Document Type

Working Paper

Publication Date

10-10-2009

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

This article explores the controversial issue of jury nullification by reconceptualizing nullification through the lens of the Supreme Court's recent decisions beginning with Apprendi v New Jersey Apprendi's embrace of the jury's historical powers "” require a rejection of the formalized and static paradigm in favor of a more fluid vision of the law Despite extensive scholarship surrounding Apprendi an innovative though admittedly counterintuitive reading of the case line has been overlooked This reading draws on Apprendi's embrace of a vision of the law constructed and completed through jury interpretation and verdict Interpreted in this way the Apprendi case line redefines the nature of the law itself and carries implications for the larger democracyImplicit in Apprendi's reconception of the law is a radical reassessment of the longrunning debate over jury nullification Properly understood jury nullification is not as an act of extralegal rebellion but rather the moment when citizen jurors lend meaning to the law through their interpretation Without this opportunity for jurors to consider the value and applicability of the law to a particular defendant the law is unable to account for shifting communal values becoming overly rigid and perhaps meaningless to the community it seeks to regulate Juror nullification then is an opportunity for the expansion of democratic principles beyond the formalized government I conclude that the democracy and indeed the underlying goals of the criminal justice system are best served when criminal processes allow forums for dissenting perspectives and when juries are allowed to assess both the legal and factual bases of guilt

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