The Disobedient Jury: Why Lawmakers Should Codify Jury Nullification

102 Cornell Law Review 1401 (2017)One primary goal of criminal law is to produce justice. In order to obtain justice, the citizens of a republic delegate power to representatives, who then create a system of rules and punishment that ensure a predictable and fair scheme of justice. Although the citizens willingly give over this power to receive the benefits of a structured society, this exchange does not mean that the democratic government must function unchecked by its people. Within the criminal justice system, the jury serves as one protection against government overreach and as a safeguard to ensure that true justice is done. In order to produce that justice, sometimes the jury must abandon the strict rules of the legal system. This behavior is referred to as jury nullification and generally occurs when jurors vote to acquit a defendant despite believing that the defendant is guilty under the law and that the prosecution has proved its case beyond a reasonable doubt. Because jury deliberations are secret, jurors have the inescapable power to nullify. Nevertheless, in Sparf v. United States, the Supreme Court held that there is no right to jury nullification and, thus, a judge does not have to instruct the jury about their ability to judge the law.