Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification

Iowa Law Review

Volumn 86, Issue 2, 2001, Pages 467-530

  Pettys, Todd E ^a  

^a NONE

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EID: 0035583008     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (341)

1. 519 U.S. 172 (1997).
2. Id. at 174-75; see 18 U.S.C. § 922(g) (1994) (stating that it is unlawful for persons convicted of "a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition").
3. Old Chief, 519 U.S. at 175-77.
4. Id. at 174. The Court's ruling resolved a split among the federal appellate courts. See id. at 177-78 (citing cases).
5. Id. at 186-87. Citing the general principle that criminal defendants may not preclude the admission of evidence by stipulating to discrete elements of crimes, a number of courts have declined to extend Old Chief's holding to matters other than proof of convicted-felon status. See, e.g., United States v. Owens, 159 F.3d 221, 225-26 (6th Cir. 1998) (holding that testimony concerning the basis of a witness's bias against the defendant was properly admitted, notwithstanding the defendant's offer to stipulate that the witness was biased against him); United States v. Salameh, 152 F.3d 88, 122-23 (2d Cir. 1998) (holding that testimony and photographs relating to the injuries and deaths caused by the 1993 bombing of New York's World Trade Center were properly admitted, notwithstanding the defendants' offer to stipulate that persons had been injured and killed), cert. denied sub nom. Abouhalima v. United States, 525 U.S. 1112 (1999); United States v. Dunford, 148 F.3d 385, 394-96 (4th Cir. 1998) (holding that evidence of the defendant's use of controlled substances was properly admitted in a prosecution for possession of a weapon by a user of controlled substances, notwithstanding the defendant's offer to stipulate that he used illegal drugs); United States v. Grimmond, 137 F.3d 823, 832-33 & n.14 (4th Cir.) (stating that the Court in Old Chief did not intend its ruling to apply to stipulations concerning the possession of a firearm), cert. denied, 525 U.S. 850 (1998). See generally DONALD S. VOORHEES, MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS 235 (Deidre Golash & Bruce Clarke eds., 1990) ("Generally, the government is not bound by a defendant's offer to stipulate to an element of a crime. The government is free to present to the jury evidence to establish a complete picture of the events constituting the charged crime.").
6. See Old Chief, 519 U.S. at 199-200 (O'Connor, J., dissenting); cf. Estelle v. McGuire, 502 U.S. 62, 69-70 (1991) ("[T]he prosecution's burden to prove every element of the crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense."). Chief Justice Rehnquist, Justice Scalia, and Justice Thomas joined Justice O'Connor's dissenting opinion in Old Chief.
7. See Old Chief, 519 U.S. at 187 (internal quotations omitted).
8. Several commentators have acknowledged that Old Chief may have sweeping consequences for the law of evidentiary relevance, but none of them has explored the nature of those consequences in detail. See, e.g., ROGER C. PARK ET AL., EVIDENCE LAW: A STUDENT'S GUIDE TO THE LAW OF EVIDENCE AS APPLIED IN AMERICAN TRIALS 128 (1998) (stating that Old Chief articulated "a principle that, if carried to its logical extreme, would revolutionize the law of relevancy"); James J. Duane, "Screw Your Courage to the Sticking-Place": The Roles of Evidence, Stipulations, and Jury Instructions in Criminal Verdicts, 49 HASTINGS L.J. 463, 469 (1998) (suggesting that fully implementing the principles declared in Old Chief "would mark . . . a profound break with our traditional conception of the parameters of a criminal trial" and might bring about a "radical shift in our collective conception of the criminal trial process"); Graham B. Strong, The Lawyer's Left Hand: Nonanalytical Thought in the Practice of Law, 69 U. COLO. L. REV. 759, 788 n.140 (1998) (stating that Old Chief "endorsed a concept of relevance . . . that appears to go well beyond a narrow, 'rationalist' model of relevance and to incorporate what may be termed 'aesthetic' considerations"). Nor have commentators explored the relationship between Old Chief's view of evidentiary relevance and the rules relating to jury nullification. This Article attempts to fill those gaps.
9. Several commentators have acknowledged that Old Chief may have sweeping consequences for the law of evidentiary relevance, but none of them has explored the nature of those consequences in detail. See, e.g., ROGER C. PARK ET AL., EVIDENCE LAW: A STUDENT'S GUIDE TO THE LAW OF EVIDENCE AS APPLIED IN AMERICAN TRIALS 128 (1998) (stating that Old Chief articulated "a principle that, if carried to its logical extreme, would revolutionize the law of relevancy"); James J. Duane, "Screw Your Courage to the Sticking-Place": The Roles of Evidence, Stipulations, and Jury Instructions in Criminal Verdicts, 49 HASTINGS L.J. 463, 469 (1998) (suggesting that fully implementing the principles declared in Old Chief "would mark . . . a profound break with our traditional conception of the parameters of a criminal trial" and might bring about a "radical shift in our collective conception of the criminal trial process"); Graham B. Strong, The Lawyer's Left Hand: Nonanalytical Thought in the Practice of Law, 69 U. COLO. L. REV. 759, 788 n.140 (1998) (stating that Old Chief "endorsed a concept of relevance . . . that appears to go well beyond a narrow, 'rationalist' model of relevance and to incorporate what may be termed 'aesthetic' considerations"). Nor have commentators explored the relationship between Old Chief's view of evidentiary relevance and the rules relating to jury nullification. This Article attempts to fill those gaps.
10. Several commentators have acknowledged that Old Chief may have sweeping consequences for the law of evidentiary relevance, but none of them has explored the nature of those consequences in detail. See, e.g., ROGER C. PARK ET AL., EVIDENCE LAW: A STUDENT'S GUIDE TO THE LAW OF EVIDENCE AS APPLIED IN AMERICAN TRIALS 128 (1998) (stating that Old Chief articulated "a principle that, if carried to its logical extreme, would revolutionize the law of relevancy"); James J. Duane, "Screw Your Courage to the Sticking-Place": The Roles of Evidence, Stipulations, and Jury Instructions in Criminal Verdicts, 49 HASTINGS L.J. 463, 469 (1998) (suggesting that fully implementing the principles declared in Old Chief "would mark . . . a profound break with our traditional conception of the parameters of a criminal trial" and might bring about a "radical shift in our collective conception of the criminal trial process"); Graham B. Strong, The Lawyer's Left Hand: Nonanalytical Thought in the Practice of Law, 69 U. COLO. L. REV. 759, 788 n.140 (1998) (stating that Old Chief "endorsed a concept of relevance . . . that appears to go well beyond a narrow, 'rationalist' model of relevance and to incorporate what may be termed 'aesthetic' considerations"). Nor have commentators explored the relationship between Old Chief's view of evidentiary relevance and the rules relating to jury nullification. This Article attempts to fill those gaps.
11. FED. R. EVID. 401.
12. For a more detailed discussion of evidentiary relevance, see infra notes 29-44 and accompanying text.
13. See FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.").
14. See id.
15. Old Chief v. United States, 519 U.S. 172, 187-88 (1997); see infra notes 59-64 and accompanying text.
16. Old Chief, 519 U.S. at 189.
17. Id. at 187.
18. Id. at 188-89; see infra notes 65-67 and accompanying text. The difficulties associated with ascertaining the precise nature of jurors' expectations are discussed infra note 114.
19. Old Chief, 519 U.S. at 188-89.
20. See, e.g., PAUL BERGMAN, TRIAL ADVOCACY IN A NUTSHELL 11 (2d ed. 1989) ("[Y]our chances of success at trial often depend on the persuasiveness of your overall story."); CELIA W. CHILDRESS, PERSUASIVE DELIVERY IN THE COURTROOM 606-08 (1995) (discussing the importance and purposes of presenting one's case in the form of a narrative); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 2 (2d ed. 1997) ("An advocate's task when preparing for trial is to conceive of and structure a true story - comprising only admissible evidence and containing all of the elements of a claim or defense - that is most likely to be believed and adopted by the trier of fact."); see also W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM 4 (1981) ("The significance of stories in the trial justice process can be summarized as follows: in order to understand, take part in, and communicate about criminal trials, people transform the evidence introduced in trials into stories about the alleged criminal activities."); REID HASTIE ET AL., INSIDE THE JURY 22-23 (1983) (discussing the "story model" of juror decision-making); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 520-33 (1991) (stating that a jury determines its verdict, in part, by constructing the story that best accounts for the evidence presented by the parties, the jurors' general knowledge about the issues raised during the trial, and the jurors' expectations concerning the elements of a complete story).
21. See, e.g., PAUL BERGMAN, TRIAL ADVOCACY IN A NUTSHELL 11 (2d ed. 1989) ("[Y]our chances of success at trial often depend on the persuasiveness of your overall story."); CELIA W. CHILDRESS, PERSUASIVE DELIVERY IN THE COURTROOM 606-08 (1995) (discussing the importance and purposes of presenting one's case in the form of a narrative); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 2 (2d ed. 1997) ("An advocate's task when preparing for trial is to conceive of and structure a true story - comprising only admissible evidence and containing all of the elements of a claim or defense - that is most likely to be believed and adopted by the trier of fact."); see also W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM 4 (1981) ("The significance of stories in the trial justice process can be summarized as follows: in order to understand, take part in, and communicate about criminal trials, people transform the evidence introduced in trials into stories about the alleged criminal activities."); REID HASTIE ET AL., INSIDE THE JURY 22-23 (1983) (discussing the "story model" of juror decision-making); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 520-33 (1991) (stating that a jury determines its verdict, in part, by constructing the story that best accounts for the evidence presented by the parties, the jurors' general knowledge about the issues raised during the trial, and the jurors' expectations concerning the elements of a complete story).
22. See, e.g., PAUL BERGMAN, TRIAL ADVOCACY IN A NUTSHELL 11 (2d ed. 1989) ("[Y]our chances of success at trial often depend on the persuasiveness of your overall story."); CELIA W. CHILDRESS, PERSUASIVE DELIVERY IN THE COURTROOM 606-08 (1995) (discussing the importance and purposes of presenting one's case in the form of a narrative); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 2 (2d ed. 1997) ("An advocate's task when preparing for trial is to conceive of and structure a true story - comprising only admissible evidence and containing all of the elements of a claim or defense - that is most likely to be believed and adopted by the trier of fact."); see also W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM 4 (1981) ("The significance of stories in the trial justice process can be summarized as follows: in order to understand, take part in, and communicate about criminal trials, people transform the evidence introduced in trials into stories about the alleged criminal activities."); REID HASTIE ET AL., INSIDE THE JURY 22-23 (1983) (discussing the "story model" of juror decision-making); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 520-33 (1991) (stating that a jury determines its verdict, in part, by constructing the story that best accounts for the evidence presented by the parties, the jurors' general knowledge about the issues raised during the trial, and the jurors' expectations concerning the elements of a complete story).
23. See, e.g., PAUL BERGMAN, TRIAL ADVOCACY IN A NUTSHELL 11 (2d ed. 1989) ("[Y]our chances of success at trial often depend on the persuasiveness of your overall story."); CELIA W. CHILDRESS, PERSUASIVE DELIVERY IN THE COURTROOM 606-08 (1995) (discussing the importance and purposes of presenting one's case in the form of a narrative); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 2 (2d ed. 1997) ("An advocate's task when preparing for trial is to conceive of and structure a true story - comprising only admissible evidence and containing all of the elements of a claim or defense - that is most likely to be believed and adopted by the trier of fact."); see also W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM 4 (1981) ("The significance of stories in the trial justice process can be summarized as follows: in order to understand, take part in, and communicate about criminal trials, people transform the evidence introduced in trials into stories about the alleged criminal activities."); REID HASTIE ET AL., INSIDE THE JURY 22-23 (1983) (discussing the "story model" of juror decision-making); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 520-33 (1991) (stating that a jury determines its verdict, in part, by constructing the story that best accounts for the evidence presented by the parties, the jurors' general knowledge about the issues raised during the trial, and the jurors' expectations concerning the elements of a complete story).
24. See, e.g., PAUL BERGMAN, TRIAL ADVOCACY IN A NUTSHELL 11 (2d ed. 1989) ("[Y]our chances of success at trial often depend on the persuasiveness of your overall story."); CELIA W. CHILDRESS, PERSUASIVE DELIVERY IN THE COURTROOM 606-08 (1995) (discussing the importance and purposes of presenting one's case in the form of a narrative); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 2 (2d ed. 1997) ("An advocate's task when preparing for trial is to conceive of and structure a true story - comprising only admissible evidence and containing all of the elements of a claim or defense - that is most likely to be believed and adopted by the trier of fact."); see also W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM 4 (1981) ("The significance of stories in the trial justice process can be summarized as follows: in order to understand, take part in, and communicate about criminal trials, people transform the evidence introduced in trials into stories about the alleged criminal activities."); REID HASTIE ET AL., INSIDE THE JURY 22-23 (1983) (discussing the "story model" of juror decision-making); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 520-33 (1991) (stating that a jury determines its verdict, in part, by constructing the story that best accounts for the evidence presented by the parties, the jurors' general knowledge about the issues raised during the trial, and the jurors' expectations concerning the elements of a complete story).
25. See, e.g., PAUL BERGMAN, TRIAL ADVOCACY IN A NUTSHELL 11 (2d ed. 1989) ("[Y]our chances of success at trial often depend on the persuasiveness of your overall story."); CELIA W. CHILDRESS, PERSUASIVE DELIVERY IN THE COURTROOM 606-08 (1995) (discussing the importance and purposes of presenting one's case in the form of a narrative); STEVEN LUBET, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 2 (2d ed. 1997) ("An advocate's task when preparing for trial is to conceive of and structure a true story - comprising only admissible evidence and containing all of the elements of a claim or defense - that is most likely to be believed and adopted by the trier of fact."); see also W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM 4 (1981) ("The significance of stories in the trial justice process can be summarized as follows: in order to understand, take part in, and communicate about criminal trials, people transform the evidence introduced in trials into stories about the alleged criminal activities."); REID HASTIE ET AL., INSIDE THE JURY 22-23 (1983) (discussing the "story model" of juror decision-making); Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 520-33 (1991) (stating that a jury determines its verdict, in part, by constructing the story that best accounts for the evidence presented by the parties, the jurors' general knowledge about the issues raised during the trial, and the jurors' expectations concerning the elements of a complete story).
26. See infra notes 29-51 and accompanying text.
27. See infra notes 52-85 and accompanying text. Like the Court in Old Chief itself, this Article will focus on federal law, particularly as it is applied in criminal proceedings.
28. See infra notes 86-102 and accompanying text.
29. See infra notes 103-08 and accompanying text.
30. See infra notes 109-39 and accompanying text.
31. See infra notes 132-39 and accompanying text.
32. See infra notes 140-312 and accompanying text.
33. See infra notes 201-44 and accompanying text.
34. See infra notes 248-93 and accompanying text.
35. See infra notes 294-312 and accompanying text.
36. 1 KENNETH S. BROUN ET AL., MCCORMICK ON EVIDENCE 637 (John W. Strong ed., 5th ed. 1999).
37. Id.; PARK, supra note 8, at 125. To be "at issue" in a case, a proposition need not be disputed. See FED. R. EVID. 401 advisory committee's note.
38. See 1 JACK B. WEINSTEIN ET AL., WEINSTEIN'S EVIDENCE ¶ 401 [03] (1995); see also 1 CLIFFORD S. FISHMAN, JONES ON EVIDENCE: CIVIL AND CRIMINAL § 1:4 (7th ed. 1992) (stating that "ultimately the evidence must be assessed against the elements of the cause of action, crime, or defenses at issue in the trial").
39. See 1 JACK B. WEINSTEIN ET AL., WEINSTEIN'S EVIDENCE ¶ 401 [03] (1995); see also 1 CLIFFORD S. FISHMAN, JONES ON EVIDENCE: CIVIL AND CRIMINAL § 1:4 (7th ed. 1992) (stating that "ultimately the evidence must be assessed against the elements of the cause of action, crime, or defenses at issue in the trial").
40. See RESTATEMENT (SECOND) OF TORTS §§ 281, 430 (1965).
41. See id. §§ 496A, 496E.
42. See BROUN, supra note 29, at 637-38 ("In addition to evidence that bears directly on the issues . . . the parties may question the credibility of the witnesses and, within limits, produce evidence assailing and supporting their credibility."); see also FED. R. EVID. 608(a) (stating that a witness's credibility may be attacked by evidence "in the form of opinion or reputation [concerning the witness's] character for truthfulness or untruthfulness").
43. For practical purposes, courts and attorneys do not always sharply distinguish between material and immaterial evidence. Background evidence is often admitted, for example, when it will help the fact-finder understand or evaluate other evidence or the issues in the case. See FED. R. EVID. 401 advisory committee's note ("Evidence which is essentially background in nature . . . is universally offered and admitted as an aid to understanding."); WEINSTEIN, supra note 31, ¶ 401[05] ("Evidence that serves as background information about persons, subjects or things in a trial is generally admissible although it may not relate to a consequential fact."); see also David Crump, On the Uses of Irrelevant Evidence, 34 HOUS. L. REV. 1, 26-46 (1997) (critiquing occasions on which courts have allowed attorneys to elicit testimony for seemingly immaterial purposes, such as to build rapport with the jury or to wear down a hostile witness).
44. For practical purposes, courts and attorneys do not always sharply distinguish between material and immaterial evidence. Background evidence is often admitted, for example, when it will help the fact-finder understand or evaluate other evidence or the issues in the case. See FED. R. EVID. 401 advisory committee's note ("Evidence which is essentially background in nature . . . is universally offered and admitted as an aid to understanding."); WEINSTEIN, supra note 31, ¶ 401[05] ("Evidence that serves as background information about persons, subjects or things in a trial is generally admissible although it may not relate to a consequential fact."); see also David Crump, On the Uses of Irrelevant Evidence, 34 HOUS. L. REV. 1, 26-46 (1997) (critiquing occasions on which courts have allowed attorneys to elicit testimony for seemingly immaterial purposes, such as to build rapport with the jury or to wear down a hostile witness).
45. Though the usage today is less common, probative value is sometimes referred to as "logical relevance." See, e.g., Herman L. Trautman, Logical or Legal Relevancy - A Conflict in Theory, 5 VAND. L. REV. 385, 388 (1952) (stating that a factual proposition is logically relevant "to a probandum before the court if from what is known about that fact from human experience, it is possible to infer the existence of the probandum"). "Logical relevance," in turn, is sometimes distinguished from "legal relevance," a term used to refer to the capacity of an item of evidence to withstand the balancing test codified in Rule 403. See EDWARD J. IMWINKELRIED, EVIDENTIARY DISTINCTIONS: UNDERSTANDING THE FEDERAL RULES OF EVIDENCE 38-40 (1993); see also FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."). The term "legally relevant" can be traced to Professor Wigmore, who argued that evidence should not be deemed relevant unless it possesses more than minimal probative value. See 1A JOHN H. WIGMORE, EVIDENCE IN TRIALS AND AT COMMON LAW § 28, at 969 (Peter Tillers ed., 1983). Rather than take Wigmore's approach and require that evidence have more than some minimal quantum of probative force, the drafters of the Federal Rules of Evidence declared that evidence is relevant if it has "any" tendency to establish or negate a consequential fact, but that such evidence should not be admitted if its probative value is "substantially outweighed" by various specified concerns. See FED. R. EVID. 401, 403.
46. Though the usage today is less common, probative value is sometimes referred to as "logical relevance." See, e.g., Herman L. Trautman, Logical or Legal Relevancy - A Conflict in Theory, 5 VAND. L. REV. 385, 388 (1952) (stating that a factual proposition is logically relevant "to a probandum before the court if from what is known about that fact from human experience, it is possible to infer the existence of the probandum"). "Logical relevance," in turn, is sometimes distinguished from "legal relevance," a term used to refer to the capacity of an item of evidence to withstand the balancing test codified in Rule 403. See EDWARD J. IMWINKELRIED, EVIDENTIARY DISTINCTIONS: UNDERSTANDING THE FEDERAL RULES OF EVIDENCE 38-40 (1993); see also FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."). The term "legally relevant" can be traced to Professor Wigmore, who argued that evidence should not be deemed relevant unless it possesses more than minimal probative value. See 1A JOHN H. WIGMORE, EVIDENCE IN TRIALS AND AT COMMON LAW § 28, at 969 (Peter Tillers ed., 1983). Rather than take Wigmore's approach and require that evidence have more than some minimal quantum of probative force, the drafters of the Federal Rules of Evidence declared that evidence is relevant if it has "any" tendency to establish or negate a consequential fact, but that such evidence should not be admitted if its probative value is "substantially outweighed" by various specified concerns. See FED. R. EVID. 401, 403.
47. Though the usage today is less common, probative value is sometimes referred to as "logical relevance." See, e.g., Herman L. Trautman, Logical or Legal Relevancy - A Conflict in Theory, 5 VAND. L. REV. 385, 388 (1952) (stating that a factual proposition is logically relevant "to a probandum before the court if from what is known about that fact from human experience, it is possible to infer the existence of the probandum"). "Logical relevance," in turn, is sometimes distinguished from "legal relevance," a term used to refer to the capacity of an item of evidence to withstand the balancing test codified in Rule 403. See EDWARD J. IMWINKELRIED, EVIDENTIARY DISTINCTIONS: UNDERSTANDING THE FEDERAL RULES OF EVIDENCE 38-40 (1993); see also FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."). The term "legally relevant" can be traced to Professor Wigmore, who argued that evidence should not be deemed relevant unless it possesses more than minimal probative value. See 1A JOHN H. WIGMORE, EVIDENCE IN TRIALS AND AT COMMON LAW § 28, at 969 (Peter Tillers ed., 1983). Rather than take Wigmore's approach and require that evidence have more than some minimal quantum of probative force, the drafters of the Federal Rules of Evidence declared that evidence is relevant if it has "any" tendency to establish or negate a consequential fact, but that such evidence should not be admitted if its probative value is "substantially outweighed" by various specified concerns. See FED. R. EVID. 401, 403.
48. Though the usage today is less common, probative value is sometimes referred to as "logical relevance." See, e.g., Herman L. Trautman, Logical or Legal Relevancy - A Conflict in Theory, 5 VAND. L. REV. 385, 388 (1952) (stating that a factual proposition is logically relevant "to a probandum before the court if from what is known about that fact from human experience, it is possible to infer the existence of the probandum"). "Logical relevance," in turn, is sometimes distinguished from "legal relevance," a term used to refer to the capacity of an item of evidence to withstand the balancing test codified in Rule 403. See EDWARD J. IMWINKELRIED, EVIDENTIARY DISTINCTIONS: UNDERSTANDING THE FEDERAL RULES OF EVIDENCE 38-40 (1993); see also FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."). The term "legally relevant" can be traced to Professor Wigmore, who argued that evidence should not be deemed relevant unless it possesses more than minimal probative value. See 1A JOHN H. WIGMORE, EVIDENCE IN TRIALS AND AT COMMON LAW § 28, at 969 (Peter Tillers ed., 1983). Rather than take Wigmore's approach and require that evidence have more than some minimal quantum of probative force, the drafters of the Federal Rules of Evidence declared that evidence is relevant if it has "any" tendency to establish or negate a consequential fact, but that such evidence should not be admitted if its probative value is "substantially outweighed" by various specified concerns. See FED. R. EVID. 401, 403.
49. Though the usage today is less common, probative value is sometimes referred to as "logical relevance." See, e.g., Herman L. Trautman, Logical or Legal Relevancy - A Conflict in Theory, 5 VAND. L. REV. 385, 388 (1952) (stating that a factual proposition is logically relevant "to a probandum before the court if from what is known about that fact from human experience, it is possible to infer the existence of the probandum"). "Logical relevance," in turn, is sometimes distinguished from "legal relevance," a term used to refer to the capacity of an item of evidence to withstand the balancing test codified in Rule 403. See EDWARD J. IMWINKELRIED, EVIDENTIARY DISTINCTIONS: UNDERSTANDING THE FEDERAL RULES OF EVIDENCE 38-40 (1993); see also FED. R. EVID. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."). The term "legally relevant" can be traced to Professor Wigmore, who argued that evidence should not be deemed relevant unless it possesses more than minimal probative value. See 1A JOHN H. WIGMORE, EVIDENCE IN TRIALS AND AT COMMON LAW § 28, at 969 (Peter Tillers ed., 1983). Rather than take Wigmore's approach and require that evidence have more than some minimal quantum of probative force, the drafters of the Federal Rules of Evidence declared that evidence is relevant if it has "any" tendency to establish or negate a consequential fact, but that such evidence should not be admitted if its probative value is "substantially outweighed" by various specified concerns. See FED. R. EVID. 401, 403.
50. See 1 EDMUND M. MORGAN, BASIC PROBLEMS OF EVIDENCE 183-84 (1961); WEINSTEIN, supra note 31, ¶ 401[06].
51. See New Jersey v. T.L.O., 469 U.S. 325, 345 (1985) (discussing the legality of a school official's search of a student's purse); see also WEINSTEIN, supra note 31, ¶ 401[06] (using the facts in T.L.O. as an example of probative value).
52. FED. R. EVID. 401 advisory committee's note; see also EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 194 (3d Cir. 1980) ("A legitimate or permissible inference must be deduced as a logical consequence of facts presented in evidence. There must be a logical and rational connection between the basic facts presented in evidence and the ultimate fact to be inferred."); Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 744 (2d Cir. 1975) ("An inference will be upheld only if application of common experience and logic to the underlying evidence will support it."), cert. denied, 424 U.S. 955 (1976).
53. Judge Weinstein usefully elaborates: It is important for the judge to bear in mind in a jury case that the experience of jurors may be quite different from his and that consequently their assessment of probabilities may vary from his. So long as a juror might rationally have his assessment of probabilities affected by proffered evidence that evidence is relevant. . . . That does not mean the jurors are acting irrationally or emotionally, but only that they are utilizing their own experience to supply and evaluate appropriate hypotheses of proof. WEINSTEIN, supra note 31, ¶ 401[09]; see also I CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 83 (2d ed. 1994) (stating that the test of relevancy ultimately "turns on whether reasonable persons making thoughtful decisions in life outside the courtroom would consider evidence to be probative, which in turn means a logical connection to the point to be determined such that the evidence makes its existence more or less probable than it was without the evidence").
54. See MUELLER & KIRKPATRICK, supra note 40, § 83.
55. FED. R. EVID. 401.
56. See id.
57. FED. R. EVID. 402.
58. See id. ("All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.") (emphasis added).
59. See FED. R. EVID. 403; see also Autry v. Estelle, 706 F.2d 1394, 1406 (5th Cir. 1983) ("Fed. R. Evid. 403 may be the most frequently cited of the federal rules of evidence."); CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 4.10 (2d ed. 1999) ("The first and most frequently asserted ground of exclusion in FRE 403 is 'unfair prejudice.'").
60. See FED. R. EVID. 403; see also Autry v. Estelle, 706 F.2d 1394, 1406 (5th Cir. 1983) ("Fed. R. Evid. 403 may be the most frequently cited of the federal rules of evidence."); CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE § 4.10 (2d ed. 1999) ("The first and most frequently asserted ground of exclusion in FRE 403 is 'unfair prejudice.'").
61. FED. R. EVID. 403 advisory committee's note. See generally CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE UNDER THE RULES: TEXT, CASES, AND PROBLEMS 61 (3d ed. 1996) ("Intuition and emotion in the trier of fact are matters to be controlled and minimized, and numerous exclusionary rules serve that end, along with a tradition of discretionary power in the trial judge to exclude evidence so as to obviate or minimize extrarational forces.").
62. FED. R. EVID. 403 advisory committee's note. See generally CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE UNDER THE RULES: TEXT, CASES, AND PROBLEMS 61 (3d ed. 1996) ("Intuition and emotion in the trier of fact are matters to be controlled and minimized, and numerous exclusionary rules serve that end, along with a tradition of discretionary power in the trial judge to exclude evidence so as to obviate or minimize extrarational forces.").
63. JACK B. WEINSTEIN & MARGARET A. BERGER, STUDENT EDITION OF WEINSTEIN'S EVIDENCE MANUAL: A GUIDE TO THE FEDERAL RULES OF EVIDENCE § 6.02[2] (1997).
64. PAUL F. ROTHSTEIN ET AL., EVIDENCE IN A NUTSHELL: STATE AND FEDERAL RULES 73 (3d ed. 1997).
65. See FED. R. EVID. 404(b) ("Evidence of other crimes . . . is not admissible to prove the character of a person in order to show action in conformity therewith.").
66. See ROTHSTEIN, supra note 49, at 75.
67. Old Chief v. United States, 519 U.S. 172, 186-87 (1997). Old Chief certainly was not the first ruling by a federal court recognizing that prosecutors often may refuse to enter into a stipulation proposed by a criminal defendant. The lower federal courts, however, had been decidedly vague on the details of the rationale for that general rule. For example, in a case concerning the transport of pornographic films, the United States Court of Appeals for the Fifth Circuit stated: It is a general rule that [a] party is not required to accept a judicial admission of his adversary, but may insist on proving the fact. The reason for the rule is to permit a party to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight. Parr v. United States, 255 F.2d 86, 88 (5th Cir.) (citation and internal quotations omitted), cert. denied, 358 U.S. 824 (1958). Yet the court did not elaborate on its notion of evidence's "fair and legitimate weight." Rather, the Parr court sustained the trial court's decision to show portions of the films in question to the jury - notwithstanding the defendant's offer to stipulate that the films were obscene - because "the pictures offered in evidence [we]re of the gist of the offense." Id. Similarly, Professor Wigmore stated that evidence may have "moral force," but did not explain what he meant by that phrase. See 9 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2591 (James H. Chadbourn ed., 1981) ("[A] colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence . . . ."). Other authorities are similarly vague. See, e.g., United States v. Tavares, 21 F.3d 1, 3 (1st Cir. 1994) ("We fully concede the government's right to present to the jury a picture of the events relied upon, including proof of all elements of the crime for which the defendant has been brought to trial.") (citation and internal quotation omitted); United States v. Ellison, 793 F.2d 942, 949 (8th Cir.) ("Generally, the government is not bound by a defendant's offer to stipulate to an element of a crime. The rationale for the rule is to enable the government to present to the jury a complete picture of the events constituting the crime charged."), cert. denied, 479 U.S. 937 (1986); United States v. Williford, 764 F.2d 1493, 1498 (11th Cir. 1985) ("Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury."); United States v. Pedroza, 750 F.2d 187, 201 (2d Cir. 1984) (stating that evidence may be admitted in lieu of a stipulation if the evidence might help the jury "to understand the government's theory of the case"). Old Chief is the first Supreme Court case offering a detailed, broadly sweeping evidentiary explanation of the rationale underlying the general rule at issue.
68. Old Chief, 519 U.S. at 187 (quoting Parr, 255 F.2d at 88).
69. Id. (internal quotation omitted).
70. See supra notes 46-51 and accompanying text (discussing Rule 403).
71. Old Chief, 519 U.S. at 187-88; see supra notes 29-44 and accompanying text (discussing materiality and probative value).
72. See FED. R. EVID. 403 (stating that relevant evidence may be excluded if its probative value is "substantially outweighed . . . by considerations of undue delay, waste of time, or needless presentation of cumulative evidence").
73. Although the Court did not expressly address the matter, its opinion fairly clearly implies that the presence of either of these two additional dimensions of evidentiary value is not independently sufficient to justify the admission of a given item of evidence. Rather, evidence is admissible only if it satisfies the traditional definitions of materiality and probative value. Yet if evidence does satisfy those definitions, it might possess added probative weight - and thus be more likely to survive Rule 403's balancing analysis - if it possesses evidentiary value in either of the two additional ways discussed above. The Court's apparent reasoning on this matter is discussed more fully infra at notes 86-102.
74. Old Chief, 519 U.S. at 187.
75. Id.
76. See supra notes 29-44 and accompanying text (discussing the traditional conception of relevance).
77. See, e.g., United States v. Lowe, 145 F.3d 45, 51 (1st Cir.) ("[T]he defendant conceded to nothing more than having consensual sex with K. He did not concede the element of intent required to prove kidnapping and the Mann Act offense. Thus, the fact that Lowe admitted to having sex with K. did not remove the issue of intent from the case."), cert. denied, 525 U.S. 918 (1998); United States v. Crowder, 141 F.3d 1202, 1208 (D.C. Cir. 1998) (stating that evidence offered by a prosecutor under Rule 404(b) of the Federal Rules of Evidence will often have "multiple utility, showing at once intent, knowledge, motive, preparation and the like"), cert. denied, 525 U.S. 1149 (1999).
78. Old Chief, 519 U.S. at 187.
79. Id. at 187-88.
80. Id. at 188-89.
81. Id. at 189.
82. Id.
83. See Old Chief, 519 U.S. at 190.
84. Id. at 174-75; see 18 U.S.C. § 922(g) (1994).
85. Old Chief, 519 U.S. at 177.
86. Id. at 190.
87. Id.
88. Id.
89. See id. at 190-91.
90. Note that, while there is a danger that such evidence would cause the jury to conclude that the defendant is a bad person who should be imprisoned regardless of whether he committed the weapons offense, see supra notes 46-51 and accompanying text (discussing unfair prejudice), the evidence would not be offered for a purpose forbidden by the character rules set forth in Rule 404. That is, the evidence of the defendant's past violent conduct would not be offered as circumstantial proof that the defendant is a violent person who behaved violently at a subsequent point in time. See FED. R. EVID. 404.
91. Old Chief, 519 U.S. at 190 (internal quotation omitted).
92. 18 U.S.C. § 922(g)(1) (1994).
93. The Court did not make itself entirely clear on this point. See infra notes 125-32 and accompanying text.
94. Old Chief, 519 U.S. at 190-91.
95. Id. at 191.
96. See id. 82. See supra notes 46-51 and accompanying text (discussing Rule 403).
97. Old Chief, 519 U.S. at 192.
98. See FED. R. EVID. 403.
99. See Old Chief, 519 U.S. at 191-92. One additional aspect of the Court's reasoning warrants mentioning. The Court clarified the manner in which a court should conduct Rule 403's balancing analysis when the Government seeks to prove that a defendant is a convicted felon. When presented with the Government's proof, the trial court must determine whether there are any alternative means of proof (such as a defendant's stipulation) that have the same or greater probative value, but that present a lesser risk of unfair prejudice. If so, the trial court must discount the probative value of the Government's proffered evidence and then determine whether that discounted probative value is substantially outweighed by the risk of unfair prejudice. If it is, the trial court must exclude the Government's evidence in favor of a less prejudicial alternative. See id. at 182-85. The Court emphasized that its holding in this regard was "limited to cases involving proof of felon status." Id. at 183 n.7. Rather than focus on the merits of this narrow aspect of the Court's reasoning, this Article focuses on the probative weight that the Court said evidence may legitimately possess before any "discounts" are made. Other commentators provide useful discussions of the Court's discount analysis. See Louis A. Jacobs, Evidence Rule 403 After United States v. Old Chief, 20 AM. J. TRIAL ADVOC. 563, 566-90 (1997) (analyzing the Court's rationale in terms of need, probative value, harm, and mitigation factors); Michael J. Pavloski, Comment, Old Chief v. United States: Interpretation and Misapplication of Federal Rule of Evidence 403, 33 NEW ENG. L. REV. 797, 819-25 (1999) (arguing that the Court's decision will create confusion in the lower courts).
100. See Old Chief, 519 U.S. at 191-92. One additional aspect of the Court's reasoning warrants mentioning. The Court clarified the manner in which a court should conduct Rule 403's balancing analysis when the Government seeks to prove that a defendant is a convicted felon. When presented with the Government's proof, the trial court must determine whether there are any alternative means of proof (such as a defendant's stipulation) that have the same or greater probative value, but that present a lesser risk of unfair prejudice. If so, the trial court must discount the probative value of the Government's proffered evidence and then determine whether that discounted probative value is substantially outweighed by the risk of unfair prejudice. If it is, the trial court must exclude the Government's evidence in favor of a less prejudicial alternative. See id. at 182-85. The Court emphasized that its holding in this regard was "limited to cases involving proof of felon status." Id. at 183 n.7. Rather than focus on the merits of this narrow aspect of the Court's reasoning, this Article focuses on the probative weight that the Court said evidence may legitimately possess before any "discounts" are made. Other commentators provide useful discussions of the Court's discount analysis. See Louis A. Jacobs, Evidence Rule 403 After United States v. Old Chief, 20 AM. J. TRIAL ADVOC. 563, 566-90 (1997) (analyzing the Court's rationale in terms of need, probative value, harm, and mitigation factors); Michael J. Pavloski, Comment, Old Chief v. United States: Interpretation and Misapplication of Federal Rule of Evidence 403, 33 NEW ENG. L. REV. 797, 819-25 (1999) (arguing that the Court's decision will create confusion in the lower courts).
101. See supra notes 54-67 and accompanying text.
102. Old Chief, 519 U.S. at 187.
103. Id. at 187-88.
104. See id. at 188-89.
105. Id. at 188.
106. See id.
107. See supra notes 41-43 and accompanying text (discussing Rule 401). Prior to Old Chief, the prosecutor's strongest argument for admission would have been that the evidence is necessary to provide a context for understanding the issues in the case. See supra note 35.
108. For purposes of this hypothetical, I am assuming that Congress's moral reasoning controls the evidentiary analysis. See infra notes 109-39 and accompanying text.
109. See supra notes 46-51 and accompanying text (discussing Rule 403).
110. But see Duane, supra note 8, at 468 ("Never before to my knowledge has the Supreme Court, or any other court, come so close [as the Court comes in Old Chief] to formally declaring that evidence which logically proves no disputed historical fact may nevertheless have probative value arising out of its capacity to help persuade the jurors to heed and obey the requirements of the law."); D. Michael Risinger, John Henry Wigmore, Johnny Lynn Old Chief, and "Legitimate Moral Force" - Keeping the Courtroom Safe for Heartstrings and Gore, 49 HASTINGS L.J. 403, 456 (1998) ("Justice Souter apparently has no faith that juries will be up to convicting obviously guilty persons without substantial irrelevant and often inflammatory concrete context to establish human significance.").
111. Old Chief v. United States, 519 U.S. 172, 187 (1997) (emphasis added).
112. Id. at 187-88 (emphasis added).
113. Id. at 191 (emphasis added).
114. This reading of the opinion is buttressed by the fact that, when determining whether any moral weight should be ascribed to the Government's evidence of Old Chief's convicted-felon status, the Court carefully limited its analysis to examining what Congress had said "count[ed] for this purpose." See id. at 190. This further suggests that the relevance of evidence must always be determined in accordance with Congress's definition of the particular crime at issue.
115. The efficient use of time is promoted by the requirement that evidence be admitted only if it has some bearing on the defendant's guilt of the crime charged or on the credibility of the witnesses. See supra notes 29-44 and accompanying text (discussing the relevance requirements); see also FED. R. EVID. 403 (stating that relevant evidence "may be excluded if its probative value is substantially outweighed . . . by considerations of undue delay, waste of time, or needless presentation of cumulative evidence").
116. Any time jurors hear evidence that is not related to the defendant's guilt or innocence but that provides morally powerful reasons for enforcing the law, there is a risk that jurors will become less exacting in their analysis and will vote to convict an individual whose guilt has not been proven beyond a reasonable doubt. See supra notes 46-51 and accompanying text (discussing Rule 403 and the concept of unfair prejudice).
117. See infra notes 109-39 and accompanying text (discussing the problems inherent in trying to assess the tendency of evidence to prove moral reasonableness); infra note 114 (discussing the problems inherent in trying to ascertain jurors' evidentiary expectations).
118. Courts in the post-Old Chief era have already held that such stipulations may properly be rejected. See, e.g., United States v. Salameh, 152 F.3d 88, 122-23 (2d Cir. 1998) (holding that testimony and photographs relating to the injuries and deaths caused by a bombing were properly admitted, notwithstanding the defendants' offer to stipulate that persons had been injured and killed), cert. denied sub nom. Abouhalima v. United States, 525 U.S. 1112 (1999).
119. The admission of graphic photographs has long been a subject of debate between prosecutors and criminal defendants. For an introduction to the issue, see ANDRE A. MOENSSENS ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES § 2.14 (4th ed. 1995).
120. Old Chief v. United States, 519 U.S. 172, 183 n.7 (1997).
121. Id. at 187 (internal quotation omitted).
122. Id. at 190.
123. Id. at 188.
124. If offered for a permissible purpose, evidence of a person's past criminal act may be admitted as evidence - even if the person was never charged with a crime in connection with that act - if a rational juror could conclude that the defendant committed the act. See Huddleston v. United States, 485 U.S. 681, 688 (1988).
125. See supra notes 29-44 and accompanying text (discussing relevance and Rule 401); FED. R. EVID. 404(b) (stating that "[e]vidence of other crimes, wrongs, or acts" may be admissible as proof of "intent").
126. See supra notes 46-51 and accompanying text (discussing unfair prejudice and Rule 403).
127. See Old Chief, 519 U.S. at 187-88.
128. Or consider an example that is closer to the facts in Old Chief. Suppose Congress passes a statute that (unlike 18 U.S.C. § 922(g)) singles out persons who have been convicted of violent felonies and states that such persons cannot possess firearms. The Government brings charges against a violent felon after the police spot a hunting rifle in the rear window of his pickup truck. The prosecutor wishes to tell the jury about the violent crime that the defendant previously committed. Fearing unfair prejudice, the defendant objects pursuant to Rule 403 and offers to stipulate that he has been convicted of a violent felony within the meaning of the statute. Does the evidence have any moral weight that might tip the scale in favor of admissibility? While many judges and jurors might intuitively feel that it does, one can easily imagine a person who believes that gun ownership is a sacred right of all Americans, that the defendant has already paid the penalty for his previous conduct, and that barring the defendant from owning a hunting rifle cannot be morally justified.
129. A similar question may be raised concerning the issue of jurors' evidentiary expectations: How is a trial court to determine whether an item of evidence will have any tendency to meet jurors' expectations concerning the nature of the evidence they will hear? See Old Chief, 519 U.S. at 188-89; supra notes 65-67 and accompanying text. It undoubtedly is true that jurors attempt to construct a coherent and credible narrative of the disputed events before rendering their verdict in a case, and that, in shaping that narrative, they rely in part upon their "generic expectations about what makes a complete story." See Pennington & Hastie, supra note 18, at 522. But how is a trial court to ascertain the precise nature of those expectations? While the Court acknowledges that some such expectations may be created by the trial itself - when a prosecutor consistently relies upon eyewitness testimony, for example, jurors may expect the prosecutor to continue to rely upon eyewitness testimony - the Court also acknowledges that "[s]ome such demands [jurors] bring with them to the courthouse." Old Chief, 519 U.S. at 188. Should those expectations be made the subject of voir dire? Should trial courts simply be permitted to speculate about the nature of jurors' expectations? Rather than tinker with the balancing analysis prescribed by Rule 403, why would it not be sufficient for a trial court merely to issue the jurors a cautionary instruction, telling them not to draw any inference adverse to the prosecution if the prosecutor chooses to prove a fact in a manner other than the manner they anticipate? These are primarily problems of trial management, however, rather than problems of theory. This Article focuses on the problems inherent in determining the moral reasonableness of conviction in any given case because those problems seem much more likely to inhibit Old Chief's broad implementation.
130. See Paul H. Robinson, Legality and Discretion in the Distribution of Criminal Sanctions, 25 HARV. J. ON LEGIS. 393, 403 (1988) ("Studies on jury nullification indicate that jurors frequently exercise their nullification power to circumvent specific rules when they believe that applying them would conflict with broad normative notions of justice."); see also infra notes 154-64 and accompanying text (discussingjury nullification).
131. JEFFREY ABRAMSON, WE, THE JURY; THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 88-89 (1994). But cf. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 108 (1921) (arguing that judges should "conform to the accepted standards of the community, the mores of the times").
132. JEFFREY ABRAMSON, WE, THE JURY; THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 88- 89 (1994). But cf. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 108 (1921) (arguing that judges should "conform to the accepted standards of the community, the mores of the times").
133. See SAMUEL E. STUMPF, MORALITY AND THE LAW 15 (1966) (stating that "judges partake of the general contemporary uncertainty regarding the actual content of moral truth").
134. See RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 6 (1999) (stating the author's thesis "that morality is local, that there are
135. See RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 6 (1999) (stating the author's thesis "that morality is local, that there are no interesting moral universals"); cf. Michael S. Moore, A Theory of Criminal Law Theories, in FOUNDATIONS OF CRIMINAL LAW 140, 142 (Leo Katz et al. eds., 1999) ("Anyone who believes that there are right answers to moral questions like, 'what actions are morally wrongful?' also should have some epistemic modesty about his own grasp of what those right answers are. After all, whatever one can be right about, one can also be wrong about.").
136. POSNER, supra note 118, at 27-28. Judge Posner further argues, however, that, "given the variety of necessary roles in a complex society, it is not a safe idea to have a morally uniform population," and that it would be "a national disaster" if our society were to achieve "moral uniformity." Id. at 67-68.
137. See infra notes 148-51 and accompanying text.
138. See supra notes 63-64, 82-85 and accompanying text.
139. See Old Chief v. United States, 519 U.S. 172, 186 (1997).
140. See FED. R. EVID. 104(a).
141. See supra notes 46-51 and accompanying text.
142. See Old Chief, 519 U.S. at 174; 18 U.S.C. § 922(g)(1) (1994).
143. Old Chief, 519 U.S. at 190-91 (emphasis added) (internal quotation and alteration omitted).
144. See supra notes 29-44 and accompanying text (discussing the traditional conception of relevance).
145. See FED. R. EVID. 401; supra notes 29-44 and accompanying text.
146. See supra note 75 and accompanying text.
147. See Old Chief, 519 U.S. at 188 (stating that evidence can "give life to the moral underpinnings of law's claims").
148. Id. at 190-91 (internal quotation omitted).
149. See id. at 188.
150. See infra notes 148-51 and accompanying text.
151. Cf. Int'l Bhd. of Elec. Workers Local 474 v. NLRB, 814 F.2d 697, 712 (D.C. Cir. 1987) ("[A] cardinal principle of the judicial function is that courts have no authority to enforce principles gleaned solely from legislative history that has no statutory reference point.").
152. Cf. CARDOZO, supra note 116, at 108 (stating that a judge "would err if he were to impose upon the community as a rule of life his own idiosyncrasies of conduct or belief).
153. The literature on statutory interpretation is vast. A useful introduction to the wide array of issues that arise when interpreting legislation (as well as the Constitution) may be found in ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997), a collection of essays by Justice Scalia and Professors Dworkin, Glendon, Tribe, and Wood.
154. Compare Blanchard v. Bergeron, 489 U.S. 87, 99 (1989) (Scalia, J., concurring in part and concurring in the judgment) (condemning the Court's resort to legislative history when trying to ascertain the meaning of a statute), with Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 848-74 (1992) (defending the use of legislative history when trying to discern the meaning of unclear statutory language).
155. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-39 (1987) (Scalia, J., dissenting) (discussing the problems that arise when one tries to ascertain the subjective intentions of numerous individual legislators); Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 869-70 (1930) ("It has frequently been declared that the most approved method [of interpreting a statute] is to discover the intent of the legislator. . . . On this transparent and absurd fiction it ought not to be necessary to dwell. . . . A legislature certainly has no intention whatever in connection with words which some two or three men drafted, which a considerable number rejected, and in regard to which many of the approving majority might have had, and often demonstrably did have, different ideas and beliefs.").
156. See Old Chief v. United States, 519 U.S. 172, 199-200 (1997) (O'Connor, J., dissenting); supra note 6 and accompanying text (describing the alternative explanation proposed by the dissenting justices).
157. Wion v. United States, 325 F.2d 420, 427 (10th Cir. 1963) ("We proceed on the premise that moral responsibility and moral sanctions are the warp and woof of the law . . . ."), cert. denied, 377 U.S. 946 (1964).
158. Criminality and immorality, however, are not coextensive. One can easily imagine conduct that many would deem immoral but that is not a crime (such as lying to one's friend), as well as criminal conduct that many would not deem immoral (such as exceeding the speed limit by one mile per hour or committing certain strict-liability offenses). See POSNER, supra note 118, at 108-15; see also Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459-60 (1897) ("The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.").
159. See Milner v. Apfel, 148 F.3d 812, 814 (7th Cir.) ("A traditional purpose of criminal punishment is to express moral condemnation of the criminal's acts."), cert. denied, 525 U.S. 1024 (1998); United States v. Marvin, 687 F.2d 1221, 1226 (8th Cir. 1982) ("The normal purpose of the criminal law is to condemn and punish conduct that society regards as immoral."), cert. denied, 460 U.S. 1081 (1983); see also United States v. Mason, 966 F.2d 1488, 1494-95 (D.C. Cir.) (stating that the four principal purposes of criminal sanctions are retribution, deterrence, incapacitation, and rehabilitation, and that a person's punishment should be determined in accordance with her moral culpability) (citing 18 U.S.C. § 3553(a)(2) (1994)), cert. denied, 506 U.S. 1040 (1992).
160. United States v. Gilliam, 994 F.2d 97, 101 (2d Cir.), cert. denied, 510 U.S. 927 (1993).
161. Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994); see also Lynce v. Mathis, 519 U.S. 433, 439 (1997) ("The presumption against the retroactive application of new laws is an essential thread in the mantle of protection that the law affords the individual citizen.").
162. Bouie v. Columbia, 378 U.S. 347, 350-51 (1964); see U.S. CONST, amends. V, XIV.
163. Lynce, 519 U.S. at 441; see U.S. CONST, art. I, §§ 9, 10; see also Marks v. United States, 430 U.S. 188, 191 (1977) ("[T]he principle on which the [Ex Post Facto] Clause is based - the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties - is fundamental to our concept of constitutional liberty.").
164. Landgraf, 511 U.S. at 266; see U.S. CONST. art. I, §§ 9, 10.
165. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 1.2(f) (1986) ("There is no doubt that society's ideas of morality, to the extent that they are held by those members of society who are legislators (in the case of statutory crimes) and judges (with common law crimes), have had much to do with formulating the substantive criminal law."). Congress plays the leading role in the federal realm because there is no federal common law of crimes. See Parratt v. Taylor, 451 U.S. 527, 531 (1981) (citing United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812)), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW 60 (1972). Undoubtedly, though, judges' own moral convictions sometimes cause them to interpret Congress's pronouncements in one manner, rather than another.
166. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 1.2(f) (1986) ("There is no doubt that society's ideas of morality, to the extent that they are held by those members of society who are legislators (in the case of statutory crimes) and judges (with common law crimes), have had much to do with formulating the substantive criminal law."). Congress plays the leading role in the federal realm because there is no federal common law of crimes. See Parratt v. Taylor, 451 U.S. 527, 531 (1981) (citing United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812)), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON CRIMINAL LAW 60 (1972). Undoubtedly, though, judges' own moral convictions sometimes cause them to interpret Congress's pronouncements in one manner, rather than another.
167. See THOMAS J. GARDNER, CRIMINAL LAW: PRINCIPLES AND CASES 7 (3d ed. 1985) ("Criminal laws reflect the moral and ethical beliefs of the society."). Not only are the elements of crimes often based upon moral precepts, but the requirement that guilt be proven beyond a reasonable doubt is itself predicated on value-laden suppositions. See In re Winship, 397 U.S. 358, 363-64 (1970) ("[A] society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. . . . It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.").
168. Juries' sentencing recommendations, however, are another matter. In the context of capital sentencing proceedings, for example, the Court has emphasized that "the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime." Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (internal quotation omitted).
169. LEONARD B. SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS (CRIMINAL) ¶ 2.01 [Instruction 2-2] (1996).
170. Old Chief v. United States, 519 U.S. 172, 187-88 (1997) (internal quotation omitted); see supra notes 63-64, 129-32 and accompanying text.
171. Cf. supra notes 30-35 and accompanying text (discussing the concept of materiality).
172. United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997); United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993); United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970); see also ABRAMSON, supra note 116, at 64 ("Even critics of jury nullification concede that criminal juries have the raw power to pardon lawbreaking because there is no device for reversing a jury that insists on acquitting a defendant against the law.").
173. See, e.g., Sherman J. Clark, The Courage of Our Convictions, 97 MICH. L. REV. 2381, 2416 (1999) ("[C]ases of actual nullification are arguably quite rare. Opponents of nullification, particularly in the popular press, often argue anecdotally, pointing to certain high profile verdicts [as evidence that nullification is harming our justice system]. One academic has gone so far as to describe the United States as 'in an age of radical and frequent acts of criminal jury nullification.' I have located no evidence in support of these dire descriptions.") (quoting Victor Williams, A Constitutional Charge and a Comparative Vision to Substantially Expand and Subject Matter Specialize the Federal Judiciary: A Preliminary Blueprint for Remodeling Our National Houses of Justice and Establishing a Separate System of Federal Criminal Courts, 37 WM. & MARY L. REV. 535, 609-10 (1996)).
174. See, e.g., Sherman J. Clark, The Courage of Our Convictions, 97 MICH. L. REV. 2381, 2416 (1999) ("[C]ases of actual nullification are arguably quite rare. Opponents of nullification, particularly in the popular press, often argue anecdotally, pointing to certain high profile verdicts [as evidence that nullification is harming our justice system]. One academic has gone so far as to describe the United States as 'in an age of radical and frequent acts of criminal jury nullification.' I have located no evidence in support of these dire descriptions.") (quoting Victor Williams, A Constitutional Charge and a Comparative Vision to Substantially Expand and Subject Matter Specialize the Federal Judiciary: A Preliminary Blueprint for Remodeling Our National Houses of Justice and Establishing a Separate System of Federal Criminal Courts, 37 WM. & MARY L. REV. 535, 609-10 (1996)).
175. The 1735 trial of John Peter Zenger for seditious libel famously illustrates the point. Zenger was accused of violating a law that made it illegal to publish statements criticizing the British government. Although Zenger's statements apparently were true, the court instructed the jury that truth was not a defense in a prosecution for seditious libel, that the statements were indeed libelous, and that the jury's chief task was merely to determine whether Zenger had in fact published the statements. Zenger's attorney urged the jury to disregard the court's instructions and set Zenger free - which is precisely what the jury did. See ABRAMSON, supra note 116, at 73-75. Modern juries also sometimes refuse to convict defendants charged with violating unpopular laws, though most of these acquittals are unlikely to join Zenger's case among the great legends of the American jury. See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 433 (1966) (stating that the authors' study of jury verdicts indicated that jury nullification sometimes occurred in prosecutions for "unpopular crimes" - namely, "gambling, liquor violations, game law violations, and drunken driving").
176. Cf. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 679 (1995) (arguing that "it is the moral responsibility of black jurors to emancipate some guilty black outlaws").
177. See Thomas, 116 F.3d at 614 ("We are mindful that the term 'nullification' can cover a number of distinct, though related, phenomena, encompassing in one word conduct that takes place for a variety of different reasons; jurors may nullify, for example, because of the identity of a party, a disapprobation of the particular prosecution at issue, or a more general opposition to the applicable criminal law or laws.").
178. See U.S. CONST. amend. VI.
179. United States v. Jones, 108 F.3d 668, 673-76 (6th Cir. 1997); United States v. Garaway, 425 F.2d 185, 185 (9th Cir. 1970); United States v. Spock, 416 F.2d 165, 180 (1st Cir. 1969).
180. United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970).
181. The principle that jurors may not be punished for their verdicts was established as a fundamental principle of the English common law in Bushell's Case, 124 Eng. Rep. 1006 (C.P. 1670). See ABRAMSON, supra note 116, at 68-73 (discussing the refusal of juror Bushell and others to convict Quakers William Penn and William Mead of unlawful assembly and breach of the peace). American courts adhere to the same principle. See, e.g., United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972).
182. United States v. Scott, 437 U.S. 82, 91 (1978); United States v. Ball, 163 U.S. 662, 671 (1896).
183. For the same reasons that they possess the power to acquit despite overwhelming evidence of guilt, criminal juries also possess the power to convict a criminal defendant whose legal guilt they do not believe has been established beyond a reasonable doubt. When this occurs, however, the system provides the defendant with remedies. For example, the defendant can move for a judgment of acquittal if she believes the evidence is insufficient to sustain a conviction. See FED. R. CRIM. P. 29. The defendant can also appeal her conviction. Cf. United States v. Coonan, 839 F.2d 886, 891 (2d Cir. 1988) (stating that "although juries may freely temper the rigor of the law, they surely may not enhance it").
184. See, e.g., ABRAMSON, supra note 116, at 92, 95 (arguing that nullification is "the time-honored way of permitting juries to leaven the law with leniency" and that nullification remains "a timeless strategy for jurors seeking to bring law into line with their conscience"); Nancy S. Marder, The Myth of the Nullifying Jury, 93 Nw. U. L. REV. 877, 958-59 (1999) (concluding that "there is no need to limit jury nullification because it is, by and large, beneficial to the judicial system"); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 AM. CRIM. L. REV. 239, 244-45 (1993) (arguing that, within certain parameters, nullification "is good for the American soul" and usually occurs only when a jury has "a good reason" for choosing not to apply the law in a mechanistic fashion); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 841-46 (1990) (proposing a "defendant-centered framework" for assessing issues relating to jury nullification, under which nullification practices are rooted in a criminal defendant's Sixth Amendment right to trial by jury); see also M.B.E. Smith, May Judges Ever Nullify the Law?, 74 NOTRE DAME L. REV. 1657, 1661-71 (1999) (arguing that it is sometimes legally and morally permissible for judges to nullify the law).
185. See, e.g., ABRAMSON, supra note 116, at 92, 95 (arguing that nullification is "the time- honored way of permitting juries to leaven the law with leniency" and that nullification remains "a timeless strategy for jurors seeking to bring law into line with their conscience"); Nancy S. Marder, The Myth of the Nullifying Jury, 93 Nw. U. L. REV. 877, 958-59 (1999) (concluding that "there is no need to limit jury nullification because it is, by and large, beneficial to the judicial system"); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 AM. CRIM. L. REV. 239, 244-45 (1993) (arguing that, within certain parameters, nullification "is good for the American soul" and usually occurs only when a jury has "a good reason" for choosing not to apply the law in a mechanistic fashion); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 841-46 (1990) (proposing a "defendant-centered framework" for assessing issues relating to jury nullification, under which nullification practices are rooted in a criminal defendant's Sixth Amendment right to trial by jury); see also M.B.E. Smith, May Judges Ever Nullify the Law?, 74 NOTRE DAME L. REV. 1657, 1661-71 (1999) (arguing that it is sometimes legally and morally permissible for judges to nullify the law).
186. See, e.g., ABRAMSON, supra note 116, at 92, 95 (arguing that nullification is "the time- honored way of permitting juries to leaven the law with leniency" and that nullification remains "a timeless strategy for jurors seeking to bring law into line with their conscience"); Nancy S. Marder, The Myth of the Nullifying Jury, 93 Nw. U. L. REV. 877, 958-59 (1999) (concluding that "there is no need to limit jury nullification because it is, by and large, beneficial to the judicial system"); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 AM. CRIM. L. REV. 239, 244-45 (1993) (arguing that, within certain parameters, nullification "is good for the American soul" and usually occurs only when a jury has "a good reason" for choosing not to apply the law in a mechanistic fashion); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 841-46 (1990) (proposing a "defendant-centered framework" for assessing issues relating to jury nullification, under which nullification practices are rooted in a criminal defendant's Sixth Amendment right to trial by jury); see also M.B.E. Smith, May Judges Ever Nullify the Law?, 74 NOTRE DAME L. REV. 1657, 1661-71 (1999) (arguing that it is sometimes legally and morally permissible for judges to nullify the law).
187. See, e.g., ABRAMSON, supra note 116, at 92, 95 (arguing that nullification is "the time- honored way of permitting juries to leaven the law with leniency" and that nullification remains "a timeless strategy for jurors seeking to bring law into line with their conscience"); Nancy S. Marder, The Myth of the Nullifying Jury, 93 Nw. U. L. REV. 877, 958-59 (1999) (concluding that "there is no need to limit jury nullification because it is, by and large, beneficial to the judicial system"); Jack B. Weinstein, Considering Jury "Nullification": When May and Should a Jury Reject the Law to Do Justice, 30 AM. CRIM. L. REV. 239, 244-45 (1993) (arguing that, within certain parameters, nullification "is good for the American soul" and usually occurs only when a jury has "a good reason" for choosing not to apply the law in a mechanistic fashion); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 841-46 (1990) (proposing a "defendant-centered framework" for assessing issues relating to jury nullification, under which nullification practices are rooted in a criminal defendant's Sixth Amendment right to trial by jury); see also M.B.E. Smith, May Judges Ever Nullify the Law?, 74 NOTRE DAME L. REV. 1657, 1661-71 (1999) (arguing that it is sometimes legally and morally permissible for judges to nullify the law).
188. See, e.g., Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563, 2577-82 (1997) (arguing that even codifying standards for nullification would not remedy the fact that nullification constitutes lawmaking by unelected and politically unaccountable jurors); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy, and Prosecutorial Strategy, 85 GEO. L.J. 191, 211-31 (1996) (critiquing various arguments often made in favor of nullification).
189. See, e.g., Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563, 2577-82 (1997) (arguing that even codifying standards for nullification would not remedy the fact that nullification constitutes lawmaking by unelected and politically unaccountable jurors); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy, and Prosecutorial Strategy, 85 GEO. L.J. 191, 211-31 (1996) (critiquing various arguments often made in favor of nullification).
190. See, e.g., KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY 364-66 (1987) (arguing that jurors should acquit a defendant despite clear evidence of guilt only if the jurors are "firmly convinced that a gross injustice would be done by conviction" because the defendant was either "performing an act that was clearly justified or was exercising an undeniable moral right"): MORTIMER R. KADISH & SANFORD H. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES 59-62 (1973) (arguing that a juror's duty to apply the law may be outweighed when deviation from the law is necessary "to achieve the ends of criminal justice"); Butler, supra note 157, at 715-25 (describing the circumstances in which African-American jurors should exercise their power of nullification to acquit African-American defendants); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, 142 (1988) (arguing that nullification should be permitted only when the defendant acted with highly sympathetic motives, when the Government is prosecuting the defendant with improper motives, or when "the law under which a defendant is prosecuted conflicts with deep- seated contemporary values").
191. See, e.g., KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY 364-66 (1987) (arguing that jurors should acquit a defendant despite clear evidence of guilt only if the jurors are "firmly convinced that a gross injustice would be done by conviction" because the defendant was either "performing an act that was clearly justified or was exercising an undeniable moral right"): MORTIMER R. KADISH & SANFORD H. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES 59-62 (1973) (arguing that a juror's duty to apply the law may be outweighed when deviation from the law is necessary "to achieve the ends of criminal justice"); Butler, supra note 157, at 715-25 (describing the circumstances in which African-American jurors should exercise their power of nullification to acquit African-American defendants); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, 142 (1988) (arguing that nullification should be permitted only when the defendant acted with highly sympathetic motives, when the Government is prosecuting the defendant with improper motives, or when "the law under which a defendant is prosecuted conflicts with deep- seated contemporary values").
192. See, e.g., KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY 364-66 (1987) (arguing that jurors should acquit a defendant despite clear evidence of guilt only if the jurors are "firmly convinced that a gross injustice would be done by conviction" because the defendant was either "performing an act that was clearly justified or was exercising an undeniable moral right"): MORTIMER R. KADISH & SANFORD H. KADISH, DISCRETION TO DISOBEY: A STUDY OF LAWFUL DEPARTURES FROM LEGAL RULES 59-62 (1973) (arguing that a juror's duty to apply the law may be outweighed when deviation from the law is necessary "to achieve the ends of criminal justice"); Butler, supra note 157, at 715-25 (describing the circumstances in which African-American jurors should exercise their power of nullification to acquit African-American defendants); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, 142 (1988) (arguing that nullification should be permitted only when the defendant acted with highly sympathetic motives, when the Government is prosecuting the defendant with improper motives, or when "the law under which a defendant is prosecuted conflicts with deep-seated contemporary values").
193. See, e.g., David N. Dorfman & Chris K. Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 918-25 (1995) (proposing a bifurcated scheme under which a jury would first determine legal guilt, then, if finding a defendant guilty, would consider whether nullification is appropriate); Andrew D. Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253, 312-16 (1996) (arguing that nullification should be made an affirmative defense, with statutorily defined bases).
194. See, e.g., David N. Dorfman & Chris K. Iijima, Fictions, Fault, and Forgiveness: Jury Nullification in a New Context, 28 U. MICH. J.L. REFORM 861, 918-25 (1995) (proposing a bifurcated scheme under which a jury would first determine legal guilt, then, if finding a defendant guilty, would consider whether nullification is appropriate); Andrew D. Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253, 312-16 (1996) (arguing that nullification should be made an affirmative defense, with statutorily defined bases).
195. Some believe the questions are related. See, e.g., David C. Brody, Sparf and Dougherty Revisited: Why the Court Should Instruct the Jury of Its Nullification Right, 33 AM. CRIM. L. REV. 89, 106 (1995) ("When a jury acquits a criminal defendant against the great weight of the evidence, conceptually the question is whether that acquittal is a rightful exercise of the jury's power or an abuse of discretion for which there is no sanction or remedy. If the acquittal is an abuse of discretion, the jury should not receive an instruction to the effect that it may nevertheless freely engage in such abuse.").
196. See, e.g., KADISH & KADISH, supra note 167, at 59 (stating that, because jurors are instructed to apply the law as described by the court, "the jury cannot be said to have the right to act according to its own judgment in the sense that an official has the right to act according to his own judgment when the law grants him explicit discretionary authority to do so"); Leipold, supra note 168, at 295 (concluding that "there is little evidence that a jury's ability to acquit against the evidence - or more precisely, the 'right' of a defendant to be tried by a jury that has the power to nullify - is protected by the Constitution"); Warshawsky, supra note 166, at 206-08 (arguing that defendants do not possess a Sixth Amendment right to jury nullification).
197. See, e.g., Brody, supra note 169, at 106-08 (arguing that it is "absurd" to say that jurors do not have a right to nullify, given the ways in which the criminal justice system ensures that jurors' power to nullify is retained); Weinberg-Brodt, supra note 165, at 841-46 (setting forth a "defendant-centered framework" in which defendants could claim certain Sixth Amendment nullification-related rights).
198. See, e.g., GREENAWALT, supra note 167, at 367 (suggesting that trial courts give an instruction "that would alert all jurors to the existence of the nullification power but would indicate in the strongest terms that it should be reserved for only the most exceptional cases"); Brody, supra note 169, at 108-20 (arguing that instructing juries about their nullification power would not lead to a rash of acquittals and would reduce the psychic costs borne by jurors).
199. See, e.g., George C. Christie, Lawful Departures From Legal Rules: "Jury Nullification" and Legitimated Disobedience, 62 CAL. L. REV. 1289, 1304 (1974) (arguing that juries should not be told of their nullification power because "jurors alone bear responsibility for acquitting in these circumstances, not the law which permits them to get away with doing so"); Stacy & Dayton, supra note 167, at 141 (suggesting that instructing juries about their power of nullification might encourage them to "usurp the role of legislatures to declare law," might open up trials for "wide-ranging and protracted inquiries into both a defendant's background and the prosecutor's reasons for initiating charges," and might encourage acquittals in cases in which the prosecution has not offended "fundamental and widely accepted values"); Weinstein, supra note 165, at 250-51 (opposing jury instructions on nullification because giving such an instruction "is like telling children not to put beans in their noses" - the jury might not have thought of it otherwise, and should nullify only when driven to do so by the force of their consciences); see also KADISH & KADISH, supra note 167, at 64-65 (stating that an instruction on nullification would ensure that all criminal defendants are tried by juries who understand the power of nullification, but might also "invite jury nullification on a greater scale").
200. 156 U.S. 51 (1895).
201. For discussions of the contours and history of this debate in the United States, see ABRAMSON, supra note 116, at 73-88 (discussing the trial of John Peter Zenger for seditious libel, the slave-trade trial of John Battiste, prosecutions under the Fugitive Slave Law of 1850, developments in the state courts and legislatures, and the Supreme Court's decision in Sparf); KADISH & KADISH, supra note 167, at 48-50; Brody, supra note 169, at 98-102.
202. See Sparf, 156 U.S. at 64-102.
203. Id. at 102-03. The Court thereby adopted the position declared by Justice Story earlier that century. In United States v. Battiste, 24 F. Cas. 1042 (C.C.D. Mass. 1835) (No. 14,545), Justice Story conceded that the jury does "have the physical power to disregard the law, as laid down to them by the court." Id. at 1043. He continued: But I deny, that, in any case, civil or criminal, they have the moral right to decide the law according to their own notions, or pleasure. On the contrary, I hold it the most sacred constitutional right of every party accused of a crime, that the jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the jury as to the law; and it is the duty of the jury to follow the law, as it is laid down by the court. . . . Every person accused as a criminal has a right to be tried according to the law of the land. Id. But cf. Georgia v. Brailsford, 3 U.S. 1, 4 (1794) (instructing a jury that, while it should give due consideration to the Court's explanation of the governing law, it possessed the right "to determine the law as well as the fact in controversy"). While Justice Story's chief concern was the right of the defendant "to be tried according to the law of the land," his division of responsibilities between the court and the jury - with the court determining the law and the jury determining the facts - has held true in cases such as Sparf and others, in which the defendants argued that juries should be permitted to determine the law. See infra notes 180-83 and accompanying text.
204. See, e.g., United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972) (stating that "[t]he pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge," as when the jury acquitted Zenger of seditious libel and when juries acquitted defendants accused of violating fugitive slave laws); United States v. Simpson, 460 F.2d 515, 519 (9th Cir. 1972) (stating that, "especially when viewed in hindsight, [all past instances of nullification] cannot reasonably be said to have been undesirable"); United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969) ("Concededly, this power of the jury is not always contrary to the interests of justice."), cert. denied, 397 U.S. 910 (1970); see also supra note 156 (discussing the Zenger trial).
205. Duncan v. Louisiana, 391 U.S. 145, 156 (1968); see Dougherty, 473 F.2d at 1131-32 (noting that juries can exercise their power of nullification when they believe a prosecutor is driven by "unworthy motives").
206. See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993); United States v. Trujillo, 714 F.2d 102, 105 (11th Cir. 1983); United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969), cert. denied, 397 U.S. 991 (1970). The Federal Pattern Jury Instructions describe the division of responsibilities between judges and juries. See supra note 151 and accompanying text.
207. See Sparf, 156 U.S. at 103; see also Strickland v. Washington, 466 U.S. 668, 695 (1984) ("A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed.").
208. Dougherty, 473 F.2d at 1132 (citing Justice Story's opinion in United States v. Battiste as a critical historical turning point).
209. See United States v. Thomas, 116 F.3d 606, 614-15 (2d Cir. 1997); see also Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999) ("We note here that there is no right to jury nullification."); United States v. Horsman, 114 F.3d 822, 829 (8th Cir. 1997) (stating that nullification is a power possessed by jurors, not a "right" possessed by criminal defendants), cert. denied, 522 U.S. 1053 (1998); cf. NORMAN J. FINKEL, COMMONSENSE JUSTICE: JURORS' NOTIONS OF THE LAW 31 (1995) ("Though Sparf appeared to remove the right to nullify, the power to do so still remained with the jury . . . .").
210. Thomas, 116 F.3d at 616.
211. See, e.g., United States v. Trujillo, 714 F.2d 102, 105 (11th Cir. 1983) ("The courts that have considered the question have almost uniformly held that a criminal defendant is not entitled to a jury instruction which points up the existence of [the power of nullification]."); United States v. Simpson, 460 F.2d 515, 519-20 (9th Cir. 1972) (holding that jury instructions on the power of nullification should not be given); United States v. Lucero, 895 F. Supp. 1421, 1426 (D. Kan. 1995) ("As for jury nullification, the court should not encourage the jurors to violate their oath by refusing to apply the law as given in the court's instructions. Therefore, the courts overwhelmingly agree that jury nullification instructions would be improper.") (citations omitted).
212. 473 F.2d 1113 (D.C. Cir. 1972).
213. Id. at 1134.
214. See id. at 1136-37. The court explained: [I]t is pragmatically useful to structure institutions [so] that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions. This requirement of independent jury conception confines the happening of the lawless jury to the occasional instance that does not violate, and viewed as an exception may even enhance, the over-all normative effect of the rule of law. Id. In defending its decision to deny the defendant's request for an instruction on nullification, the court further reasoned that jurors often learn of their power to nullify through the media and other cultural institutions, id. at 1135, and that giving an instruction on the power of nullification would impose "an extreme burden for the jurors' psyche" since it would tell them that they must not only determine the facts, but must also determine the rules under which the defendant may be condemned, id. at 1136.
215. 714 F.2d 102 (11th Cir. 1983).
216. Id. at 106.
217. See, e.g., United States v. Desmarais, 938 F.2d 347, 350 (1st Cir. 1991) (adopting the rule applied in Trujillo); United States v. Brown, 548 F.2d 204, 210 (7th Cir. 1977) (holding that the trial court did not abuse its discretion when it barred the defendant from suggesting the possibility of jury nullification); United States v. Moylan, 417 F.2d 1002, 1005-07 (4th Cir. 1969) (holding that the trial court properly barred the defendants from urging the jury to disregard the court's instruction on the law), cert. denied, 397 U.S. 910 (1970). But see United States v. Datcher, 830 F. Supp. 411, 412-18 (M.D. Tenn. 1993) (holding that the defendant had a Sixth Amendment right to inform the jury of the punishment he would face upon conviction, so that the jury could properly perform its "community oversight" function).
218. See, e.g., United States v. Gorham, 523 F.2d 1088, 1097-98 (D.C. Cir. 1975) (sustaining the trial court's refusal to admit evidence in support of jury nullification, since nullification "undermines the very basis of our legal system"). The Gorham court elaborated, stating that the jury's nullification power provided no basis for disregarding "traditional principles concerning the admissibility of evidence," and that "[t]he right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure." Id.; cf. United States v. Alston, 112 F.3d 32, 36 (1st Cir.) ("[W]e do not think that it is an independent objection to evidence, otherwise properly admissible, that it may incidentally reduce the chance that the jury will nullify the law on its own."), cert. denied, 522 U.S. 999 (1997).
219. 135 F.3d 1405 (11th Cir.), cert. denied, 524 U.S. 962 (1998).
220. Id. at 1408.
221. Id. at 1409; see FED. R. EVID. 402 (stating that "[a]ll relevant evidence is admissible," except as provided by rule, statute, or the Constitution).
222. United States v. Lucero, 895 F. Supp. 1421, 1425-26 (D. Kan. 1995); see FED. R. EVID. 402 ("Evidence which is not relevant is not admissible.").
223. United States v. Best, 476 F. Supp. 34, 48 (D. Colo. 1979).
224. See supra notes 30-35 and accompanying text.
225. See Old Chief v. United States, 519 U.S. 172, 187 (1997).
226. See id. at 188-89.
227. Duane, supra note 8, at 468-69. Thus, Professor Duane suggests, courts might one day hold that a defendant is entitled to present evidence concerning conditions in the local prison or concerning the effect his incarceration would have on his family - all in an effort "to help 'put a human face' on the reasons for our law's seemingly unnatural insistence that a juror must vote to acquit (or hold out for acquittal) if he has a reasonable doubt." Id. In his very brief discussion of the matter, Professor Duane presumes that, under Old Chief, evidence might be admissible solely because it establishes a moral proposition, and that evidence might not need to fall within what the present Article has described as the traditional conception of relevance. See id. at 468-69; see also supra notes 29-44 and accompanying text (discussing the law of relevance). While the Court is admittedly vague, the better reading of Old Chief suggests that evidence must indeed be relevant in the traditional sense. See supra notes 86-102 and accompanying text. Evidence concerning prison conditions or the effects of incarceration on one's family has no logical relation to the defendant's guilt of the crime charged, and so should not be admitted even if one does believe that the rationale in Old Chief should be applied even-handedly to defendants and prosecutors.
228. Old Chief, 519 U.S. at 185 n.8 (emphasis added).
229. The statute makes it unlawful for a person to "possess in or affecting commerce, any firearm or ammunition," if that person "has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." See 18 U.S.C. § 922(g)(1) (1994).
230. See id.
231. If we conclude that the analysis must remain anchored to Congress's moral judgments, see supra notes 109-39 and accompanying text, then assume further for purposes of this hypothetical that the defendant will present an argument that Congress was not concerned with offenses of the "minor" sort at issue here.
232. Even though prejudicial-impact objections are most frequently made by defendants, the prosecution may raise such an objection, as well. See, e.g., United States v. Phibbs, 999 F.2d 1053, 1070 (6th Cir. 1993); United States v. Katz, 494 F. Supp. 1287, 1295 (M.D. Fla. 1980), aff'd, 673 F.2d 1343 (11th Cir. 1982); see also ROTHSTEIN, supra note 49, at 77-78 (discussing the prosecutor's ability to raise an objection under Rule 403).
233. Of course, the issue extends beyond proof of convicted-felon status and prosecutions brought under Section 922(g). Suppose, for example, that a person is charged with growing marijuana in his back yard, then wishes to testify that he was growing the marijuana so that he could give it to a friend who suffers from a terminal illness and who finds that smoking marijuana eases her pain. The Government objects, contending that the defendant's testimony will unfairly prejudice the prosecution. The defendant responds by arguing that the testimony is relevant in the traditional sense because it establishes motive (which in turn makes it more likely that he was indeed growing marijuana plants - he does not mind giving the prosecutor a little assistance on this score), but that it also possesses moral weight because (a) Congress was not principally concerned with medicinal uses of marijuana when it passed the underlying drug legislation and (b) medicinal uses are morally preferable to recreational uses. If the Government objects, may the trial court consider the moral weight of the evidence? The answer will depend in part on whether Old Chief's, analysis requires that evidence be relevant in the traditional sense - a matter discussed supra at notes 86-102 - and in part on whether a defendant may aid the prosecutor by introducing evidence of his motive to violate the law. In other cases, courts have said that defendants' proffered evidence concerning their motives to violate the law is irrelevant. See supra notes 196-98 and accompanying text. Yet if it were offered by the Government, that same evidence presumably would be admitted, on the theory that it makes it more likely that the defendant committed the crime charged. Nothing in the plain language of the Federal Rules of Evidence requires this inconsistency. Rather, the issue should be viewed as one arising under Rule 403. Evidence of a person's motives for trespassing on a nuclear power plant may be inadmissible when it is undisputed that the person trespassed, for example, not because the evidence is irrelevant but because the evidence might be deemed unfairly prejudicial to the Government or a waste of time. See supra notes 197-98 and accompanying text (discussing the trespassing issue). The question presently raised is whether moral considerations might be used to tilt the balance in favor of admitting the evidence.
234. See supra notes 86-102 and accompanying text.
235. See FED. R. EVID. 401; supra notes 29-44 and accompanying text. Even if the Government were permitted to introduce evidence for the sole purpose of discouraging nullification, it does not necessarily follow that defendants must be afforded the opportunity to present evidence for the sole purpose of encouraging nullification. As explained supra at notes 184-98, nullification is not a matter on which the federal courts have treated prosecutors' and defendants' requests even-handedly.
236. Principles of due process are discussed infra at notes 272-92. It should be noted here, however, that the principles of "fair play" that are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments do not require that prosecutors and defendants always be treated identically. A prosecutor, for example, has the power to immunize witnesses, wiretap telephones, and employ other procedural devices that are not available to the defendant. See United States v. Turkish, 623 F.2d 769, 774-75 (2d Cir. 1980) (discussing these matters and stating that "[a] criminal prosecution, unlike a civil trial, is in no sense a symmetrical proceeding"), cert. denied, 449 U.S. 1077 (1981). Principles of due process thus do not require courts to conclude that, any time a prosecutor is permitted to present evidence in part for the purpose of showing the moral reasonableness of conviction, the defendant must be permitted to present evidence for the purpose, in whole or in part, of showing the moral unreasonableness of conviction. In such an instance, the prosecutor and the defendant stand on different footing: one is seeking to enforce the law and the other is seeking to avoid it. The courts have concluded that persons unhappy with the law should address their views to Congress, not to juries. See supra notes 174-83 and accompanying text.
237. See supra notes 184-98 and accompanying text.
238. United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997).
239. Even though the courts have held that defendants do not have a
240. See United States v. Dougherty, 473 F.2d 1113, 1134 (D.C. Cir. 1972); supra notes 186-88 and accompanying text.
241. See generally David A. Harris, The Appearance of Justice: Court TV, Conventional Television, and Public Understanding of the Criminal Justice System, 35 ARIZ. L. REV. 785, 790 (1993) ("[T]he appearance of justice will affect public perception of the system's legitimacy. A system consistently seen as unjust will eventually lose the allegiance of its citizens. If people perceive the courts as less than fair decision makers, the moral force courts depend on to ensure compliance with decisions they make diminishes.").
242. See Sparf v. United States, 156 U.S. 51, 102-03 (1895); supra notes 174-77 and accompanying text.
243. See supra notes 156, 175, 178.
244. Dougherty, 473 F.2d at 1134; see supra notes 186-88 and accompanying text.
245. See United States v. Old Chief, 519 U.S. 172, 187-88 (1997); supra notes 63-64 and accompanying text.
246. See Dougherty, 473 F.2d at 1134.
247. Id. at 1130; supra note 178.
248. 455 U.S. 104 (1982).
249. Id. at 113-15 (discussing the admission of evidence concerning the defendant's violent upbringing).
250. 501 U.S. 808 (1991).
251. Id. at 825.
252. Id. (internal quotations and citations omitted) (first alteration in the original) (overruling Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989)).
253. A point of clarification is in order. This Article has neither attempted to resolve the ongoing debate among commentators about the merits of jury nullification itself nor proposed a means by which the moral appropriateness of guilty verdicts may feasibly be determined. To the contrary, this Article has argued that courts cannot yet feasibly fashion a means for assessing the morality of a guilty verdict in any given case. See supra notes 109-39 and accompanying text. For purposes of the present argument, this Article has taken the courts at their word and assumed that it is important to balance the need to follow the law against the occasional need to acquit a "guilty" defendant in the interests of justice.
254. Federal courts possess the inherent power to control their own proceedings. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991). Moreover, though the Supreme Court may correct errors in state judicial proceedings only when those errors are "of constitutional dimension," see Smith v. Phillips, 455 U.S. 209, 221 (1982), it may rely upon its supervisory authority to correct non-constitutional errors occurring in the lower federal courts. In McNabb v. United States, 318 U.S. 332 (1943), the Court described its supervisory powers with respect to evidentiary matters: The principles governing the admissibility of evidence in federal criminal trials have not been restricted . . . to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts, this Court has, from the very beginning of its history, formulated rules of evidence to be applied in federal criminal prosecutions. And in formulating such rules of evidence for federal criminal trials the Court has been guided by considerations of justice not limited to the strict canons of evidentiary relevance. Id. at 341 (citations omitted). Of course, Congress adopted the Federal Rules of Evidence after McNabb was decided, so the burden of shaping evidentiary rules and defining evidentiary errors no longer falls so heavily upon the courts. Indeed, the Federal Rules of Evidence may limit the Court's ability to exclude relevant evidence or to admit irrelevant evidence pursuant to its supervisory authority. See, e.g., United States v. Mount, 757 F.2d 1315, 1322-23 (D.C. Cir. 1985) (Bork, C.J., concurring) (suggesting that the codification of the Federal Rules of Evidence limits the authority of the federal courts "to exclude relevant evidence solely pursuant to a supervisory power"). But see United States v. Payner, 447 U.S. 727, 734-35 & n.7 (1980) (acknowledging that a federal court may cautiously use its supervisory power to exclude evidence illegally taken from a defendant). Yet this Article does not propose that courts exclude relevant evidence or admit irrelevant evidence in derogation of the Federal Rules of Evidence. Rather, it suggests that (a) courts should perform Rule 403's balancing analysis in a manner that preserves the appearance of fairness in the criminal justice system, and (b) if necessary, the Supreme Court should use its supervisory power to compel recalcitrant federal courts to perform the Rule 403 analysis in such a manner.
255. The Court has occasionally stated explicitly that the Constitution requires that the appearance of fairness be preserved. In Peters v. Kiff, 407 U.S. 493 (1972), for example, the Court declared that a criminal defendant has a due process right to trial by jurors who lack "the appearance of bias," even if the defendant cannot demonstrate that the jurors actually are biased against him. See id. at 501-03; see also Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (holding that a criminal defendant's Sixth Amendment right to trial by an impartial jury includes a right to have the jury drawn from a "fair cross-section" of the community, in part because "[c]ommunity participation in the administration of the criminal law . . . is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system"); Andrew Horwitz, Taking the Cop Out of Copping a Plea: Eradicating Police Prosecution of Criminal Cases, 40 ARIZ. L. REV. 1305, 1365 (1998) (arguing that "the practice of allowing a police officer who is not a licensed attorney to prosecute a criminal case deprives a criminal defendant of due process of law," because the practice "serves to undermine the appearance of fairness in the operation of the criminal justice system"). Given how sharply the federal courts have already slanted the rules relating to jury nullification against criminal defendants, however, it appears highly unlikely that those same courts would (or should) rule that defendants possess a constitutional right to have the probative weight of their evidence enhanced in accordance with its moral probity if the same enhancements are offered to the Government. As this Article points out, jury nullification is not a matter on which the Constitution requires the courts to be even-handed. See supra notes 184-98 and accompanying text. The appearance-of-fairness argument is more wisely cast as (a) an appeal to district courts to exercise their discretion in favor of affording greater leeway to defendants, even though they are not constitutionally required to do so, and (b) an argument to the Supreme Court that, pursuant to its supervisory authority, it should compel the district courts to afford defendants such leeway when necessary to maintain the public's confidence in the judicial system.
256. 451 U.S. 182 (1981).
257. Id. at 189-90 (plurality opinion); see also U.S. CONST. amend. VI.
258. Rosales-Lopez, 451 U.S. at 190 (plurality opinion).
259. Id. (plurality opinion).
260. Id. at 191 n.7 (plurality opinion); see also Georgia v. McCollum, 505 U.S. 42, 49 (1992) (stating that "[p]ublic confidence in the integrity of the criminal justice system is essential for preserving community peace in trials involving race-related crimes").
261. See, e.g., Wheat v. United States, 486 U.S. 153, 160 (1988) (sustaining the trial court's refusal to accept codefendants' waiver of their Sixth Amendment right to be represented by separate counsel, in part because "[f]ederal courts have an independent interest in ensuring that. . . legal proceedings appear fair to all who observe them"); Press-Enters. Co. v. Superior Court of Cal., 464 U.S. 501, 508 (1984) (holding that the First Amendment generally assures the public and the press of access to the proceedings in criminal trials, in part because "[o]penness . . . enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system"); Rose v. Mitchell, 443 U.S. 545, 555-56 (1979) ("Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. . . . The harm is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole."); United States v. Johnson, 323 U.S. 273, 276 (1944) (observing that issues concerning venue in criminal cases "are matters that touch closely the fair administration of criminal justice and public confidence in it, on which it ultimately rests"); United States v. Antar, 53 F.3d 568, 579 (3d Cir. 1995) (holding that a judge's refusal to recuse himself from a criminal trial was error, in part because his failure to do so "ha[d] the appearance of affecting the fairness and integrity of the trial"); United States v. Prantil, 764 F.2d 548, 553 (9th Cir. 1985) (holding that a prosecutor ordinarily should not be permitted to testify as a witness in a case that she is prosecuting, in part because there is "an institutional concern, especially pronounced when the government is a litigant, that public confidence in our criminal justice system not be eroded by even the appearance of impropriety").
262. See supra notes 228-35 and accompanying text.
263. Of course, if unpopular verdicts are increasingly attributed to jury nullification, the public's sense of fairness may instead weigh strongly against granting defendants such latitude. See Brody, supra note 169, at 89 (noting that the acquittals of "O.J. Simpson, Marion Barry, Oliver North, Lorena Bobbitt, the Menendez brothers, and the Los Angeles police officers accused of beating Rodney King . . . were vociferously denounced in the media and spawned widespread criticism that juries are running amok and refusing to follow the law"). These are matters that a court would have to consider in the particular circumstances of each case.
264. See supra notes 203-07 and accompanying text.
265. As explained supra at notes 109-39, it is not clear by what standard a judge should determine whether the evidence has any tendency to show that it would be morally unreasonable to punish the defendant for his actions.
266. See supra note 237.
267. See, e.g., Brody, supra note 169, at 89-90 (discussing bills and constitutional amendments introduced in ten state legislatures during the first half of 1995).
268. See Joan Biskupic, Injury Rooms, a Form of Civil Protest Grows; Activists Registering Disdain for Laws With a "Not Guilty, " WASH. POST, Feb. 8, 1999, at A1 ("When it was first formed in a desolate Montana hamlet 10 years ago, the Fully Informed Jury Association could conduct its business around a kitchen table. Today, it claims 6,000 devotees nationwide who help spread the word - through the Internet, mass mailings, and courthouse leafleting - that jurors should act on their own morality. And that clarion call, as well as the effect of members' work in today's courtrooms, is beginning to gain attention."); Clay S. Conrad, Jury Nullification: Jurors Flex Their Muscles, USA TODAY (MAGAZINE), Nov. 1, 1999, at 30 (making arguments in favor of jury nullification and stating that the article's author is a member of the Fully Informed Jury Association's board of directors).
269. See Joan Biskupic, Injury Rooms, a Form of Civil Protest Grows; Activists Registering Disdain for Laws With a "Not Guilty, " WASH. POST, Feb. 8, 1999, at A1 ("When it was first formed in a desolate Montana hamlet 10 years ago, the Fully Informed Jury Association could conduct its business around a kitchen table. Today, it claims 6,000 devotees nationwide who help spread the word - through the Internet, mass mailings, and courthouse leafleting - that jurors should act on their own morality. And that clarion call, as well as the effect of members' work in today's courtrooms, is beginning to gain attention."); Clay S. Conrad, Jury Nullification: Jurors Flex Their Muscles, USA TODAY (MAGAZINE), Nov. 1, 1999, at 30 (making arguments in favor of jury nullification and stating that the article's author is a member of the Fully Informed Jury Association's board of directors).
270. Indeed, there may be occasions on which the increased risk of prejudice is so great that the defendant's constitutional rights are implicated. Cf. Payne v. Tennessee, 501 U.S. 808, 825 (1991) ("In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.").
271. If, in a given case, a court never saw fit to enhance the probative weight of the Government's evidence, then the defendant's own moral-enhancement argument would be weakened, insofar as the justification for affording the defendant such an enhancement -namely, the need to place the litigants on a level playing field in the public's eyes - is not present. Yet the defendant still might contend that, because the law permits prosecutors as a class to present evidence, at least in part, for the purpose of establishing moral propositions, then it is only fair that defendants as a class be granted the same power. That argument is unpersuasive. It is one thing to say that it is unfair to tie a defendant's hands behind her back when a prosecutor instigates a battle on moral issues; it is quite another to say that it is unfair to bar a defendant from provoking such a battle in the first instance.
272. See FED. R. EVID. 401.
273. See supra notes 30-35 and accompanying text. As explained supra at notes 34-35, evidence is also deemed material if it tends to support or undermine the credibility of a witness. Jury instructions also typically tell jurors that they may make judgments concerning the witnesses' credibility and may choose whether to believe or reject the witnesses' testimony accordingly. See, e.g., SAND, supra note 151, ¶ 7.01 [Instructions 7-1 through 7-23].
274. Because Old Chief attempted to explain the long-standing principle that ordinarily permits prosecutors to reject defendants' stipulations, one might argue that the noted symmetry never really existed. That is, one might argue that the federal courts have long recognized that evidence has value if it carries moral weight or satisfies jurors' expectations, and that the courts prior to Old Chief permitted prosecutors to reject stipulations accordingly. There are at least three problems with this view. First, the federal courts prior to Old Chief never fully articulated the rationale for the principle at issue. See supra note 52. Second, the uncertainty concerning the principle's rationale was highlighted by the fact that several members of the Old Chief Court believed the principle was better justified on other grounds. See supra note 6 and accompanying text. Third, Old Chief's logic and tone plainly extend to cases in which no stipulation has been offered. See supra notes 106-08 and accompanying text.
275. See supra notes 189-91 and accompanying text. But see United States v. Datcher, 830 F. Supp. 411, 415 (M.D. Tenn. 1993) (holding that the defendant had a Sixth Amendment right to inform the jury of the punishment he would face upon conviction, so that the jury could properly perform its "community oversight" function).
276. A defendant might also argue that he should be permitted to comment on the weaknesses of the Government's moral case in order to restore a sense of balance or to preserve the appearance of fairness in a regime that employs the Enhanced Relevance Model. See supra notes 216-44 and accompanying text.
277. 422 U.S. 853 (1975).
278. See id. at 858-59.
279. Id. at 858; see U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.").
280. Herring, 422 U.S. at 858-59.
281. Id. at 862.
282. Id.
283. United States v. Gaines, 690 F.2d 849, 858 (11th Cir. 1982); see Richardson v. Bowersox, 188 F.3d 973, 980 (8th Cir. 1999) (holding that a trial court may limit the scope of closing arguments to the facts in evidence and the reasonable inferences that may be drawn therefrom, and may prohibit arguments that misrepresent the evidence or the law or that are not based on the evidence introduced during the trial); Virgin Islands v. Commissiong, 706 F. Supp. 1172, 1185 (D.V.I. 1989) ("A trial court has broad discretion to limit the time and scope of closing arguments as long as the defendant is permitted to make all legally tenable arguments supported by the facts brought out at trial."); see also Cole v. Tansy, 926 F.2d 955, 958 (10th Cir. 1991) (holding that the trial court did not err when it prevented the defendant's attorney from offering speculations unrelated to the evidence); United States v. Keskey, 863 F.2d 474, 481 (7th Cir. 1988) ("[A]n attorney's argument is always limited to the facts in evidence, although counsel may make arguments that are reasonably inferred from the evidence.") (citations omitted).
284. Richardson, 188 F.3d at 979 (citations and internal quotations omitted).
285. Gaines, 690 F.2d at 858.
286. United States v. Shaw, 701 F.2d 367, 390 (5th Cir. 1983) (internal quotation omitted), cert. denied, 465 U.S. 1067 (1984).
287. Old Chief v. United States, 519 U.S. 172, 187 (1997) (emphasis added) (internal quotation omitted).
288. See Herring v. New York, 422 U.S. 853, 858 (1975).
289. Id. at 862.
290. If criminal defendants are deemed to possess such a Sixth Amendment right, they will not be the beneficiaries of a windfall. The only occasion on which the Government must rely upon moral arguments to secure the admission of evidence is when the probative value of that evidence - absent moral considerations - would be "substantially outweighed by the danger of unfair prejudice." See FED. R. EVID. 403. Thus, when moral weight is used to secure the admission of evidence, the defendant is being exposed to a greater risk of unfair prejudice than she would otherwise be compelled to confront. See supra note 243 and accompanying text. The opportunity to comment on the moral weight of the Government's evidence thus comes at a high price.
291. Neither courts nor commentators have agreed upon the level of abstraction at which constitutional rights should be framed. As Professor Brest points out, "The fact is that all adjudication requires making choices among the levels of generality on which to articulate principles, and all such choices are inherently non-neutral." Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063, 1091-92 (1981); see also Lawrence G. Sager, Klein's First Principle: A Proposed Solution, 86 GEO. L.J. 2525, 2529-30 n.16 (1998) ("It is of course true that the levels-of-abstraction difficulty plagues constitutional precepts, as it does most normative propositions, and true as well that it is an unhappily fruitful source of disagreement among constitutional judges and other constitutional commentators."). With respect to the role of tradition in constitutional adjudication, for example, Justice Scalia has argued that the Court should "refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989) (Scalia, J., op.). But see Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1085-98 (1990) (criticizingJustice Scalia's formulation of the appropriate test).
292. Neither courts nor commentators have agreed upon the level of abstraction at which constitutional rights should be framed. As Professor Brest points out, "The fact is that all adjudication requires making choices among the levels of generality on which to articulate principles, and all such choices are inherently non-neutral." Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063, 1091-92 (1981); see also Lawrence G. Sager, Klein's First Principle: A Proposed Solution, 86 GEO. L.J. 2525, 2529-30 n.16 (1998) ("It is of course true that the levels-of-abstraction difficulty plagues constitutional precepts, as it does most normative propositions, and true as well that it is an unhappily fruitful source of disagreement among constitutional judges and other constitutional commentators."). With respect to the role of tradition in constitutional adjudication, for example, Justice Scalia has argued that the Court should "refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989) (Scalia, J., op.). But see Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1085-98 (1990) (criticizingJustice Scalia's formulation of the appropriate test).
293. Neither courts nor commentators have agreed upon the level of abstraction at which constitutional rights should be framed. As Professor Brest points out, "The fact is that all adjudication requires making choices among the levels of generality on which to articulate principles, and all such choices are inherently non-neutral." Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063, 1091-92 (1981); see also Lawrence G. Sager, Klein's First Principle: A Proposed Solution, 86 GEO. L.J. 2525, 2529-30 n.16 (1998) ("It is of course true that the levels-of-abstraction difficulty plagues constitutional precepts, as it does most normative propositions, and true as well that it is an unhappily fruitful source of disagreement among constitutional judges and other constitutional commentators."). With respect to the role of tradition in constitutional adjudication, for example, Justice Scalia has argued that the Court should "refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." Michael H. v. Gerald D., 491 U.S. 110, 127-28 n.6 (1989) (Scalia, J., op.). But see Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1085-98 (1990) (criticizingJustice Scalia's formulation of the appropriate test).
294. The other principal class of propositions by which relevancy determinations have long been made concerns the credibility of witnesses. See supra notes 34-35 and accompanying text.
295. See supra notes 245-46 and accompanying text.
296. Herring v. New York, 422 U.S. 853, 862 (1975).
297. See supra notes 154-83 and accompanying text.
298. See supra notes 63-64, 82-85 and accompanying text.
299. See supra notes 46-51 and accompanying text (discussing unfair prejudice).
300. See Herring, 422 U.S. at 862.
301. See U.S. CONST. amend. V ("No person shall . . . be deprived of life, liberty, or property, without due process of law . . . ."). As a general matter, when a court is presented with a due process claim, it must first determine whether the claimant has a "life, liberty, or property" interest at stake. If so, the court must then determine the nature of the "process" to which the claimant is entitled. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985); Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
302. Hannah v. Larche, 363 U.S. 420, 442 (1960).
303. See, e.g., United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (holding that delaying a prosecution in order to obtain a tactical advantage may violate the Due Process Clause because, when the defendant is prejudiced by the delay, the prosecutor has "depart[ed] from fundamental notions of 'fair play'") (quoting United States v. Lovasco, 431 U.S. 783, 795 (1977)); United States v. Sepulveda, 15 F.3d 1161, 1187 (1st Cir. 1993) ("Within the bounds of fair play and due process, prosecutors are not barred from making powerful arguments."); Patrick v. Miller, 953 F.2d 1240, 1244 (10th Cir. 1992) ("The essence of procedural due process is fair play . . . ."); United States v. Cortijo-Diaz, 875 F.2d 13, 15 (1st Cir. 1989) (stating that Rule 404(b) of the Federal Rules of Evidence is "simply a legislative enactment of long-established notions of fair play and due process"); see also Mayberry v. Pennsylvania, 400 U.S. 455, 469 (1971) (Harlan, J., concurring) ("The appearance of even-handed justice . . . is at the core of due process."); Akhil R. Amar, Double Jeopardy Law Made Simple, 106 YALE L.J. 1807, 1841 (1997) (arguing that " [t]he Due Process Clause, with its historic emphasis on fair play, is the obvious constitutional vehicle for implementing" the author's proposals concerning the retrial of criminal defendants).
304. Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
305. In re Oliver, 333 U.S. 257, 273 (1948).
306. Id.
307. Chambers, 410 U.S. at 294.
308. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Of course, this right is not unlimited. In Crane, for example, the Court noted that states may "exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability - even if the defendant would prefer to see that evidence admitted." Id. 280. 424 U.S. 319 (1976).
309. Id. at 335.
310. 470 U.S. 68 (1985).
311. Id. at 83.
312. Id. at 78.
313. Id. at 78-79.
314. Id. at 79-82.
315. See supra notes 237-44 and accompanying text.
316. See supra note 243 and accompanying text.
317. See supra notes 46-51 and accompanying text (discussing the two forms in which unfair prejudice usually appears); supra note 243 and accompanying text (discussing the risk that a defendant may be unfairly prejudiced by morally charged evidence).
318. Ake, 470 U.S. at 79; see supra notes 282-85 and accompanying text.
319. It is true that, if a defendant is permitted to argue that the Government has not made a compelling moral case, the jury might be prompted to nullify the law and acquit the defendant despite overwhelming evidence of the defendant's guilt. Such an outcome plainly would conflict with the Government's strong interest in securing convictions of those who break the law. While this eventuality must be considered when weighing the various Mathews factors, it is not decisive. The risk of wrongful acquittals may continue to be averted by jury instructions that impress upon jurors their duty to apply the law as defined by the court, as well as by restrictions on the scope of the defendant's closing remarks along the lines described infra at note 293.
320. Cf. Ake, 470 U.S. at 78-79 (discussing the cost of providing psychiatric assistance to indigent criminal defendants).
321. See supra notes 189-91 and accompanying text (describing the existing limits on defendants' right to make closing arguments).
322. See supra notes 185-88 and accompanying text.
323. See Old Chief v. United States, 519 U.S. 172, 187 (1997) (internal quotation omitted); supra notes 63-65 and accompanying text.
324. See supra notes 245-47 and accompanying text.
325. See, e.g., United States v. Turner, 189 F.3d 712, 721 (8th Cir. 1999); United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir.), cert. denied, 488 U.S. 866 (1988). Because the content of the instructions is committed to the court's discretion, defendants usually are not entitled to dictate the instructions' precise wording. See, e.g., United States v. Whitehead, 176 F.3d 1030, 1037 (8th Cir. 1999); United States v. Iverson, 162 F.3d 1015, 1025 (9th Cir. 1998); United States v. Goldblatt, 813 F.2d 619, 623 (3d Cir. 1987).
326. The instructions sometimes must meet other requirements on which this Article need not elaborate. See, e.g., Keeble v. United States, 412 U.S. 205, 208 (1973) ("[I]t is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.").
327. Gilbert v. United States, 370 U.S. 650, 653-55 (1962); see also Carter v. Kentucky, 450 U.S. 288, 302 (1981) (stating that jurors "must be accurately instructed in the law"); Iverson, 162 F.3d at 1025 (making the same point). When reviewing jury instructions for legal errors, appellate courts do not focus on phrases in isolation; instead, they seek to determine whether, "taken as a whole, the instruction fairly states the controlling law." United States v. Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990), cert. denied sub nom. Hatcher v. United States, 498 U.S. 1049 (1991); accord United States v. Turner, 189 F.3d 712, 721 (8th Cir. 1999); Goldblatt, 813 F.2d at 623.
328. Carter, 450 U.S. at 302; see id. at 300 (holding that, when a criminal defendant has elected not to testify and fears that the jury will draw an adverse inference from the defendant's silence, "the Fifth Amendment requires that a criminal trial judge must give a 'no adverse inference'jury instruction when requested by a defendant to do so").
329. Goldblatt, 813 F.2d at 623; see also Lakeside v. Oregon, 435 U.S. 333, 340 (1978) (stating that the instructions must "flag the jurors' attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof").
330. Mathews v. United States, 485 U.S. 58, 63 (1988).
331. The United States Court of Appeals for the Ninth Circuit, for example, has occasionally set a very low threshold for the quantum of evidence required in order to necessitate an instruction: The general principle is well established that a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has some foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility. Failure to give such a requested instruction is reversible error. United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir.) (citations omitted), cert. denied, 488 U.S. 866 (1988); see also United States v. Becerra, 992 F.2d 960, 963 (9th Cir. 1993) (reiterating that "[o]nly slight evidence will create the factual issue necessary to get the defense to the jury, even though the evidence is weak, insufficient, inconsistent, or of doubtful credibility") (internal quotation omitted). Yet the Ninth Circuit has also endorsed a more stringent standard: Although the language of some opinions suggests that the merest scintilla of evidence may suffice, such a standard would be irreconcilable with the many cases in which this court and others have refused to instruct on a theory of defense despite the presence of some evidence to support it. The better statement of the standard is that an instruction must be given if there is evidence upon which the jury could rationally sustain the defense. This standard protects the right of the defendant to have the jury weigh the evidence and the credibility of the witnesses when the evidence raises a factual dispute and, at the same time, protects against improper verdicts. United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984) (citations omitted). Other courts have stated that "a criminal defendant is entitled to have a jury instruction on any legal defense to the charge against him which has some foundation in the evidence." United States v. Chen, 933 F.2d 793, 796 (9th Cir. 1991); accord United States v. Wall, 130 F.3d 739, 746 (6th Cir. 1997); United States v. Scafe, 822 F.2d 928, 932 (10th Cir. 1987). The United States Court of Appeals for the Seventh Circuit has adopted a four-part standard for determining whether an instruction on the defendant's theory of the case must be given: A defendant is entitled to an instruction on his theory of the case if: 1) the proffered instruction is a correct statement of the law; 2) the theory of defense is supported by the evidence; 3) the theory of defense is not part of the charge; and 4) the failure to include the instruction would deny the defendant a fair trial. United States v. Fiore, 178 F.3d 917, 922 (7th Cir. 1999); cf. United States v. Whitehead, 176 F.3d 1030, 1037 (8th Cir. 1999) ("A defendant is entitled to a specific jury instruction that conveys the substance of his request if his request is timely, it is supported by evidence in the case, and is a correct statement of the law.") (internal quotation omitted).
332. See supra notes 185-87 and accompanying text.
333. See FED. R. EVID. 401; supra notes 30-35, 41-44 and accompanying text.
334. See supra notes 216-27 and accompanying text.
335. See United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972); supra notes 178-79 and accompanying text.
336. See supra notes 237-43 and accompanying text.
337. See supra notes 272-92 and accompanying text.
338. See FED. R. EVID. 403; supra notes 46-51 and accompanying text.
339. See supra note 293 and accompanying text (arguing that a defendant should be allowed to argue that the Government's evidence fails to establish all of the propositions for which it was offered).
340. To ensure that the defendant is not prejudiced by such an instruction, the jury also should be told that it may not convict the defendant merely because it believes it would be morally reasonable to do so; rather, it may return with a guilty verdict only if it believes that the Government has proven the defendant's guilt on each element of the charged offense beyond a reasonable doubt.
341. See supra notes 174-77 and accompanying text.