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Unpublished Paper
The Contradictory Stance on Jury Nullification
ExpressO (2012)
  • Kenneth J Duvall
Arguments about jury nullification in both courts and academia proceed under the assumption that either proponents and opponents of nullification could decisively carry the day. But as current Supreme Court law stands, nullification is at once prohibited and protected. This Article shines a light on the uneasy, confusing compromise in the doctrine, and finds that the two ways out of the dilemma—fully embracing nullification, or rejecting it—are equally taboo to the American legal mind. In Part I, this Article briefly explains the contested history of nullification. In Part II, it examines modern courts’ intermittent recognition of nullification. Part III then determines that nullification is, without a doubt, officially illegal, despite the raging normative controversy. Finally, Part IV grapples with the revelation that the prohibition on criminal jury control mechanisms, e.g., directed verdicts, serves only to protect the illegal act of nullification. Part V concludes be examining the ways forward for this muddled area of the law. If the Supreme Court was sincere in condemning nullification, the Court would stamp out the practice by allowing civil jury control devices in criminal proceedings; conversely, if the Court determined to honestly sanction nullification, it would justify the currently incoherent ban on criminal jury controls. However, based on my examination of the Court’s current make-up and the entrenched positions on both sides, the Court will not bring itself to either encroach on the jury or openly endorse nullification. Instead, the contradiction at the heart of this issue will continue to exist as a frozen conflict, awaiting a thaw that is unlikely to come.
  • jury nullification,
  • directed verdicts,
  • jury instructions,
  • Sixth Amendment,
  • Seventh Amendment,
  • Double Jeopardy
Publication Date
August 11, 2012
Citation Information
Kenneth J Duvall. "The Contradictory Stance on Jury Nullification" ExpressO (2012)
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