Jury, pt.3. Jury Nullification: legal and cultural perspective.

Jury, pt. 3
Jury Nullification: legal and cultural perspective.

Since the presence of the jury is one of the main differences between the Italian and the U.S. legal system (if not the most evident distinction between a civil and a common law system), it requires more then only one post. Plus, in one of the previous posts (Jury pt.2), we left with the promise of analyzing this particular power of the jury: the nullification.

First of all, what is it?

According to quite every legal dictionary you will look up, the jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged.The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding.

The american jury draws its power of nullifications form a series of rights, such as rendering a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment's Double Jeopardy clause, which prohibits the appeal of an acquittal, and the fact that jurors can never be punished for the verdict they return.

Jury nullification is most often, although rarely, exercised in criminal trials but technically is applicable to civil trials as well, where it is subject to civil procedural remedies such as Judgment not withstanding the verdict.

As many of you may have noticed, this power implies that the jury can decide about the application of the law, a tasks usually demanded to the judge (for a fast recap, see Jury pt.1). Indeed we can say that, when pronouncing a nullification, the jury de facto introduces its own interpretation of the law and/or disregards the law entirely in reaching a verdict. Which is a strong exception to the general division of power between judges (the ones applying the law) and jurors (triers of fact).

To better understand this particular power (indeed the most widely accepted understanding of jury nullification by the courts is one that acknowledges the power but not the right of a juror or jury to nullify the law) it may come in handy brushing up on some historical background.

Jury nullification dates back to the early U.S. history, when the colonists struggle to fashion a legal system applicable to them. Colonists lived under what they deemed an undemocratic, tyrannical government. The jury became a shield, where colonists could be judged by members of their own communities, and it was considered their only means for democratic expression. Second, the entire premise of democracy, in both pre- and post-independence days, demanded popular control of all facets of government. There was also a practical side to granting juries such unyielding control of trials: early colonial judges were essentially laymen selected from among their peers, and they often knew no more law than did the jurors (legal dictionary).

Once the U.S. established their own independent form of government, the will of people became expressed through democratic election and the enactment of their own laws. Nullifying the law would so represent a frustration of the popular will and the issue became essentially moot.

Its practice has reappeared whenever the government has tried to enforce unpopular or morally repugnant laws; historical examples include the Alien and Seditions Acts (http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts), the Fugitive Slaves Acts (http://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850), during Prohibition or the Vietnam War.

Notwithstanding a judiciary that denied jurors the right to nullify, over the years, jurors have continued to use their power to do so. The power is most often wielded when jurors believe that an acquittal is justified for reasons that the law does not officially recognize.

It is worthy to underline that, due to the Fifth Amendment's Double Jeopardy clause (which prohibits the appeal of an acquittal), jury nullification can be a defense strategy (Clay S. Conrad (1995), Jury Nullification as a Defense Strategy).

As always, the end of a post set the topic for the next one.

P.S. 

Of course, given the specific nature of this topic (the jury), there is no particular comparative observation to add to those we already made when we first analyze the institution of the jury (Jury pt.1).