Jury Nullification: An Empirical Perspective
Horowitz, Irwin A.
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Prominent jurists have suggested that it may be permissible to inform juries of their power to decide verdicts according to their conscience, regardless of the law. Juries may be informed of their power, known as jury nullification, to nullify the law either by carefully crafted instructions from the judge or by permitting the defense counsel to make a nullification argument during closing statements. This article examines these proposals in light of the latest empirical research on these issues. This article also presents a short history of jury nullification and its current status in the U.S. legal system. Current research suggests that the original notion expressed in U.S. v. Dougherty that nullification instructions would have a chaotic effect, appears to have some empirical support. Chaos means that jury verdicts may be unpredictable, determined by personal prejudices and possibly vindictive. Earlier work suggested that juries in receipt of nullification instructions will be more merciful to a morally worthy defendant than when not given such instructions. It is important to note that the bulk of the research still shows that jurors do use information about their power to nullify in a circumscribed and careful manner. However, more recent research, which directly manipulated emotionally biasing information, as opposed to factually biasing information, suggests juror verdicts may be considered to be "chaotic."