Jury Nullification: Features, Bugs, and the Possibility of Granular Law

Abstract

Jury nullification is the ability of juries to acquit criminal defendants even against the apparent weight of the law and the facts. This commentary asks whether jury nullification is a “bug” or a “feature” of the American criminal trial, a question separate, for example, from whether it is good or bad. The commentary concludes, tentatively, that jury nullification, on one understanding, might be a “feature.” In that understanding, jury nullification reflects the jury’s authority, in exceptional cases, to particularize the applicable law by way of its existential engagement with a live defendant and the unique circumstances of a case. The possibility of jury nullification might therefore represent the legal system’s implicit recognition that law can have a granular as well as a global quality. This power, if it exists, is necessarily controversial, though it has analogues in religious normative systems. Its embrace would require a more complex theory of law.