is expected to simply following the legal directions coming from the Bench. This case also allows us to see the development of a single set of arguments in various settings, for here we have a trial, a public debate, and then an appeal, all three of which centred around a dispute between the same two sets of people: the State's Chief Justice, and counsel for the defence. Drawing on pamphlets held at the Library of Congress, this chapter explores the three stages of the argument culminating in the appellate decision in Pierce, and finds that the sophistication of the Chief Justice's appellate judgment is vastly different to his more direct, and far less doctrinal, arguments in the debate's first two phases. Not only had the newspaper reports and pamphlets helped publicise the debate, but by giving the protagonists the opportunity to publicly air their views multiple times they had also helped to shape it. This is ironic, given that the Chief Justice's argument was largely based around a rejection of the claim that public debate might form a legitimate part of legal adjudication. The media theorist James Carey once suggested there were two basic ways of conceptualising communication: that it is either about the "transmission" of information or the "ritual" enactment of a shared view of the world (Carey 1989). Under a "transmission" view of communication, Carey argued, newspapers are simply concerned with the spread of knowledge, and analysing them means questioning "the[ir] effects … on audiences: news as enlightening or obscuring reality, as changing or hardening attitudes, as breeding credibility or doubt" (Carey 1989: 20). Understood as ritual, on the other hand, the act of reading a newspaper becomes "a situation in which nothing new is learned but in which a particular view of the world is confirmed" (Carey 1989: 20). The public debate between the Pierces' trial and their unsuccessful appeal included a meeting of local people, several letters in the
Judges and Juries: Separate Moments in the Same Phenomenon
Law and Inequality, 1986
Special thanks to Frances Nash for her comments and editorial suggestions in turning this manuscript into something resembling English. To think we were all educated at the same university. We would also like to thank those colleagues and teachers cited in the text for their comments and suggestions.