committed on Black citizens. This disturbing side of
nullification (“jury vilification”) was seen when juries
returned verdicts that reflected prejudiced or bigoted
community standards and violated the benign stan-
dard of nullification proponents that such verdicts
should be merciful rather than vindictive. In fact, one
nullification scholar notes that the difference between
vengeance and mercy is an unprincipled one and that,
while nullification may have had some legal basis in
colonial days, it is now a legal anachronism. Modern
proponents of jury power argue that the jury has both
the right and the power to judge both the defendant
and the law. It is an obvious understatement to say that
the right of the jury to nullify has more support among
legal academics than among judges.
Some legal scholars and jury activists argue that
judges and courts are actively attempting to constrain
the jury’s unfettered right to return a verdict according
to its own views. One scholar points to the antinulli-
fication section appended to the California Jury
Instructions. Proponents want judges to inform jurors
directly that they can exercise their right to nullify.
Indeed, much of the empirical research on nullification
has focused on the effects of providing just such an
instruction to the jury. One practicing attorney elo-
quently argues that defense attorneys should aggres-
sively seek nullification in cases where their technically
guilty clients are morally blameless. Proponents
believe that nullifying juries inform the legal process
and militate against unjust laws. Furthermore, the
pronullification argument contends that research
shows that laypeople are more sophisticated than the
courts assume and that anarchy emanates not from jury
disobedience but when laws are in conflict with com-
munity sentiment.Jury Research and
Nullification Instructions
The modern debate as to the limits of the jury’s power
was most clearly limned in United States v. Dougherty
(1973), in which a 2:1 majority rejected a defense
request that the nullification instruction be permit-
ted in this trial of antiwar activists. Judge Harold
Leventhal, writing for the majority of the D.C. Court
of Appeals, while noting that the pages of history
abound with shining examples of juries that refused to
convict virtuous defendants, nevertheless suggested
that if juries were given explicit nullification instruc-
tions, their behavior would be anarchic. Such aninstruction would result in “chaos” because the ver-
dict would not be predicated on the law. Furthermore,
an explicit declaration of the jury’s power to nullify
would, in Judge Leventhal’s view, require the jury to
“fashion” the law. Judge Leventhal argued that with-
out explicit knowledge of nullification, juries would
use their implicit power more carefully and judi-
ciously, not chaotically.
A number of researchers have explored the impact
on verdicts of jury instructions that include a nullifica-
tion clause. These are laboratory-based studies of vary-
ing levels of similarity to legal processes. Results
suggest that juries that received nullification instruc-
tions spent less time deliberating the evidence and
focused more on defendant characteristics, attributions,
and personal experiences. Jurors in receipt of nullifica-
tion instructions were more likely to take account of the
extralegal factors of race, gender, and social class. One
researcher reported that mock jurors were significantly
less likely to return a guilty verdict for an individual
accused of murder in a context where the act might be
characterized as euthanasia. When in receipt of nullifi-
cation instructions and when the act was committed out
of compassion (such as disconnecting a respirator or
increasing a morphine drip), the jury verdicts were the
same as those returned by juries given standard instruc-
tions. Note that much may depend on the nature of the
nullification instructions, which are usually appended
to the standard instructions. Thus, what we see in many
studies is a fairly circumscribed use of jury power, as
Judge Leventhal had suggested.
However, researchers have reexamined this “chaos”
hypothesis by examining situations that evoke jurors’
emotional biases. These biases are evoked by informa-
tion that strongly affects jurors’ emotions (e.g., grue-
some crime-scene photos) but that implies nothing
directly about the guilt or innocence of the defendant.
In several experiments, researchers have found that nul-
lification instructions can indeed change and intensify
jurors’ responses to such emotionally biasing informa-
tion. For example, in one study, information about the
victim of a crime affected jurors’ emotions so that they
were much more upset at the alleged murder of an
upright, admirable person than that of a less-worthy cit-
izen. When mock jurors were given standard jury
instructions (which tell them that they must follow the
law as it is explained by the trial judge), these emo-
tional reactions did not affect their verdicts.
In another research example, mock jurors heard
one of two versions of a trial in which a physician414 ———Jury NullificationJ-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 414