The myth of the nullifying jury

Northwestern University Law Review

Volumn 93, Issue 3, 1999, Pages 877-958

  Marder, Nancy S ^a  

^a NONE

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EID: 0043128534     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (517)

1. See People v. Simpson, No. BA097211 (Cal. Super. Ct. 1995).
2. See People v. Powell, No. BA035498 (Cal. Super. Ct. 1991); see also Richard A. Serrano, All 4 Acquitted in King Beating; Verdict Stirs Outrage, L.A. TIMES, Apr. 30, 1992, at A1.
3. See People v. Powell, No. BA035498 (Cal. Super. Ct. 1991); see also Richard A. Serrano, All 4 Acquitted in King Beating; Verdict Stirs Outrage, L.A. TIMES, Apr. 30, 1992, at A1.
4. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
5. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
6. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
7. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well-financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over-whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
8. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
9. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
10. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
11. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
12. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
13. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
14. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
15. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
16. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
17. As one columnist remarked, prior to the verdict in the Simpson trial, "'jury nullification' was just another obscure little doctrine that hardly anyone but lawyers cared about. No more. Barber shops and beauty parlors everywhere are all abuzz with talk of 'jury nullification,' whether they call it by its proper name or not." Clarence Page, O.J. Verdict Rekindles an Old Jury Debate, CINCINNATI POST, Nov. 16, 1995, at 21A. Other journalists also focused on nullification. See, e.g., All Things Considered: Simpson Case Focuses Attention on Jury Nullification (NPR radio broadcast, Oct. 16, 1995), available in 1995 WL 9892228 [hereinafter All Things Considered: Simpson Case] ("The acquittal of O.J. Simpson has renewed interest in the legal concept of jury nullification."); Editorial, Jury in the Simpson Case Sent Resounding Message, STATE J.-REG. (Springfield, 111.), Oct. 5, 1995, at 6 ("In his closing argument, Simpson lead attorney Johnnie Cochran made a thinly veiled appeal for jury nullification - that is, for jurors to look beyond the evidence of the case and to send a message . . . . And that is precisely what the jury did."); Editorial, The Simpson Case: Black and White Justice, S.F. CHRON., Oct. 4, 1995, at A18 ("Although Cochran denies it, many observers concluded that the skill and legal dexterity of the well- financed defense team led to a case of 'jury nullification,' in which jurors were able to dismiss over- whelming evidence of guilt."); Robert Marquand & Daniel B. Wood, Lessons Drawn From Simpson in Black, White, CHRISTIAN SCI. MONITOR, Oct. 5, 1995, at 1 ("'Jury nullification' is the legal buzzword of the hour."); Mark Whitaker, Whites v. Blacks, NEWSWEEK, Oct. 16, 1995, at 28, available in 1995 WL 14646939 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.") ; Michael Paul Williams, Jury Nullification Question is Fallout of Simpson Trial, RICHMOND TlMES-DISPATCH, June 3, 1996, at B1 ("Jury nullification became part of our national vocabulary after the verdict in the O.J. Simpson trial."). Jury nullification was also one explanation offered to help the public make sense of the acquittals of Stacey Koon and Laurence Powell. See, e.g., Gail Appleson, King Verdict Shakes Faith in Jury System, REUTERS, May 3, 1992 ("Legal experts said the King verdict spotlights one of the most difficult problems to overcome with jurors - a problem they call 'nullification.'"); Jason Berry, Crime Punishment: Why Do Some Juries Condone Criminal Behavior?, DALLAS MORNING NEWS, Feb. 27, 1994, at IJ ("The nullification factor in these cases [including Simi Valley] stemmed from a parochial protectiveness layered in denial."); Alan W. Bock, Criminal Justice: King Beating Started a Cycle of Violence, ORANGE COUNTY REG. (Cal.), May 1, 1992, available in 1992 WL 6349907 ("[W]hat we saw in Simi Valley . . . was a case of surreptitious jury nullification. The jury simply decided, in this case, to ignore the law, although it's unlikely any of them would admit it"); Alan Dershowitz, Once Again, Jury Errs on Defendants ' Side, BUFFALO NEWS, May 5, 1992, at B2 ("[T]he most common manifestation of what has come to be called 'jury nullification' has always been in cases where policemen were charged with the use of excessive force, especially when that force was directed against so-called 'undesirable elements.'") ; Richard Lacayo, Anatomy of an Acquittal, TIME, May 11, 1992, at 30 ("In the eyes of many people, both white and black, it appears that the jury simply chose to nullify the evidence - to put it aside in making their decision - which American law allows."); Michael W. Rosen, Juries Should Have To Follow the Law, COLO. SPRINGS GAZETTE TELEGRAPH, May 17, 1992, at G2 ("If you liked the Rodney King verdict, you'll love jury nullification."); Jerome H. Skolnick, The Jury Was Never Meant To Be Rational, L.A. TIMES, May 1, 1992, at B7 ("The independence of juries is so valued that they are allowed to nullify the evidence and fail to convict, when it is perfectly clear, as in the King trial, that the defendants are guilty.").
18. See United States v. Thomas, 116 F.3d 606 (2d Cir. 1997).
19. See id. at 608, 617.
20. After the Koon/Powell and Simpson verdicts, among others, there were legislative efforts to constrain juries and to make convictions easier to obtain. See Jan Crawford Greenburg & Ginger Orr, Simpson Trial Yields a Verdict Against the System, NEWS TRIB. (Tacoma, Wash.), Oct. 8, 1995, at F1 ("State legislators in California have responded to the [Simpson] trial by introducing legislation to change the jury system. . . . [One change] would do away with the requirement that juries be unanimous in their decisions."); Editorial, The O.J. Simpson Case: A Legal Aberration, S.F. CHRON., Oct. 7, 1995, at A18 ("The Simpson trial and verdict ha[ve] given rise to a host of quick-fix proposals to reform the courts, including one particularly misguided notion to replace unanimous jury verdicts with 10-to-2 decisions.") ; Whitaker, supra note 3. available in 1995 WL 14646939 ("[D]isgust over the Simpson outcome might simply leave whites determined to make it more difficult for black juries to acquit black defendants. Prospects suddenly brightened for a California amendment that would allow 'non-majority' verdicts of 10-2 . . . ."). One proposal debated in California called for abandoning the unanimity required in criminal trials and switching to an 11-1 or 10-2 decision rule. See. e.g., California Blue Ribbon Panel Urges Wide Range of Jury Reforms, WEST'S LEGAL NEWS, May 3, 1996, available in 1996 WL 260677 (announcing the Judicial
21. After the Koon/Powell and Simpson verdicts, among others, there were legislative efforts to constrain juries and to make convictions easier to obtain. See Jan Crawford Greenburg & Ginger Orr, Simpson Trial Yields a Verdict Against the System, NEWS TRIB. (Tacoma, Wash.), Oct. 8, 1995, at F1 ("State legislators in California have responded to the [Simpson] trial by introducing legislation to change the jury system. . . . [One change] would do away with the requirement that juries be unanimous in their decisions."); Editorial, The O.J. Simpson Case: A Legal Aberration, S.F. CHRON., Oct. 7, 1995, at A18 ("The Simpson trial and verdict ha[ve] given rise to a host of quick-fix proposals to reform the courts, including one particularly misguided notion to replace unanimous jury verdicts with 10-to-2 decisions.") ; Whitaker, supra note 3. available in 1995 WL 14646939 ("[D]isgust over the Simpson outcome might simply leave whites determined to make it more difficult for black juries to acquit black defendants. Prospects suddenly brightened for a California amendment that would allow 'non-majority' verdicts of 10-2 . . . ."). One proposal debated in California called for abandoning the unanimity required in criminal trials and switching to an 11-1 or 10-2 decision rule. See. e.g., California Blue Ribbon Panel Urges Wide Range of Jury Reforms, WEST'S LEGAL NEWS, May 3, 1996, available in 1996 WL 260677 (announcing the Judicial Council's Blue Ribbon Commission's proposals for jury reform, which included a recommendation for nonunanimous verdicts); Greg Krikorian, Committee Hearing a Trial by Fire for the Jury System, L.A. TIMES, July 28, 1995, at B3 (describing a proposal by State Senator Charles Calderon (D- Whittier), Chair of the Senate Judiciary Committee, which "would allow 11-1 verdicts in all but capital cases"); Jason L. Riley, Rule of Law: Should a Jury Verdict Be Unanimous?, WALL ST. J., Nov. 22, 1995, at All (recounting California District Attorneys Association's proposal to amend the state's constitution to allow for nonunanimous juries); Wilson Touts Jury Reform, L.A. DAILY NEWS, July 18, 1995, at N4 ("[Gov. Pete] Wilson told a group of prosecuting attorneys . . . that he supports a bill . . . that would allow criminal convictions on a 10-2 vote of jurors in all but death penalty cases."). The purpose behind these efforts was to make it easier for juries to convict and more difficult for one or two jurors, who may be advocating nullification or some other outsider position, to create a hung jury, which adds costs and delays.
22. After the Koon/Powell and Simpson verdicts, among others, there were legislative efforts to constrain juries and to make convictions easier to obtain. See Jan Crawford Greenburg & Ginger Orr, Simpson Trial Yields a Verdict Against the System, NEWS TRIB. (Tacoma, Wash.), Oct. 8, 1995, at F1 ("State legislators in California have responded to the [Simpson] trial by introducing legislation to change the jury system. . . . [One change] would do away with the requirement that juries be unanimous in their decisions."); Editorial, The O.J. Simpson Case: A Legal Aberration, S.F. CHRON., Oct. 7, 1995, at A18 ("The Simpson trial and verdict ha[ve] given rise to a host of quick-fix proposals to reform the courts, including one particularly misguided notion to replace unanimous jury verdicts with 10-to-2 decisions.") ; Whitaker, supra note 3. available in 1995 WL 14646939 ("[D]isgust over the Simpson outcome might simply leave whites determined to make it more difficult for black juries to acquit black defendants. Prospects suddenly brightened for a California amendment that would allow 'non-majority' verdicts of 10-2 . . . ."). One proposal debated in California called for abandoning the unanimity required in criminal trials and switching to an 11-1 or 10-2 decision rule. See. e.g., California Blue Ribbon Panel Urges Wide Range of Jury Reforms, WEST'S LEGAL NEWS, May 3, 1996, available in 1996 WL 260677 (announcing the Judicial Council's Blue Ribbon Commission's proposals for jury reform, which included a recommendation for nonunanimous verdicts); Greg Krikorian, Committee Hearing a Trial by Fire for the Jury System, L.A. TIMES, July 28, 1995, at B3 (describing a proposal by State Senator Charles Calderon (D- Whittier), Chair of the Senate Judiciary Committee, which "would allow 11-1 verdicts in all but capital cases"); Jason L. Riley, Rule of Law: Should a Jury Verdict Be Unanimous?, WALL ST. J., Nov. 22, 1995, at All (recounting California District Attorneys Association's proposal to amend the state's constitution to allow for nonunanimous juries); Wilson Touts Jury Reform, L.A. DAILY NEWS, July 18, 1995, at N4 ("[Gov. Pete] Wilson told a group of prosecuting attorneys . . . that he supports a bill . . . that would allow criminal convictions on a 10-2 vote of jurors in all but death penalty cases."). The purpose behind these efforts was to make it easier for juries to convict and more difficult for one or two jurors, who may be advocating nullification or some other outsider position, to create a hung jury, which adds costs and delays.
23. After the Koon/Powell and Simpson verdicts, among others, there were legislative efforts to constrain juries and to make convictions easier to obtain. See Jan Crawford Greenburg & Ginger Orr, Simpson Trial Yields a Verdict Against the System, NEWS TRIB. (Tacoma, Wash.), Oct. 8, 1995, at F1 ("State legislators in California have responded to the [Simpson] trial by introducing legislation to change the jury system. . . . [One change] would do away with the requirement that juries be unanimous in their decisions."); Editorial, The O.J. Simpson Case: A Legal Aberration, S.F. CHRON., Oct. 7, 1995, at A18 ("The Simpson trial and verdict ha[ve] given rise to a host of quick-fix proposals to reform the courts, including one particularly misguided notion to replace unanimous jury verdicts with 10-to-2 decisions.") ; Whitaker, supra note 3. available in 1995 WL 14646939 ("[D]isgust over the Simpson outcome might simply leave whites determined to make it more difficult for black juries to acquit black defendants. Prospects suddenly brightened for a California amendment that would allow 'non-majority' verdicts of 10-2 . . . ."). One proposal debated in California called for abandoning the unanimity required in criminal trials and switching to an 11-1 or 10-2 decision rule. See. e.g., California Blue Ribbon Panel Urges Wide Range of Jury Reforms, WEST'S LEGAL NEWS, May 3, 1996, available in 1996 WL 260677 (announcing the Judicial Council's Blue Ribbon Commission's proposals for jury reform, which included a recommendation for nonunanimous verdicts); Greg Krikorian, Committee Hearing a Trial by Fire for the Jury System, L.A. TIMES, July 28, 1995, at B3 (describing a proposal by State Senator Charles Calderon (D- Whittier), Chair of the Senate Judiciary Committee, which "would allow 11-1 verdicts in all but capital cases"); Jason L. Riley, Rule of Law: Should a Jury Verdict Be Unanimous?, WALL ST. J., Nov. 22, 1995, at All (recounting California District Attorneys Association's proposal to amend the state's constitution to allow for nonunanimous juries); Wilson Touts Jury Reform, L.A. DAILY NEWS, July 18, 1995, at N4 ("[Gov. Pete] Wilson told a group of prosecuting attorneys . . . that he supports a bill . . . that would allow criminal convictions on a 10-2 vote of jurors in all but death penalty cases."). The purpose behind these efforts was to make it easier for juries to convict and more difficult for one or two jurors, who may be advocating nullification or some other outsider position, to create a hung jury, which adds costs and delays.
24. After the Koon/Powell and Simpson verdicts, among others, there were legislative efforts to constrain juries and to make convictions easier to obtain. See Jan Crawford Greenburg & Ginger Orr, Simpson Trial Yields a Verdict Against the System, NEWS TRIB. (Tacoma, Wash.), Oct. 8, 1995, at F1 ("State legislators in California have responded to the [Simpson] trial by introducing legislation to change the jury system. . . . [One change] would do away with the requirement that juries be unanimous in their decisions."); Editorial, The O.J. Simpson Case: A Legal Aberration, S.F. CHRON., Oct. 7, 1995, at A18 ("The Simpson trial and verdict ha[ve] given rise to a host of quick-fix proposals to reform the courts, including one particularly misguided notion to replace unanimous jury verdicts with 10-to-2 decisions.") ; Whitaker, supra note 3. available in 1995 WL 14646939 ("[D]isgust over the Simpson outcome might simply leave whites determined to make it more difficult for black juries to acquit black defendants. Prospects suddenly brightened for a California amendment that would allow 'non-majority' verdicts of 10-2 . . . ."). One proposal debated in California called for abandoning the unanimity required in criminal trials and switching to an 11-1 or 10-2 decision rule. See. e.g., California Blue Ribbon Panel Urges Wide Range of Jury Reforms, WEST'S LEGAL NEWS, May 3, 1996, available in 1996 WL 260677 (announcing the Judicial Council's Blue Ribbon Commission's proposals for jury reform, which included a recommendation for nonunanimous verdicts); Greg Krikorian, Committee Hearing a Trial by Fire for the Jury System, L.A. TIMES, July 28, 1995, at B3 (describing a proposal by State Senator Charles Calderon (D-Whittier), Chair of the Senate Judiciary Committee, which "would allow 11-1 verdicts in all but capital cases"); Jason L. Riley, Rule of Law: Should a Jury Verdict Be Unanimous?, WALL ST. J., Nov. 22, 1995, at All (recounting California District Attorneys Association's proposal to amend the state's constitution to allow for nonunanimous juries); Wilson Touts Jury Reform, L.A. DAILY NEWS, July 18, 1995, at N4 ("[Gov. Pete] Wilson told a group of prosecuting attorneys . . . that he supports a bill . . . that would allow criminal convictions on a 10-2 vote of jurors in all but death penalty cases."). The purpose behind these efforts was to make it easier for juries to convict and more difficult for one or two jurors, who may be advocating nullification or some other outsider position, to create a hung jury, which adds costs and delays.
25. After the Koon/Powell and Simpson verdicts, among others, there were legislative efforts to constrain juries and to make convictions easier to obtain. See Jan Crawford Greenburg & Ginger Orr, Simpson Trial Yields a Verdict Against the System, NEWS TRIB. (Tacoma, Wash.), Oct. 8, 1995, at F1 ("State legislators in California have responded to the [Simpson] trial by introducing legislation to change the jury system. . . . [One change] would do away with the requirement that juries be unanimous in their decisions."); Editorial, The O.J. Simpson Case: A Legal Aberration, S.F. CHRON., Oct. 7, 1995, at A18 ("The Simpson trial and verdict ha[ve] given rise to a host of quick-fix proposals to reform the courts, including one particularly misguided notion to replace unanimous jury verdicts with 10-to-2 decisions.") ; Whitaker, supra note 3. available in 1995 WL 14646939 ("[D]isgust over the Simpson outcome might simply leave whites determined to make it more difficult for black juries to acquit black defendants. Prospects suddenly brightened for a California amendment that would allow 'non-majority' verdicts of 10-2 . . . ."). One proposal debated in California called for abandoning the unanimity required in criminal trials and switching to an 11-1 or 10-2 decision rule. See. e.g., California Blue Ribbon Panel Urges Wide Range of Jury Reforms, WEST'S LEGAL NEWS, May 3, 1996, available in 1996 WL 260677 (announcing the Judicial Council's Blue Ribbon Commission's proposals for jury reform, which included a recommendation for nonunanimous verdicts); Greg Krikorian, Committee Hearing a Trial by Fire for the Jury System, L.A. TIMES, July 28, 1995, at B3 (describing a proposal by State Senator Charles Calderon (D- Whittier), Chair of the Senate Judiciary Committee, which "would allow 11-1 verdicts in all but capital cases"); Jason L. Riley, Rule of Law: Should a Jury Verdict Be Unanimous?, WALL ST. J., Nov. 22, 1995, at All (recounting California District Attorneys Association's proposal to amend the state's constitution to allow for nonunanimous juries); Wilson Touts Jury Reform, L.A. DAILY NEWS, July 18, 1995, at N4 ("[Gov. Pete] Wilson told a group of prosecuting attorneys . . . that he supports a bill . . . that would allow criminal convictions on a 10-2 vote of jurors in all but death penalty cases."). The purpose behind these efforts was to make it easier for juries to convict and more difficult for one or two jurors, who may be advocating nullification or some other outsider position, to create a hung jury, which adds costs and delays.
26. After the Koon/Powell and Simpson verdicts, among others, there were legislative efforts to constrain juries and to make convictions easier to obtain. See Jan Crawford Greenburg & Ginger Orr, Simpson Trial Yields a Verdict Against the System, NEWS TRIB. (Tacoma, Wash.), Oct. 8, 1995, at F1 ("State legislators in California have responded to the [Simpson] trial by introducing legislation to change the jury system. . . . [One change] would do away with the requirement that juries be unanimous in their decisions."); Editorial, The O.J. Simpson Case: A Legal Aberration, S.F. CHRON., Oct. 7, 1995, at A18 ("The Simpson trial and verdict ha[ve] given rise to a host of quick-fix proposals to reform the courts, including one particularly misguided notion to replace unanimous jury verdicts with 10-to-2 decisions.") ; Whitaker, supra note 3. available in 1995 WL 14646939 ("[D]isgust over the Simpson outcome might simply leave whites determined to make it more difficult for black juries to acquit black defendants. Prospects suddenly brightened for a California amendment that would allow 'non-majority' verdicts of 10-2 . . . ."). One proposal debated in California called for abandoning the unanimity required in criminal trials and switching to an 11-1 or 10-2 decision rule. See. e.g., California Blue Ribbon Panel Urges Wide Range of Jury Reforms, WEST'S LEGAL NEWS, May 3, 1996, available in 1996 WL 260677 (announcing the Judicial Council's Blue Ribbon Commission's proposals for jury reform, which included a recommendation for nonunanimous verdicts); Greg Krikorian, Committee Hearing a Trial by Fire for the Jury System, L.A. TIMES, July 28, 1995, at B3 (describing a proposal by State Senator Charles Calderon (D- Whittier), Chair of the Senate Judiciary Committee, which "would allow 11-1 verdicts in all but capital cases"); Jason L. Riley, Rule of Law: Should a Jury Verdict Be Unanimous?, WALL ST. J., Nov. 22, 1995, at All (recounting California District Attorneys Association's proposal to amend the state's constitution to allow for nonunanimous juries); Wilson Touts Jury Reform, L.A. DAILY NEWS, July 18, 1995, at N4 ("[Gov. Pete] Wilson told a group of prosecuting attorneys . . . that he supports a bill . . . that would allow criminal convictions on a 10-2 vote of jurors in all but death penalty cases."). The purpose behind these efforts was to make it easier for juries to convict and more difficult for one or two jurors, who may be advocating nullification or some other outsider position, to create a hung jury, which adds costs and delays.
27. See FED. R. CRIM. P. 29 ("Motion for Judgment of Acquittal").
28. See FED. R. CRIM. P. 29(a) ("The court . . . shall order the entry of judgment of acquittal . . . after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.").
29. See U.S. CONST. amend. V ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb").
30. See, e.g., Barry Gewen, The Second Time Around, N.Y. TIMES BOOK REV., June 14, 1998, at 12 (reviewing DANIEL PETROCELLI WITH PETER KNOBLER, TRIUMPH OF JUSTICE: THE FINAL JUDGMENT ON THE SIMPSON SAGA (1998)) ("Like the trials of Lemrick Nelson Jr. in the Crown Heights killing and the police officers in the Rodney King affair, the Simpson case may not have been in any legal sense an example of double jeopardy, yet it does seem in some other sense to violate the spirit of the double jeopardy ban. In all three instances, prosecutors, or prosecutor surrogates, essentially got to retry cases that had been lost the first time around, and to learn from the mistakes of their predecessors.").
31. I leave consideration of jury nullification in these other contexts (civil cases and criminal convictions) to future articles.
32. I say "can" because I recognize that as a practical matter, a judge may be reluctant to grant a motion for judgment of acquittal after a jury has returned a verdict of guilty, even though the judge has the power to do so. See, e.g., Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563 (1997) (claiming that judges may have the power to grant a motion for judgment of acquittal but are reluctant to exercise that power as a practical matter); Eleanor Tavris, The Law of an Unwritten Law: A Common Sense View of Jury Nullification, 11 W. ST. U. L. REV. 97, 112 (1983) (questioning whether judges would overturn nullification convictions as a practical matter).
33. I say "can" because I recognize that as a practical matter, a judge may be reluctant to grant a motion for judgment of acquittal after a jury has returned a verdict of guilty, even though the judge has the power to do so. See, e.g., Richard St. John, Note, License to Nullify: The Democratic and Constitutional Deficiencies of Authorized Jury Lawmaking, 106 YALE L.J. 2563 (1997) (claiming that judges may have the power to grant a motion for judgment of acquittal but are reluctant to exercise that power as a practical matter); Eleanor Tavris, The Law of an Unwritten Law: A Common Sense View of Jury Nullification, 11 W. ST. U. L. REV. 97, 112 (1983) (questioning whether judges would overturn nullification convictions as a practical matter).
34. Jurors are unlikely to use the word nullification because they are never informed about it by the judge. See infra note 127 (referring to federal circuits and state cases explaining that courts do not instruct on nullification). They may, however, become familiar with it through the grassroots educational efforts of the Fully Informed Jury Association (FIJA). See infra text accompanying notes 285-89. But even if they do not know the word, they may be familiar with the concept, and express their intent to nullify as an effort "to do justice" or "to act according to their conscience." See Frontline: Inside the Jury Room (WGBH broadcast, Apr. 8, 1986) (transcript at 15) [hereinafter Inside the Jury Room transcript] ("I'm trying to decide in my own mind - has justice been done here?") (quoting Juror Lester Sauvage, who was part of a nullifying jury); infra notes 203-19 and accompanying text (describing the jury's deliberations in Inside the Jury Room); CBS Reports: Enter the Jury Room (CBS broadcast, Apr. 16, 1997) (transcript at 43) [hereinafter Enter the Jury Room transcript] ("And [our verdict] has to have nothing to do with justice?") (quoting juror named "Joe" who was urging nullification); id. at 49 ("I was not going to do something that was against my beliefs and conscience . . . .") (quoting Joe).
35. Jurors are unlikely to use the word nullification because they are never informed about it by the judge. See infra note 127 (referring to federal circuits and state cases explaining that courts do not instruct on nullification). They may, however, become familiar with it through the grassroots educational efforts of the Fully Informed Jury Association (FIJA). See infra text accompanying notes 285-89. But even if they do not know the word, they may be familiar with the concept, and express their intent to nullify as an effort "to do justice" or "to act according to their conscience." See Frontline: Inside the Jury Room (WGBH broadcast, Apr. 8, 1986) (transcript at 15) [hereinafter Inside the Jury Room transcript] ("I'm trying to decide in my own mind - has justice been done here?") (quoting Juror Lester Sauvage, who was part of a nullifying jury); infra notes 203-19 and accompanying text (describing the jury's deliberations in Inside the Jury Room); CBS Reports: Enter the Jury Room (CBS broadcast, Apr. 16, 1997) (transcript at 43) [hereinafter Enter the Jury Room transcript] ("And [our verdict] has to have nothing to do with justice?") (quoting juror named "Joe" who was urging nullification); id. at 49 ("I was not going to do something that was against my beliefs and conscience . . . .") (quoting Joe).
36. Juries are less likely, however, to make mistakes when they are of sufficient size, representative in composition, and fairly selected. See, e.g., Ballew v. Georgia, 435 U.S. 223, 232-38 (1978) (concluding that reducing the jury in a state criminal trial to five members would reduce the amount of evidence accurately recalled by and available to the jurors, hinder effective jury deliberations, increase the likelihood of erroneous decisions, weaken the minority's ability to defend its view, and decrease the representation of minorities on the jury).
37. See, e.g., United States v. Dougherty, 473 F.2d 1113, 1117 (D.C. Cir. 1972) (describing the case of Vietnam war protesters who broke into the Dow Chemical Company offices and vandalized furniture and smeared a blood-like substance around the office in protest of Dow's manufacture of napalm).
38. I do not mean to equate nullification with civil disobedience because nullification is within the scope of the jury's role and does not require breaking the law in any way. Others, however, have described nullification as a form of civil disobedience. See, e.g., Dougherty, 473 F.2d at 1130 (Leventhal, J.); see also David Farnham, Jury Nullification: History Proves It's Not a New Idea, CRIM. JUST., Winter 1997, at 4, 6 (describing the jurors who had nullified in the 1554 trial of Sir Nicholas Throckmorton, charged with treason, and who stood by their verdict even though it meant imprisonment and fines for them because they had "exercised a power to which they had no right, and, much like practitioners of civil disobedience in later centuries, they had to pay the price"). I simply wish to make the point that intent matters when it comes to nullification. Even the Second Circuit recognized the importance of intent when it described the nullifying juror as one who exhibited a "purposeful refusal to apply the law" and who could be dismissed for "purposeful disobedience." United States v. Thomas, 116 F.3d 606, 617, 618 (2d Cir. 1997) (emphasis added).
39. See, e.g., ABA/BROOKINGS INST., CHARTING A FUTURE FOR THE CIVIL JURY SYSTEM 18-19 (1992) (recommending notetaking); SAUL M. KASSIN & LAWRENCE S. WRIGHTSMAN, THE AMERICAN JURY ON TRIAL 128-29 (1988) (considering why there is so much resistance to allowing jurors to take notes); David Margolick, A Call for the Jurors to Take Bigger Roles in Trials, N.Y. TIMES, Jan. 1, 1993, at A19 (reporting on notetaking recommendation).
40. See, e.g., ABA/BROOKINGS INST., CHARTING A FUTURE FOR THE CIVIL JURY SYSTEM 18-19 (1992) (recommending notetaking); SAUL M. KASSIN & LAWRENCE S. WRIGHTSMAN, THE AMERICAN JURY ON TRIAL 128-29 (1988) (considering why there is so much resistance to allowing jurors to take notes); David Margolick, A Call for the Jurors to Take Bigger Roles in Trials, N.Y. TIMES, Jan. 1, 1993, at A19 (reporting on notetaking recommendation).
41. See, e.g., ABA/BROOKINGS INST., CHARTING A FUTURE FOR THE CIVIL JURY SYSTEM 18-19 (1992) (recommending notetaking); SAUL M. KASSIN & LAWRENCE S. WRIGHTSMAN, THE AMERICAN JURY ON TRIAL 128-29 (1988) (considering why there is so much resistance to allowing jurors to take notes); David Margolick, A Call for the Jurors to Take Bigger Roles in Trials, N.Y. TIMES, Jan. 1, 1993, at A19 (reporting on notetaking recommendation).
42. See, e.g., ABA/BROOKINGS INST., supra note 20, at 24-25; THE ARIZ. SUPREME COURT COMM. ON MORE EFFECTIVE USE OF JURIES, JURORS: THE POWER OF 12 (1994) [hereinafter THE POWER OF 12] (including a list of recommendations and a proposed bill of rights); Harold J. Bursztajn et al., Keeping a Jury Involved During a Long Trial, CRIM. JUST., Winter 1997, at 8 (recommending that jurors be permitted to ask questions because it keeps them actively engaged in the trial, which will in turn lead to more well-reasoned, rather than emotional, decisionmaking); B. Michael Dann & George Logan III, Jury Reform: The Arizona Experience, 79 JUDICATURE 280 (1994) (describing some of Arizona's more controversial reforms to its jury system, including giving jurors preliminary jury instructions, allowing them to ask questions in writing, telling jurors that they can discuss the evidence before the close of trial in a civil case, giving judges discretion about the timing of instructions, and having the judge and jury engage in a dialogue if the jury has reached an impasse); see also William H. Carlile, Arizona Jury Reforms Buck Legal Traditions, CHRISTIAN SCI. MONITOR, Feb. 22, 1996, at 1 (reporting that Arizona has adopted 18 of the jury reform panel's 55 recommendations); Junda Woo, Arizona Panel Suggests Jury Reforms, WALL ST. J., Oct. 25, 1994, at B12 (describing the proposals of a reform panel, headed by Judge B. Michael Dann).
43. See, e.g., ABA/BROOKINGS INST., supra note 20, at 24-25; THE ARIZ. SUPREME COURT COMM. ON MORE EFFECTIVE USE OF JURIES, JURORS: THE POWER OF 12 (1994) [hereinafter THE POWER OF 12] (including a list of recommendations and a proposed bill of rights); Harold J. Bursztajn et al., Keeping a Jury Involved During a Long Trial, CRIM. JUST., Winter 1997, at 8 (recommending that jurors be permitted to ask questions because it keeps them actively engaged in the trial, which will in turn lead to more well-reasoned, rather than emotional, decisionmaking); B. Michael Dann & George Logan III, Jury Reform: The Arizona Experience, 79 JUDICATURE 280 (1994) (describing some of Arizona's more controversial reforms to its jury system, including giving jurors preliminary jury instructions, allowing them to ask questions in writing, telling jurors that they can discuss the evidence before the close of trial in a civil case, giving judges discretion about the timing of instructions, and having the judge and jury engage in a dialogue if the jury has reached an impasse); see also William H. Carlile, Arizona Jury Reforms Buck Legal Traditions, CHRISTIAN SCI. MONITOR, Feb. 22, 1996, at 1 (reporting that Arizona has adopted 18 of the jury reform panel's 55 recommendations); Junda Woo, Arizona Panel Suggests Jury Reforms, WALL ST. J., Oct. 25, 1994, at B12 (describing the proposals of a reform panel, headed by Judge B. Michael Dann).
44. See, e.g., ABA/BROOKINGS INST., supra note 20, at 24-25; THE ARIZ. SUPREME COURT COMM. ON MORE EFFECTIVE USE OF JURIES, JURORS: THE POWER OF 12 (1994) [hereinafter THE POWER OF 12] (including a list of recommendations and a proposed bill of rights); Harold J. Bursztajn et al., Keeping a Jury Involved During a Long Trial, CRIM. JUST., Winter 1997, at 8 (recommending that jurors be permitted to ask questions because it keeps them actively engaged in the trial, which will in turn lead to more well-reasoned, rather than emotional, decisionmaking); B. Michael Dann & George Logan III, Jury Reform: The Arizona Experience, 79 JUDICATURE 280 (1994) (describing some of Arizona's more controversial reforms to its jury system, including giving jurors preliminary jury instructions, allowing them to ask questions in writing, telling jurors that they can discuss the evidence before the close of trial in a civil case, giving judges discretion about the timing of instructions, and having the judge and jury engage in a dialogue if the jury has reached an impasse); see also William H. Carlile, Arizona Jury Reforms Buck Legal Traditions, CHRISTIAN SCI. MONITOR, Feb. 22, 1996, at 1 (reporting that Arizona has adopted 18 of the jury reform panel's 55 recommendations); Junda Woo, Arizona Panel Suggests Jury Reforms, WALL ST. J., Oct. 25, 1994, at B12 (describing the proposals of a reform panel, headed by Judge B. Michael Dann).
45. See, e.g., ABA/BROOKINGS INST., supra note 20, at 24-25; THE ARIZ. SUPREME COURT COMM. ON MORE EFFECTIVE USE OF JURIES, JURORS: THE POWER OF 12 (1994) [hereinafter THE POWER OF 12] (including a list of recommendations and a proposed bill of rights); Harold J. Bursztajn et al., Keeping a Jury Involved During a Long Trial, CRIM. JUST., Winter 1997, at 8 (recommending that jurors be permitted to ask questions because it keeps them actively engaged in the trial, which will in turn lead to more well-reasoned, rather than emotional, decisionmaking); B. Michael Dann & George Logan III, Jury Reform: The Arizona Experience, 79 JUDICATURE 280 (1994) (describing some of Arizona's more controversial reforms to its jury system, including giving jurors preliminary jury instructions, allowing them to ask questions in writing, telling jurors that they can discuss the evidence before the close of trial in a civil case, giving judges discretion about the timing of instructions, and having the judge and jury engage in a dialogue if the jury has reached an impasse); see also William H. Carlile, Arizona Jury Reforms Buck Legal Traditions, CHRISTIAN SCI. MONITOR, Feb. 22, 1996, at 1 (reporting that Arizona has adopted 18 of the jury reform panel's 55 recommendations); Junda Woo, Arizona Panel Suggests Jury Reforms, WALL ST. J., Oct. 25, 1994, at B12 (describing the proposals of a reform panel, headed by Judge B. Michael Dann).
46. See, e.g., AMIRAM ELWORK ET AL., MAKING JURY INSTRUCTIONS UNDERSTANDABLE 6-24 (1982); Fred H. Cate & Newton N. Minow, Communicating with Juries, 68 IND. L.J. 1101, 1101-02, 1105-12, 1117-18 (1993); Robert F. Forston, Sense and Non-Sense: Jury Trial Communication, 1975 BYU L. REV. 601, 601-06, 616-23; see also Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV. 1 (1993) (describing confusion experienced by jurors trying to understand instructions in capital cases); Arthur S. Hayes, Jurors' Grasp of Instructions May Stir Appeal, WALL ST. J., July 16, 1992, at B1.
47. See, e.g., AMIRAM ELWORK ET AL., MAKING JURY INSTRUCTIONS UNDERSTANDABLE 6-24 (1982); Fred H. Cate & Newton N. Minow, Communicating with Juries, 68 IND. L.J. 1101, 1101-02, 1105-12, 1117-18 (1993); Robert F. Forston, Sense and Non-Sense: Jury Trial Communication, 1975 BYU L. REV. 601, 601-06, 616-23; see also Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV. 1 (1993) (describing confusion experienced by jurors trying to understand instructions in capital cases); Arthur S. Hayes, Jurors' Grasp of Instructions May Stir Appeal, WALL ST. J., July 16, 1992, at B1.
48. See, e.g., AMIRAM ELWORK ET AL., MAKING JURY INSTRUCTIONS UNDERSTANDABLE 6-24 (1982); Fred H. Cate & Newton N. Minow, Communicating with Juries, 68 IND. L.J. 1101, 1101-02, 1105-12, 1117-18 (1993); Robert F. Forston, Sense and Non-Sense: Jury Trial Communication, 1975 BYU L. REV. 601, 601-06, 616-23; see also Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV. 1 (1993) (describing confusion experienced by jurors trying to understand instructions in capital cases); Arthur S. Hayes, Jurors' Grasp of Instructions May Stir Appeal, WALL ST. J., July 16, 1992, at B1.
49. See, e.g., AMIRAM ELWORK ET AL., MAKING JURY INSTRUCTIONS UNDERSTANDABLE 6-24 (1982); Fred H. Cate & Newton N. Minow, Communicating with Juries, 68 IND. L.J. 1101, 1101-02, 1105-12, 1117-18 (1993); Robert F. Forston, Sense and Non-Sense: Jury Trial Communication, 1975 BYU L. REV. 601, 601-06, 616-23; see also Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV. 1 (1993) (describing confusion experienced by jurors trying to understand instructions in capital cases); Arthur S. Hayes, Jurors' Grasp of Instructions May Stir Appeal, WALL ST. J., July 16, 1992, at B1.
50. See, e.g., AMIRAM ELWORK ET AL., MAKING JURY INSTRUCTIONS UNDERSTANDABLE 6-24 (1982); Fred H. Cate & Newton N. Minow, Communicating with Juries, 68 IND. L.J. 1101, 1101-02, 1105-12, 1117-18 (1993); Robert F. Forston, Sense and Non-Sense: Jury Trial Communication, 1975 BYU L. REV. 601, 601-06, 616-23; see also Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV. 1 (1993) (describing confusion experienced by jurors trying to understand instructions in capital cases); Arthur S. Hayes, Jurors' Grasp of Instructions May Stir Appeal, WALL ST. J., July 16, 1992, at B1.
51. See, e.g., AMERICAN JUDICATURE SOC'Y, TOWARD MORE ACTIVE JURIES: TAKING NOTES AND ASKING QUESTIONS (1991); KASSIN & WRIGHTSMAN, supra note 20, at 128-31 (describing studies); Leonard B. Sand & Steven Alan Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. REV. 423, 437-59 (1985) (describing experiments with preinstruction, juror questions, juror notetaking, and furnishing jurors with a copy of the charge); Arthur D. Austin, Why Jurors Don't Heed the Trial; A Set of Proposal, NAT'L L.J., Aug. 12, 1985, at 15 (offering proposals based on a study of two antitrust juries).
52. See, e.g., AMERICAN JUDICATURE SOC'Y, TOWARD MORE ACTIVE JURIES: TAKING NOTES AND ASKING QUESTIONS (1991); KASSIN & WRIGHTSMAN, supra note 20, at 128-31 (describing studies); Leonard B. Sand & Steven Alan Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. REV. 423, 437-59 (1985) (describing experiments with preinstruction, juror questions, juror notetaking, and furnishing jurors with a copy of the charge); Arthur D. Austin, Why Jurors Don't Heed the Trial; A Set of Proposal, NAT'L L.J., Aug. 12, 1985, at 15 (offering proposals based on a study of two antitrust juries).
53. See, e.g., AMERICAN JUDICATURE SOC'Y, TOWARD MORE ACTIVE JURIES: TAKING NOTES AND ASKING QUESTIONS (1991); KASSIN & WRIGHTSMAN, supra note 20, at 128-31 (describing studies); Leonard B. Sand & Steven Alan Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. REV. 423, 437-59 (1985) (describing experiments with preinstruction, juror questions, juror notetaking, and furnishing jurors with a copy of the charge); Arthur D. Austin, Why Jurors Don't Heed the Trial; A Set of Proposal, NAT'L L.J., Aug. 12, 1985, at 15 (offering proposals based on a study of two antitrust juries).
54. See, e.g., AMERICAN JUDICATURE SOC'Y, TOWARD MORE ACTIVE JURIES: TAKING NOTES AND ASKING QUESTIONS (1991); KASSIN & WRIGHTSMAN, supra note 20, at 128-31 (describing studies); Leonard B. Sand & Steven Alan Reiss, A Report on Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 N.Y.U. L. REV. 423, 437-59 (1985) (describing experiments with preinstruction, juror questions, juror notetaking, and furnishing jurors with a copy of the charge); Arthur D. Austin, Why Jurors Don't Heed the Trial; A Set of Proposal, NAT'L L.J., Aug. 12, 1985, at 15 (offering proposals based on a study of two antitrust juries).
55. See infra note 127.
56. See infra text accompanying note 131 (quoting sample instruction).
57. See infra subparts VI.A-C.
58. The jurors must be asked because otherwise all that is known is the jury's verdict. See Nancy S. Marder, Deliberations and Disclosures: A Study of Post-Verdict Interviews of Jurors, 82 IOWA L. REV. 465, 472-73 (1997) (describing the power and limits of a jury verdict).
59. Catharine Pierce Wells, Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 MICH. L. REV. 2348, 2402 (1990).
60. Id.
61. See Catharine Wells, Situated Decisionmaking, 63 S. CAL. L. REV. 1727, 1745-46 (1990) ("[Judges'] judgments are relative to a perspective; they are situated in prior experience and affected by normative attitudes.").
62. Wells, supra note 28, at 2402.
63. There are very few circumstances in which judges can question jurors about their verdict. At most in federal court, in cases where juror misconduct has been alleged, jurors can be asked whether "extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." FED. R. EVID. 606(b). Under Fed. R. Evid. 606(b), if a juror misunderstands the judge's instructions, or even feels personally coerced by a fellow juror, such circumstances would be insufficient to justify inquiry into the verdict. See, e.g., Scogin v. Century Fitness, Inc., 780 F.2d 1316, 1320 (8th Cir. 1985); Jacobson v. Henderson, 765 F.2d 12, 14-15 (2d Cir. 1985) (holding that "screaming, hysterical crying, fist banging, name calling, and . . . obscene language" alleged in the jury room is incompetent evidence); United States v. Gerardi, 586 F.2d 896, 898 (1st Cir. 1978) (noting that juror felt "persuaded"). Matters of conscience or mental processes of a juror are supposed to remain inviolate and beyond court scrutiny. However, if a juror were approached by an interested third party, such a situation would fall within the exception for external influences and would be admissible to impeach the verdict See FED. R. EVID. 606(b).
64. Two of the most famous examples of jury nullification are Bushel's Case and the case of Peter Zenger. John Peter Zenger, an American who published critical, but thoughtful articles about the governor, was charged with seditious libel, to which the truth was not a defense. See JEFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 73-74 (1994). Andrew Hamilton represented Zenger and urged the jurors to disobey the instructions and question the law. The jury returned a verdict of not guilty. See id. at 74-75. For a description of Bushel's Case, see infra note 336. In both, the jury believed it was taking the moral high ground. For other more recent examples of juries guided by their moral principles, see infra text accompanying notes 88-107 (discussing juries that nullified based on strongly felt disagreement with the law they were asked to apply).
65. MORTIMER R. KADISH & SANFORD H. KADISH, DISCRETION TO DISOBEY 54 (1973).
66. There have been only two empirical studies to date specifically on nullifying juries, and they do not examine how truthful jurors are about the motivations for their verdicts. See Irwin A. Horowitz, Jury Nullification: The Impact of Judicial Instructions, Arguments, and Challenges on Jury Decision Making, 12 LAW & HUM. BEHAV. 439 (1988) [hereinafter Horowitz, The Impact of Judicial Instructions] (testing the effects on the jury of a judge's instruction or a lawyer's argument on nullification); Irwin A. Horowitz, The Effect of Jury Nullification Instruction on Verdicts and Jury Functioning in Criminal Trials, 9 LAW & HUM. BEHAV. 25 (1985) (testing the effects of nullification information on jury verdicts).
67. There have been only two empirical studies to date specifically on nullifying juries, and they do not examine how truthful jurors are about the motivations for their verdicts. See Irwin A. Horowitz, Jury Nullification: The Impact of Judicial Instructions, Arguments, and Challenges on Jury Decision Making, 12 LAW & HUM. BEHAV. 439 (1988) [hereinafter Horowitz, The Impact of Judicial Instructions] (testing the effects on the jury of a judge's instruction or a lawyer's argument on nullification); Irwin A. Horowitz, The Effect of Jury Nullification Instruction on Verdicts and Jury Functioning in Criminal Trials, 9 LAW & HUM. BEHAV. 25 (1985) (testing the effects of nullification information on jury verdicts).
68. See Alan W. Scheflin, Jury Nullification: The Right To Say No, 45 S. CAL. L. REV. 168, 199 (1972) ("Revelations by jurors after the rendition of the verdict, although somewhat self-serving at that time, furnish some help.").
69. See supra note 3 (providing instances in which the press and public criticized the verdicts of O.J. Simpson and Stacey Koon and Laurence Powell as nullification).
70. The jury in the criminal trial of O.J. Simpson consisted of eight African-American women, one African-American man, two white women, and one Latino man. See Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, available in 1996 WL 9233825 (describing the jury composition); Charles E. Williams, George Will and the Incompetent O.J. Simpson Jury, WASH. AFRO-AM., Dec. 9, 1995, at A5.
71. The jury in the criminal trial of O.J. Simpson consisted of eight African-American women, one African-American man, two white women, and one Latino man. See Jeffrey Rosen, The Bloods and the Crits: O.J. Simpson, Critical Race Theory, the Law, and the Triumph of Color in America, NEW REPUBLIC, Dec. 9, 1996, at 27, available in 1996 WL 9233825 (describing the jury composition); Charles E. Williams, George Will and the Incompetent O.J. Simpson Jury, WASH. AFRO-AM., Dec. 9, 1995, at A5.
72. See Nancy S. Marder, The Interplay of Race and False Claims of Jury Nullification, 32 U. MICH. J.L. REFORM (forthcoming Winter 1999) (describing some mainstream press accounts of the O.J. Simpson verdict as nullification based on racial sympathy).
73. The jury in the state criminal trial of Stacey Koon and Laurence Powell included ten white jurors, one Latina, and one Asian-American. See Richard A. Serrano & Tracy Wilkinson, All 4 in King Beating Acquitted, L.A. TIMES, Apr. 30,1992, at A1. Six of the jurors were men and six were women. See id.
74. See Marder, supra note 39.
75. States were not allowed to exclude African-American men from jury service by virtue of their race after the Supreme Court declared, in Strauder v. West Virginia, 100 U.S. 303 (1879), that such statutes were unconstitutional. However, even when African-American men were officially allowed to serve on the jury, they were often not permitted to serve. See Ware v. State, 225 S.W. 626, 627-28, 631 (Ark. 1920) (holding that the trial court erred in denying appellants' motion to quash the indictment and in refusing to hear evidence on motions to set aside the regular panel of the petit jury because the grand jury by which appellants were indicted "was composed of white men selected by the jury commissioners, who were also white men, negroes being excluded therefrom on account of their color; that the jury commissioners . . . excluded all colored men therefrom solely on account of their color . . . . [and that] the jury commissioners [discriminated] against the colored race in the selection of the petit jury, by which negroes were excluded from that jury solely on account of their color . . . ."); Montgomery v. State, 45 So. 879, 882 (Fla. 1908) (reversing denial of defendant's writ of error, challenging the array, because there was "uncontroverted testimony that the people of one race and color are numerically in the majority in Duval county . . . that about two-thirds of the men of that race are of fair character, sound judgment and intelligence, and fully qualified for jury duty, but that in the list of several hundred names drawn for jury duty not more than half dozen, if any, names of men of that race are found . . . [and] it has been a long time since men of that race have served on the jury in the court"); Miller v. Commonwealth, 127 Ky. 387 (1907) (finding that there was no discrimination by the jury commissioners when the defendant, a Negro, was indicted by an all-white jury because there were no Negroes on the list of persons qualified for jury service); Cooper v. State, 64 Md. 40, 45 (1885) (concluding that because jurors could be drawn either from the list of those who paid taxes or those who were registered to vote, it was not discriminatory that the tax list consisted of "'the white male taxable inhabitants of the county'"); Farrow v. State, 91 Miss. 509, 511 (1908) (reversing judgment to deny motion to quash the indictment because the board of supervisors of Tate County "failed and refused to select and list the names of any negroes whatever, although there were then, and are now, on the registration books of voters in said Tate county negroes of good intelligence, sound judgment, and fair character, competent and qualified for jury service under the laws of the state."); State v. Peoples, 131 N.C. 784, 788 (1902) (finding error and unlawful discrimination that the defendant, a Negro, was indicted by a grand jury in which Negroes could not serve even though they met the qualifications for jury service of having paid taxes the previous year and of being of "good moral character and sufficient intelligence"); Smith v. State, 42 Tex. Crim. 220, 222 (1900) (holding that the motion to quash the indictment should have been sustained because "[t]he record . . . shows that for 20 years negroes had been excluded from service upon the juries" and the Texas courts must follow the U.S. Supreme Court's decisions). See generally Batson v. Kentucky, 476 U.S. 79, 103-04 (1986) (providing statistics from several states demonstrating how infrequently African Americans were actually permitted to serve on juries) (Marshall, J., concurring).
76. States varied as to when they allowed women to serve as jurors. The California Supreme Court believed the decision was best left to the legislature, and the legislature's decision to allow women to serve was certainly consistent with the California constitution prohibiting discrimination against women "entering upon or pursuing any lawful business, vocation or profession," see CAL. CONST. art. 20, § 18, amended by CAL. CONST. art. 1, § 8 (Nov. 5, 1974), and with an amendment giving women the right to vote and hold office, see CAL. CONST. art 2, § 1 (Oct. 10, 1911). See Ex Parte Mana, 172 P. 986 (Cal. 1918). The Supreme Court of Illinois granted a petition for the issuance of a writ of mandamus requiring jury commissioners to revise the jury lists to include eligible women, as provided for by the Jury Commissioners' Act, 78 Ill. Rev. Stat § 25 (1937), making women eligible for jury duty. See Denny v. Traeger, 22 N.E.2d 679 (Ill. 1939). For some states, the Nineteenth Amendment, which enfranchised women, served as a catalyst for allowing women to serve as jurors. See, e.g., State v. Chase, 211 P. 920, 920, 923 (Or. 1922) (noting that "[i]n 1921 it was deemed expedient so to amend the laws providing for the selection of jurors that women otherwise qualified should be eligible to jury duty . . . . Women are now the peers of men politically, and there is no reason to question their eligibility upon constitutional grounds."); In re Opinion of the Justices, 130 N.E. 685, 688 (Mass. 1921) (concluding that "a change by an amendment to the Constitution in the qualifications of the electorate, such as that wrought by the Nineteenth Amendment, by its own force authorizes the General Court to make a corresponding change in the qualifications of jurors").
77. See Act of Feb. 28, 1871, ch. 99, 16 Stat. 433, repealed by 2 U.S.C. § 9 (1997); Act of Apr. 20, 1871, ch. 22, 17 Stat. 13, repealed by 10 U.S.C. § 333 (1983).
78. Andrew G. Deiss, Negotiating Justice: The Criminal Trial Jury in a Pluralist America, 3 U. CHI. L. SCH. ROUNDTABLE 323, 344-45 & n.109 (1996).
79. See ABRAMSON, supra note 33, at 111-12; Albert W. Alschuler, A Teetering Palladium?, 79 JUDICATURE 200, 203 (1996) (book review).
80. See ABRAMSON, supra note 33, at 111-12; Albert W. Alschuler, A Teetering Palladium?, 79 JUDICATURE 200, 203 (1996) (book review).
81. See Alschuler, supra note 46, at 203 ("One juror explained, 'If we hadn't stopped to drink pop, it wouldn't have taken that long.'").
82. See, e.g., W. William Hodes, Lord Brougham, the Dream Team, and Jury Nullification of the Third Kind, 67 U. COLO. L. REV. 1075, 1090 & n.39 (1996).
83. See id. at 1096-97 & n.57.
84. See id.
85. See Ed Timms, Jury Convicts Beckwith of Evers' Murder, DALLAS MORNING NEWS, Feb. 6, 1994, at 1A ("The jury that convicted Mr. Beckwith . . . was made up of three black men, five black women, two white women and two white men.").
86. See Hodes, supra note 48, at 1090 n.39; Robert P. Burns, The History and Theory of the American Jury, 83 CAL. L. REV. 1477, 1485 n.22 (1995) (review essay); Ellen Goodman, Changing Venues, Changing Values in the Jury Room, BOSTON GLOBE, Feb. 20, 1994, at 83 ("In 1964, the man accused of killing Medgar Evers was let off by two hung juries of white men. It took 30 years and a racially mixed jury before Byron De La Beckwith was found guilty this month. Justice may emerge over time.").
87. See Hodes, supra note 48, at 1090 n.39; Robert P. Burns, The History and Theory of the American Jury, 83 CAL. L. REV. 1477, 1485 n.22 (1995) (review essay); Ellen Goodman, Changing Venues, Changing Values in the Jury Room, BOSTON GLOBE, Feb. 20, 1994, at 83 ("In 1964, the man accused of killing Medgar Evers was let off by two hung juries of white men. It took 30 years and a racially mixed jury before Byron De La Beckwith was found guilty this month. Justice may emerge over time.").
88. See Hodes, supra note 48, at 1090 n.39; Robert P. Burns, The History and Theory of the American Jury, 83 CAL. L. REV. 1477, 1485 n.22 (1995) (review essay); Ellen Goodman, Changing Venues, Changing Values in the Jury Room, BOSTON GLOBE, Feb. 20, 1994, at 83 ("In 1964, the man accused of killing Medgar Evers was let off by two hung juries of white men. It took 30 years and a racially mixed jury before Byron De La Beckwith was found guilty this month. Justice may emerge over time.").
89. See generally Inside the Jury Room transcript, supra note 16.
90. See id. at 6 (describing Reed as reading "at the second grade level" and having "borderline intelligence").
91. See id. at 5.
92. See id. at 4.
93. See id.
94. See, e.g., id. at 21 (quoting juror Dr. Lester Sauvage: "[Reed] didn't understand so many things. But when somebody told him, 'This is wrong. Please bring this [gun] in,' he did it right away . . . . I, deep inside, believe there's an exception in this case."). By the end of the deliberations, all but one of the jurors were persuaded to nullify; the remaining juror, Karl Buetow, agreed to vote with the others, but was skeptical whether nullification was appropriate in this case. See infra text accompanying notes 203-19 (detailing the dynamics of the deliberations).
95. See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 258-85 (1966) (finding that instances of judge and jury disagreement as to the verdict often involved cases where the stakes were trivial); Michael R. Smythers, Equitable Acquittals: Prediction and Preparation Prevent Post-Panel Predicaments, ARMY LAW., Apr. 1986, at 3 (observing that "equitable acquittals" occur most often in the military setting at special courts-martial involving minor offenses in which the consequences of conviction, such as ruining the career of an otherwise good soldier, appear unjust).
96. See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 258-85 (1966) (finding that instances of judge and jury disagreement as to the verdict often involved cases where the stakes were trivial); Michael R. Smythers, Equitable Acquittals: Prediction and Preparation Prevent Post-Panel Predicaments, ARMY LAW., Apr. 1986, at 3 (observing that "equitable acquittals" occur most often in the military setting at special courts-martial involving minor offenses in which the consequences of conviction, such as ruining the career of an otherwise good soldier, appear unjust).
97. See Inside the Jury Room transcript, supra note 16, at 22 ("I'm sort of sitting to myself thinking, this is 'Mickey Mouse'. . . . I really don't feel that this is a justified expenditure of my time and attention as a juror.") (quoting Juror John Boly, English Professor).
98. Id. (quoting Juror John Boly).
99. The exception is in a capital case, where in many states, the jury decides (sometimes in conjunction with the judge) whether to impose a life or death sentence. See, e.g., ARK. CODE. ANN. § 5-4-602(3) (Michie 1997) ("If the defendant is found guilty of capital murder, the same jury shall sit again in order to hear additional evidence . . . and to determine sentence . . . ".); FLA. STAT. ANN. § 921.141(2) (West 1998) ("Advisory sentence by the jury."); MISS. CODE ANN. § 99-19-101 (1998) ("Jury to determine punishment in capital cases in separate sentencing proceeding; aggravating and mitigating circumstances to be considered."); N.M. STAT. ANN. § 31-20A-1(B) (Michie 1998) ("In a jury trial, the sentencing preceding shall be conducted . . . by the original trial judge before the original trial jury [after a verdict of capital felony]."); OKLA. STAT. ANN. tit. 21, § 701.10A (West 1998) ("Upon conviction . . . the court shall conduct a separate sentencing proceeding . . . before the same trial jury . . . ."); OR. REV. STAT. § 163.150(1)(a) (1998) ("Upon a finding that the defendant is guilty of aggravated murder, the trial court . . . shall conduct a separate sentencing hearing . . . before the trial jury . . . .").
100. See, e.g., Enter the Jury Room transcript, supra note 16, at 48 (showing the jury sending a question to the judge about the sentence, and the judge responding that that is a matter for the court to decide).
101. See id. (providing the basis for Juror Joe's vote).
102. See id. at 49. The case was then retried and resulted in a conviction. See id. at 57.
103. See infra text accompanying notes 88-101.
104. In Kalven and Zeisel's study, they identified five reasons to explain judge-jury disagreement: sentiments on the law, sentiments on the defendant, issues of evidence, facts only the judge knew, and disparity of counsel. See KALVEN & ZEISEL, supra note 59, at 111. They discovered that "[e]ach of the reason categories appears more frequently in combination with other reasons than it does alone." Id. at 113. They further noted: "The sharing of reasons is particularly interesting with respect to disparity of counsel and jury sentiments about the defendant, both of which combine with other reasons over 90 per cent of the time they operate." Id. at 114.
105. Act of February 12, 1793, ch. 7, 1 Stat. 302 (1793). The Act provided in relevant part: [T]he person to whom such labour or service may be due . . . is hereby empowered to seize or arrest such fugitive from labour, and to take him or her before any judge of the circuit or district courts of the United States . . . and upon proof to the satisfaction of such judge or magistrate . . . that the person so seized or arrested doth, under the laws of the state or territory
106. The Fugitive Slave Clause provided: No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or Regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. U.S. CONST. art IV, § 2.
107. Seech. 7, 1 Stat. 302 (1793).
108. See Act to amend and supplementary to the Act entitled, "An Act respecting Fugitives from Justice, and Persons escaping from the Service of their Masters," ch. 60, 9 Stat 462 (Sept. 18, 1850) (repealed 1862).
109. See ROBERT M. COVER, JUSTICE ACCUSED 175, 185 (1975).
110. See ch. 60, 9 Stat. 463, § 6 (1850).
111. See THOMAS D. MORRIS, FREE MEN ALL: THE PERSONAL LIBERTY LAWS OF THE NORTH, 1780-1861, at 42-58 (1974). The Supreme Court eventually held Pennsylvania's personal liberty law unconstitutional. See Prigg v. Pennsylvania, 41 U.S. 536, 624-25 (1842). Some states responded with other remedies, such as the writ of habeas corpus and the writ de homine replegiando (allowing a jury trial). See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 890 n.119 (1994). However, in Ableman v. Booth, 62 U.S. 506, 523-26 (1859), the Supreme Court held that state courts lacked the power to interfere with federal orders enforcing the Fugitive Slave Act, thus ending such procedures.
112. See THOMAS D. MORRIS, FREE MEN ALL: THE PERSONAL LIBERTY LAWS OF THE NORTH, 1780- 1861, at 42-58 (1974). The Supreme Court eventually held Pennsylvania's personal liberty law unconstitutional. See Prigg v. Pennsylvania, 41 U.S. 536, 624-25 (1842). Some states responded with other remedies, such as the writ of habeas corpus and the writ de homine replegiando (allowing a jury trial). See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 890 n.119 (1994). However, in Ableman v. Booth, 62 U.S. 506, 523-26 (1859), the Supreme Court held that state courts lacked the power to interfere with federal orders enforcing the Fugitive Slave Act, thus ending such procedures.
113. See, e.g., Alschuler & Deiss, supra note 74, at 928 n.119; Clay S. Conrad, Jury Nullification as a Defense Strategy, 2 TEX. F. CIV. LIBERTY & CIV. RTS. 1, 9 n.50 (1995). For a fictional account, see LORENE CAREY, THE PRICE OF A CHILD (1996) (describing the escape of a slave woman and her two children and the assistance provided by abolitionists).
114. See, e.g., Alschuler & Deiss, supra note 74, at 928 n.119; Clay S. Conrad, Jury Nullification as a Defense Strategy, 2 TEX. F. CIV. LIBERTY & CIV. RTS. 1, 9 n.50 (1995). For a fictional account, see LORENE CAREY, THE PRICE OF A CHILD (1996) (describing the escape of a slave woman and her two children and the assistance provided by abolitionists).
115. See COVER, supra note 72, at 191 (providing examples).
116. See ch. 60, 9 Stat 462 (1850).
117. The Act of 1850 did not provide for a right to jury trial. See ch. 60, 9 Stat. 462 (1850); Alschuler & Deiss, supra note 74, at 890-91 n.119.
118. See, e.g., Alschuler & Deiss, supra note 74, at 890-91 n.119; Conrad, supra note 75, at 8 (citing one source that reported that "violence against slave-catchers and the refusal of juries to convict persons who aided escaping slaves effectively nullified the federal fugitive slave law in several free states") (quoting Harold M. Hyman & Catherine M. Tarrant, Aspects of American Trial Jury History, in THE JURY SYSTEM IN AMERICA: A CRITICAL OVERVIEW 23, 37 (Rita James Simon ed., 1975)); John T. Reed, Comment, Penn, Zenger and O.J.: Jury Nullification - Justice or the "Wacko Fringe's" Attempt to Further its Anti-Government Agenda?, 34 DUQ. L. REV. 1125, 1133 (1996) ("Many people were opposed to the [Fugitive Slave] law on moral grounds, which made most prosecutions under the law unsuccessful."); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy and Prosecutorial Strategy, 85 GEO. L.J. 191, 201 n.71 (1996) ("Due to widespread opposition to the [1850] law among abolitionists and nonabolitionists alike . . . the law 'became virtually unenforceable.'") (quoting JOHN A. GARRATY, A SHORT HISTORY OF THE AMERICAN NATION 235 (6th ed. 1993)); Lisa Kern Griffen, "The Image We See Is Our Own": Defending the Jury's Territory at the Heart of the Democratic Process, 75 NEB. L. REV. 332, 362 (1996) (book review). In Justice Accused, Robert Cover recounted instances of jury trials of aiders and abettors in Massachusetts and Pennsylvania who were freed because of hung juries or acquittals. See COVER, supra note 72, at 191.
119. See, e.g., Alschuler & Deiss, supra note 74, at 890-91 n.119; Conrad, supra note 75, at 8 (citing one source that reported that "violence against slave-catchers and the refusal of juries to convict persons who aided escaping slaves effectively nullified the federal fugitive slave law in several free states") (quoting Harold M. Hyman & Catherine M. Tarrant, Aspects of American Trial Jury History, in THE JURY SYSTEM IN AMERICA: A CRITICAL OVERVIEW 23, 37 (Rita James Simon ed., 1975)); John T. Reed, Comment, Penn, Zenger and O.J.: Jury Nullification - Justice or the "Wacko Fringe's" Attempt to Further its Anti-Government Agenda?, 34 DUQ. L. REV. 1125, 1133 (1996) ("Many people were opposed to the [Fugitive Slave] law on moral grounds, which made most prosecutions under the law unsuccessful."); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy and Prosecutorial Strategy, 85 GEO. L.J. 191, 201 n.71 (1996) ("Due to widespread opposition to the [1850] law among abolitionists and nonabolitionists alike . . . the law 'became virtually unenforceable.'") (quoting JOHN A. GARRATY, A SHORT HISTORY OF THE AMERICAN NATION 235 (6th ed. 1993)); Lisa Kern Griffen, "The Image We See Is Our Own": Defending the Jury's Territory at the Heart of the Democratic Process, 75 NEB. L. REV. 332, 362 (1996) (book review). In Justice Accused, Robert Cover recounted instances of jury trials of aiders and abettors in Massachusetts and Pennsylvania who were freed because of hung juries or acquittals. See COVER, supra note 72, at 191.
120. See, e.g., Alschuler & Deiss, supra note 74, at 890-91 n.119; Conrad, supra note 75, at 8 (citing one source that reported that "violence against slave-catchers and the refusal of juries to convict persons who aided escaping slaves effectively nullified the federal fugitive slave law in several free states") (quoting Harold M. Hyman & Catherine M. Tarrant, Aspects of American Trial Jury History, in THE JURY SYSTEM IN AMERICA: A CRITICAL OVERVIEW 23, 37 (Rita James Simon ed., 1975)); John T. Reed, Comment, Penn, Zenger and O.J.: Jury Nullification - Justice or the "Wacko Fringe's" Attempt to Further its Anti-Government Agenda?, 34 DUQ. L. REV. 1125, 1133 (1996) ("Many people were opposed to the [Fugitive Slave] law on moral grounds, which made most prosecutions under the law unsuccessful."); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy and Prosecutorial Strategy, 85 GEO. L.J. 191, 201 n.71 (1996) ("Due to widespread opposition to the [1850] law among abolitionists and nonabolitionists alike . . . the law 'became virtually unenforceable.'") (quoting JOHN A. GARRATY, A SHORT HISTORY OF THE AMERICAN NATION 235 (6th ed. 1993)); Lisa Kern Griffen, "The Image We See Is Our Own": Defending the Jury's Territory at the Heart of the Democratic Process, 75 NEB. L. REV. 332, 362 (1996) (book review). In Justice Accused, Robert Cover recounted instances of jury trials of aiders and abettors in Massachusetts and Pennsylvania who were freed because of hung juries or acquittals. See COVER, supra note 72, at 191.
121. See, e.g., Alschuler & Deiss, supra note 74, at 890-91 n.119; Conrad, supra note 75, at 8 (citing one source that reported that "violence against slave-catchers and the refusal of juries to convict persons who aided escaping slaves effectively nullified the federal fugitive slave law in several free states") (quoting Harold M. Hyman & Catherine M. Tarrant, Aspects of American Trial Jury History, in THE JURY SYSTEM IN AMERICA: A CRITICAL OVERVIEW 23, 37 (Rita James Simon ed., 1975)); John T. Reed, Comment, Penn, Zenger and O.J.: Jury Nullification - Justice or the "Wacko Fringe's" Attempt to Further its Anti-Government Agenda?, 34 DUQ. L. REV. 1125, 1133 (1996) ("Many people were opposed to the [Fugitive Slave] law on moral grounds, which made most prosecutions under the law unsuccessful."); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy and Prosecutorial Strategy, 85 GEO. L.J. 191, 201 n.71 (1996) ("Due to widespread opposition to the [1850] law among abolitionists and nonabolitionists alike . . . the law 'became virtually unenforceable.'") (quoting JOHN A. GARRATY, A SHORT HISTORY OF THE AMERICAN NATION 235 (6th ed. 1993)); Lisa Kern Griffen, "The Image We See Is Our Own": Defending the Jury's Territory at the Heart of the Democratic Process, 75 NEB. L. REV. 332, 362 (1996) (book review). In Justice Accused, Robert Cover recounted instances of jury trials of aiders and abettors in Massachusetts and Pennsylvania who were freed because of hung juries or acquittals. See COVER, supra note 72, at 191.
122. See, e.g., Alschuler & Deiss, supra note 74, at 890-91 n.119; Conrad, supra note 75, at 8 (citing one source that reported that "violence against slave-catchers and the refusal of juries to convict persons who aided escaping slaves effectively nullified the federal fugitive slave law in several free states") (quoting Harold M. Hyman & Catherine M. Tarrant, Aspects of American Trial Jury History, in THE JURY SYSTEM IN AMERICA: A CRITICAL OVERVIEW 23, 37 (Rita James Simon ed., 1975)); John T. Reed, Comment, Penn, Zenger and O.J.: Jury Nullification - Justice or the "Wacko Fringe's" Attempt to Further its Anti-Government Agenda?, 34 DUQ. L. REV. 1125, 1133 (1996) ("Many people were opposed to the [Fugitive Slave] law on moral grounds, which made most prosecutions under the law unsuccessful."); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy and Prosecutorial Strategy, 85 GEO. L.J. 191, 201 n.71 (1996) ("Due to widespread opposition to the [1850] law among abolitionists and nonabolitionists alike . . . the law 'became virtually unenforceable.'") (quoting JOHN A. GARRATY, A SHORT HISTORY OF THE AMERICAN NATION 235 (6th ed. 1993)); Lisa Kern Griffen, "The Image We See Is Our Own": Defending the Jury's Territory at the Heart of the Democratic Process, 75 NEB. L. REV. 332, 362 (1996) (book review). In Justice Accused, Robert Cover recounted instances of jury trials of aiders and abettors in Massachusetts and Pennsylvania who were freed because of hung juries or acquittals. See COVER, supra note 72, at 191.
123. See, e.g., Alschuler & Deiss, supra note 74, at 890-91 n.119; Conrad, supra note 75, at 8 (citing one source that reported that "violence against slave-catchers and the refusal of juries to convict persons who aided escaping slaves effectively nullified the federal fugitive slave law in several free states") (quoting Harold M. Hyman & Catherine M. Tarrant, Aspects of American Trial Jury History, in THE JURY SYSTEM IN AMERICA: A CRITICAL OVERVIEW 23, 37 (Rita James Simon ed., 1975)); John T. Reed, Comment, Penn, Zenger and O.J.: Jury Nullification - Justice or the "Wacko Fringe's" Attempt to Further its Anti-Government Agenda?, 34 DUQ. L. REV. 1125, 1133 (1996) ("Many people were opposed to the [Fugitive Slave] law on moral grounds, which made most prosecutions under the law unsuccessful."); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy and Prosecutorial Strategy, 85 GEO. L.J. 191, 201 n.71 (1996) ("Due to widespread opposition to the [1850] law among abolitionists and nonabolitionists alike . . . the law 'became virtually unenforceable.'") (quoting JOHN A. GARRATY, A SHORT HISTORY OF THE AMERICAN NATION 235 (6th ed. 1993)); Lisa Kern Griffen, "The Image We See Is Our Own": Defending the Jury's Territory at the Heart of the Democratic Process, 75 NEB. L. REV. 332, 362 (1996) (book review). In Justice Accused, Robert Cover recounted instances of jury trials of aiders and abettors in Massachusetts and Pennsylvania who were freed because of hung juries or acquittals. See COVER, supra note 72, at 191.
124. See, e.g., Alschuler & Deiss, supra note 74, at 890-91 n.119; Conrad, supra note 75, at 8 (citing one source that reported that "violence against slave-catchers and the refusal of juries to convict persons who aided escaping slaves effectively nullified the federal fugitive slave law in several free states") (quoting Harold M. Hyman & Catherine M. Tarrant, Aspects of American Trial Jury History, in THE JURY SYSTEM IN AMERICA: A CRITICAL OVERVIEW 23, 37 (Rita James Simon ed., 1975)); John T. Reed, Comment, Penn, Zenger and O.J.: Jury Nullification - Justice or the "Wacko Fringe's" Attempt to Further its Anti-Government Agenda?, 34 DUQ. L. REV. 1125, 1133 (1996) ("Many people were opposed to the [Fugitive Slave] law on moral grounds, which made most prosecutions under the law unsuccessful."); Steven M. Warshawsky, Note, Opposing Jury Nullification: Law, Policy and Prosecutorial Strategy, 85 GEO. L.J. 191, 201 n.71 (1996) ("Due to widespread opposition to the [1850] law among abolitionists and nonabolitionists alike . . . the law 'became virtually unenforceable.'") (quoting JOHN A. GARRATY, A SHORT HISTORY OF THE AMERICAN NATION 235 (6th ed. 1993)); Lisa Kern Griffen, "The Image We See Is Our Own": Defending the Jury's Territory at the Heart of the Democratic Process, 75 NEB. L. REV. 332, 362 (1996) (book review). In Justice Accused, Robert Cover recounted instances of jury trials of aiders and abettors in Massachusetts and Pennsylvania who were freed because of hung juries or acquittals. See COVER, supra note 72, at 191.
125. See infra text accompanying notes 154-66 (describing instructions to juries at the time of the nation's founding and early in our history).
126. See infra note 155 (describing instructions).
127. See National Prohibition Act of Oct. 28, 1919, ch. 85, 41 Stat. 305, amended by Supplement to National Prohibition Act, Nov. 23, 1921, ch. 134, 42 Stat. 222, amended by Jan. 15, 1931, ch. 29, 46 Stat. 1036, repealed by U.S. CONST. amend. XXI, § 1. The National Prohibition Act prohibited the production, sale, and transportation of alcoholic beverages; however, it did not criminalize their use, purchase, or possession. The Act was based on the Eighteenth Amendment to the U.S. Constitution, which provided in relevant part: "Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited." U.S. CONST. amend. XVIII, § 1.
128. See supra note 59. As significant as this study was, it suffered from several methodological problems, one of which was the authors' decision to assess the accuracy of jury verdicts by comparing them to judges' assessments of the same cases. This meant using judges' views as the benchmark for the correct answer when it was not at all clear that their views should be taken as correct. Some academics have discussed whether the Kalven and Zeisel study should be updated, and if so, how some of their methodological shortcomings could be avoided. See, e.g., Is It Time to Replicate The American Juryt, Association of American Law Schools, Panel Discussion, Jan. 9, 1998 (author's notes on file with the Northwestern University Law Review).
129. KALVEN & ZEISEL, supra note 59, at 291.
130. Id. at 76.
131. See id. at 292 n.10.
132. See Alan Scheflin & Jon Van Dyke, Jury Nullification: The Contours of a Controversy, 43 LAW & CONTEMP. PROBS., Autumn 1980, at 51, 71.
133. See CAL. PENAL CODE § 667 (West Supp. 1998).
134. See id. The statute took effect on March 7, 1994, which was the date on which the Governor signed Bill No. 971. The statute had been passed by both the Senate and Assembly on March 3, 1994. There was also a ballot initiative (Proposition 184), which was approved by voters on November 8, 1994. and took effect the next day, codified as CAL. PENAL CODE § 1170.12 (West Supp. 1998). The two statutes differ only in minor ways.
135. CAL. PENAL CODE § 667(b) (West Supp. 1998) ("It is the intent of the Legislature . . . to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.").
136. The statute provides that such a defendant is to receive a sentence of "an indeterminate term of life imprisonment." CAL. PENAL CODE § 667(e)(2)(A) (West Supp. 1998). The law has been interpreted by the California Supreme Court to allow judges, as well as prosecutors, to decide whether to disregard prior convictions and not treat a case as a "three strikes" case in the furtherance of justice. See People v. Superior Court (Romero), 53 Cal. Rptr. 2d 789, 808 (1996) (holding that the court can strike allegations of prior felony convictions in furtherance of justice on the court's own motion in a case brought under the three strikes law).
137. See, e.g., Ken Ellingwood, Three-Time Loser Gets Life in Cookie Theft, L.A. TIMES, Oct. 28, 1995. at B1 ("Orange County Superior Court Judge Jean Rheinheimer acknowledged the three-strikes law was 'a harsh one' but left her no alternative" in the case of a man she sentenced to life imprisonment after he was found guilty of breaking into a restaurant and stealing four cookies.).
138. See Frank J. Murray, Is a Pizza Worth 25 Years to Life?, WASH. TIMES, Apr. 29, 1995, at A6 ("Opponents of California's 'three strikes and you're out' law . . . said it was excessive and absurd to invoke it against Jerry Dwayne Williams for taking a slice of pepperoni pizza from a group of children."); Eric Slater, Pizza Thief Gets 25 Years to Life, L.A. TIMES, Mar. 3, 1995, at B3 ("Jerry Dewayne Williams was sentenced to prison for 25 years to life Thursday under the state's 'three strikes' law for stealing a slice of pepperoni pizza."); see also Carey Goldberg, California Judges Ease 3-Strike Law, N.Y. TIMES, June 21, 1996, at A1 ("'If you ask [the public] about a guy who steals pizza, 80 percent will want judicial discretion.'") (quoting Franklin Zimring, director of the Earl Warren Legal Institute at the University of California at Berkeley).
139. See Frank J. Murray, Is a Pizza Worth 25 Years to Life?, WASH. TIMES, Apr. 29, 1995, at A6 ("Opponents of California's 'three strikes and you're out' law . . . said it was excessive and absurd to invoke it against Jerry Dwayne Williams for taking a slice of pepperoni pizza from a group of children."); Eric Slater, Pizza Thief Gets 25 Years to Life, L.A. TIMES, Mar. 3, 1995, at B3 ("Jerry Dewayne Williams was sentenced to prison for 25 years to life Thursday under the state's 'three strikes' law for stealing a slice of pepperoni pizza."); see also Carey Goldberg, California Judges Ease 3-Strike Law, N.Y. TIMES, June 21, 1996, at A1 ("'If you ask [the public] about a guy who steals pizza, 80 percent will want judicial discretion.'") (quoting Franklin Zimring, director of the Earl Warren Legal Institute at the University of California at Berkeley).
140. See Frank J. Murray, Is a Pizza Worth 25 Years to Life?, WASH. TIMES, Apr. 29, 1995, at A6 ("Opponents of California's 'three strikes and you're out' law . . . said it was excessive and absurd to invoke it against Jerry Dwayne Williams for taking a slice of pepperoni pizza from a group of children."); Eric Slater, Pizza Thief Gets 25 Years to Life, L.A. TIMES, Mar. 3, 1995, at B3 ("Jerry Dewayne Williams was sentenced to prison for 25 years to life Thursday under the state's 'three strikes' law for stealing a slice of pepperoni pizza."); see also Carey Goldberg, California Judges Ease 3-Strike Law, N.Y. TIMES, June 21, 1996, at A1 ("'If you ask [the public] about a guy who steals pizza, 80 percent will want judicial discretion.'") (quoting Franklin Zimring, director of the Earl Warren Legal Institute at the University of California at Berkeley).
141. 9A See Ellingwood, supra note 92, at B1 ("A homeless parolee convicted for breaking into a Santa Ana restaurant and stealing four cookies was sentenced to life in prison . . . after the judge said she had no choice under the state's 'three strikes' law."); see also Jane Gross, In the New Ball Game, These Two Would Have Struck Out, N.Y. TIMES, Mar. 20, 1994, at 7 ("Among those already charged as a three- strikes offender is a Los Angeles man with a 52-page rap sheet whose latest crime was rolling an elderly Skid Row transient for 50 cents."); Murray, supra note 93, at A6 ("Carping questions also were heard when Keith Egly took a 12-pack of beer from a Sacramento convenience store, and Roosevelt Carlton McCowan stole 18 bottles of cologne in Ventura. Egly, 26, managed to get the beer at knifepoint, which is armed robbery . . . . McCowan, 52, also was cited as another example of too-tough sentencing despite his seven prior convictions for robbery, burglary and attempted murder."); Tony Perry & Maura Dolan, Two Counties at Opposite Poles of '3 Strikes' Debate Crime: San Francisco is Restrictive in Applying Law. San Diego Takes Hard Line, Approaches Reflect Will of Electorate, L.A. TIMES, June 24, 1996, at A1 ("There have been cases of convictions in which the 'third strike' was the theft of bluejeans, a six- pack of beer or, in the case of one 60-year-old defendant, a pint of whiskey."); Slater, supra note 93, at B3 (describing the cases of Duane Silva, who has an IQ of 70 and suffers from manic depression, and who was "sentenced to 30 years to life for stealing a video recorder and a coin collection from his neighbors" and Michael Garcia, "whose 'strikes' are a nonviolent robbery and theft . . . [and who] could receive 25 years to life for stealing a $5.62 package of meat").
142. 9A See Ellingwood, supra note 92, at B1 ("A homeless parolee convicted for breaking into a Santa Ana restaurant and stealing four cookies was sentenced to life in prison . . . after the judge said she had no choice under the state's 'three strikes' law."); see also Jane Gross, In the New Ball Game, These Two Would Have Struck Out, N.Y. TIMES, Mar. 20, 1994, at 7 ("Among those already charged as a three-strikes offender is a Los Angeles man with a 52-page rap sheet whose latest crime was rolling an elderly Skid Row transient for 50 cents."); Murray, supra note 93, at A6 ("Carping questions also were heard when Keith Egly took a 12-pack of beer from a Sacramento convenience store, and Roosevelt Carlton McCowan stole 18 bottles of cologne in Ventura. Egly, 26, managed to get the beer at knifepoint, which is armed robbery . . . . McCowan, 52, also was cited as another example of too-tough sentencing despite his seven prior convictions for robbery, burglary and attempted murder."); Tony Perry & Maura Dolan, Two Counties at Opposite Poles of '3 Strikes' Debate Crime: San Francisco is Restrictive in Applying Law. San Diego Takes Hard Line, Approaches Reflect Will of Electorate, L.A. TIMES, June 24, 1996, at A1 ("There have been cases of convictions in which the 'third strike' was the theft of bluejeans, a six- pack of beer or, in the case of one 60-year-old defendant, a pint of whiskey."); Slater, supra note 93, at B3 (describing the cases of Duane Silva, who has an IQ of 70 and suffers from manic depression, and who was "sentenced to 30 years to life for stealing a video recorder and a coin collection from his neighbors" and Michael Garcia, "whose 'strikes' are a nonviolent robbery and theft . . . [and who] could receive 25 years to life for stealing a $5.62 package of meat").
143. 9A See Ellingwood, supra note 92, at B1 ("A homeless parolee convicted for breaking into a Santa Ana restaurant and stealing four cookies was sentenced to life in prison . . . after the judge said she had no choice under the state's 'three strikes' law."); see also Jane Gross, In the New Ball Game, These Two Would Have Struck Out, N.Y. TIMES, Mar. 20, 1994, at 7 ("Among those already charged as a three- strikes offender is a Los Angeles man with a 52-page rap sheet whose latest crime was rolling an elderly Skid Row transient for 50 cents."); Murray, supra note 93, at A6 ("Carping questions also were heard when Keith Egly took a 12-pack of beer from a Sacramento convenience store, and Roosevelt Carlton McCowan stole 18 bottles of cologne in Ventura. Egly, 26, managed to get the beer at knifepoint, which is armed robbery . . . . McCowan, 52, also was cited as another example of too-tough sentencing despite his seven prior convictions for robbery, burglary and attempted murder."); Tony Perry & Maura Dolan, Two Counties at Opposite Poles of '3 Strikes' Debate Crime: San Francisco is Restrictive in Applying Law. San Diego Takes Hard Line, Approaches Reflect Will of Electorate, L.A. TIMES, June 24, 1996, at A1 ("There have been cases of convictions in which the 'third strike' was the theft of bluejeans, a six- pack of beer or, in the case of one 60-year-old defendant, a pint of whiskey."); Slater, supra note 93, at B3 (describing the cases of Duane Silva, who has an IQ of 70 and suffers from manic depression, and who was "sentenced to 30 years to life for stealing a video recorder and a coin collection from his neighbors" and Michael Garcia, "whose 'strikes' are a nonviolent robbery and theft . . . [and who] could receive 25 years to life for stealing a $5.62 package of meat").
144. 9A See Ellingwood, supra note 92, at B1 ("A homeless parolee convicted for breaking into a Santa Ana restaurant and stealing four cookies was sentenced to life in prison . . . after the judge said she had no choice under the state's 'three strikes' law."); see also Jane Gross, In the New Ball Game, These Two Would Have Struck Out, N.Y. TIMES, Mar. 20, 1994, at 7 ("Among those already charged as a three- strikes offender is a Los Angeles man with a 52-page rap sheet whose latest crime was rolling an elderly Skid Row transient for 50 cents."); Murray, supra note 93, at A6 ("Carping questions also were heard when Keith Egly took a 12-pack of beer from a Sacramento convenience store, and Roosevelt Carlton McCowan stole 18 bottles of cologne in Ventura. Egly, 26, managed to get the beer at knifepoint, which is armed robbery . . . . McCowan, 52, also was cited as another example of too-tough sentencing despite his seven prior convictions for robbery, burglary and attempted murder."); Tony Perry & Maura Dolan, Two Counties at Opposite Poles of '3 Strikes' Debate Crime: San Francisco is Restrictive in Applying Law. San Diego Takes Hard Line, Approaches Reflect Will of Electorate, L.A. TIMES, June 24, 1996, at A1 ("There have been cases of convictions in which the 'third strike' was the theft of bluejeans, a six-pack of beer or, in the case of one 60-year-old defendant, a pint of whiskey."); Slater, supra note 93, at B3 (describing the cases of Duane Silva, who has an IQ of 70 and suffers from manic depression, and who was "sentenced to 30 years to life for stealing a video recorder and a coin collection from his neighbors" and Michael Garcia, "whose 'strikes' are a nonviolent robbery and theft . . . [and who] could receive 25 years to life for stealing a $5.62 package of meat").
145. 9A See Ellingwood, supra note 92, at B1 ("A homeless parolee convicted for breaking into a Santa Ana restaurant and stealing four cookies was sentenced to life in prison . . . after the judge said she had no choice under the state's 'three strikes' law."); see also Jane Gross, In the New Ball Game, These Two Would Have Struck Out, N.Y. TIMES, Mar. 20, 1994, at 7 ("Among those already charged as a three- strikes offender is a Los Angeles man with a 52-page rap sheet whose latest crime was rolling an elderly Skid Row transient for 50 cents."); Murray, supra note 93, at A6 ("Carping questions also were heard when Keith Egly took a 12-pack of beer from a Sacramento convenience store, and Roosevelt Carlton McCowan stole 18 bottles of cologne in Ventura. Egly, 26, managed to get the beer at knifepoint, which is armed robbery . . . . McCowan, 52, also was cited as another example of too-tough sentencing despite his seven prior convictions for robbery, burglary and attempted murder."); Tony Perry & Maura Dolan, Two Counties at Opposite Poles of '3 Strikes' Debate Crime: San Francisco is Restrictive in Applying Law. San Diego Takes Hard Line, Approaches Reflect Will of Electorate, L.A. TIMES, June 24, 1996, at A1 ("There have been cases of convictions in which the 'third strike' was the theft of bluejeans, a six- pack of beer or, in the case of one 60-year-old defendant, a pint of whiskey."); Slater, supra note 93, at B3 (describing the cases of Duane Silva, who has an IQ of 70 and suffers from manic depression, and who was "sentenced to 30 years to life for stealing a video recorder and a coin collection from his neighbors" and Michael Garcia, "whose 'strikes' are a nonviolent robbery and theft . . . [and who] could receive 25 years to life for stealing a $5.62 package of meat").
146. See, e.g., Linda S. Beres & Thomas D. Griffith, Do Three Strikes Laws Make Sense? Habitual Offender Statutes and Criminal Incapacitation, 87 GEO. L.J. 103 (1998) (explaining that three strikes laws, even if they are effective at sentencing high-rate offenders to long prison terms, will have a limited effect on the crime rate because even without such laws most high-rate offenders will spend most of their criminal careers in prison); Fox Butterfield, '3 Strikes' Law in California Is Clogging Courts and Jails, N.Y. TIMES, Mar. 23, 1995, at A1 (describing unintended consequences of California's three strikes law, including defendants in felony cases refusing to accept plea bargains, clogged courts, over- crowded prisons, early release of nonviolent inmates, and fewer civil trials as civil judges are needed to serve as criminal judges).
147. See, e.g., Linda S. Beres & Thomas D. Griffith, Do Three Strikes Laws Make Sense? Habitual Offender Statutes and Criminal Incapacitation, 87 GEO. L.J. 103 (1998) (explaining that three strikes laws, even if they are effective at sentencing high-rate offenders to long prison terms, will have a limited effect on the crime rate because even without such laws most high-rate offenders will spend most of their criminal careers in prison); Fox Butterfield, '3 Strikes' Law in California Is Clogging Courts and Jails, N.Y. TIMES, Mar. 23, 1995, at A1 (describing unintended consequences of California's three strikes law, including defendants in felony cases refusing to accept plea bargains, clogged courts, over-crowded prisons, early release of nonviolent inmates, and fewer civil trials as civil judges are needed to serve as criminal judges).
148. Another instance in which a jury became aware of the mandatory sentence that was likely to follow a conviction was a drug case in Arizona state court, in which the jury deliberations were filmed by CBS as part of its two-hour special on the jury system. In that case, jurors were able to infer that the defendant before them was likely to receive a very lengthy prison sentence if convicted of drug charges because the defense was able to introduce a chart showing various sentence ranges in order to explain the sentence received by the defendant's co-conspirator. The co-conspirator, who had cooperated with the government, had received in exchange a very light sentence. During deliberations, the lengthy prison sentence figured heavily in one juror's mind. See Enter the Jury Room transcript, supra note 16, at 40, 48. He and another juror voted to acquit; as a result, there was a hung jury of six to two. See id. at 49.
149. See Perry & Dolan, supra note 94, at A1 ("In a case of a man convicted of robbing a security guard and trying to steal his car, a juror became agitated and started to cry when she realized it was a 'three strikes' case. She and other jurors objected to the proceeding, and the judge was forced to declare a mistrial."). Edward Nino, a Silicon Valley Public Defender, described the case of Joe Louis Lugo, who was stopped by San Jose Police for driving with bald tires. See All Things Considered: Simpson Case, supra note 3, available in 1995 WL 9892228. The police found a small amount of crack cocaine under Lugo's cap, and Lugo later confessed to drug possession. Lugo, who had two prior felony convictions, would, if convicted in this case, receive a 25-year prison sentence. However, the jury acquitted, "in part, on reasonable doubt, because the police never produced Lugo's cap, and because they didn't agree with the 'three strikes and you're out' law." Id. (quoting Edward Nino).
150. See Butterfield, supra note 95, at A1 ("[J]uries in San Francisco have refused to convict people when they learn it will make the defendants third-time felons."); Perry & Dolan, supra note 94, at A1.
151. See Butterfield, supra note 95, at A1 ("[J]uries in San Francisco have refused to convict people when they learn it will make the defendants third-time felons."); Perry & Dolan, supra note 94, at A1.
152. See Butterfield, supra note 95, at A1 ("In San Francisco, District Attorney Arlo Smith has brought only eight third-strike cases to trial. 'We are using a commonsense approach,' Mr. Smith said . . . ."); Perry & Dolan, supra note 94, at A1 ("'We pretty much use 'three strikes' [only] for vicious people.'") (quoting Terence Hallinan, San Francisco District Attorney).
153. See Butterfield, supra note 95, at A1 ("In San Francisco, District Attorney Arlo Smith has brought only eight third-strike cases to trial. 'We are using a commonsense approach,' Mr. Smith said . . . ."); Perry & Dolan, supra note 94, at A1 ("'We pretty much use 'three strikes' [only] for vicious people.'") (quoting Terence Hallinan, San Francisco District Attorney).
154. See Perry & Dolan, supra note 94, at A1 ("San Diego County prosecutors have sent more 'three strikes' defendants to prison per capita than any urban or suburban county in the state.").
155. See id.
156. Slavery endures in both Mauritania and Sudan, even though both countries claim to have abolished it officially. See Elinor Burkett, 'God Created Me To Be a Slave,' N.Y. TIMES, Oct. 12, 1997, (Magazine), at 56 ("The Government claims to have abolished human bondage, making Mauritania the last nation on the planet to have done so. But in the endless expanses of wind-swept nothingness between Senegal and Morocco, an estimated 90,000 slaves labor as they have for more than 500 years . . . ."); Jack McKinney, The Slave Trade Is Alive and Well in the African Sudan, BUFFALO NEWS, May 14, 1995, at F9 ("The latest account of how the Arab militants of the North Sudan have been reviving slavery in the twilight of the 20th century was reported recently by respected Muslim journalist Shyam Bhatia . . . .").
157. Slavery endures in both Mauritania and Sudan, even though both countries claim to have abolished it officially. See Elinor Burkett, 'God Created Me To Be a Slave,' N.Y. TIMES, Oct. 12, 1997, (Magazine), at 56 ("The Government claims to have abolished human bondage, making Mauritania the last nation on the planet to have done so. But in the endless expanses of wind-swept nothingness between Senegal and Morocco, an estimated 90,000 slaves labor as they have for more than 500 years . . . ."); Jack McKinney, The Slave Trade Is Alive and Well in the African Sudan, BUFFALO NEWS, May 14, 1995, at F9 ("The latest account of how the Arab militants of the North Sudan have been reviving slavery in the twilight of the 20th century was reported recently by respected Muslim journalist Shyam Bhatia . . . .").
158. See 18 U.S.C.A. § 248 (West Supp. 1998). The Act provides in relevant part: (a) Whoever -(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services . . .; [or] . . . (3) intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services . . . , shall be subject to the penalties provided in subsection (b) and the civil remedies provided in subsection (c) . . . .
159. 410 U.S. 113 (1973).
160. See SENATE COMM. ON LABOR & HUMAN RESOURCES, FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT OF 1993, S. REP. No. 103-117, at 28 (1993) ("The Act is carefully drafted so as not to prohibit expressive activities that are constitutionally protected . . . ."); HOUSE COMM. ON JUDICIARY, FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT OF 1994, H.R. CONF. REP. No. 103-488, at 12 (1994).
161. See, e.g., United States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996) (holding that an injunction barring protesters from protesting within 500 feet of an abortion clinic did not violate their rights under the First Amendment); United States v. McMillan, 946 F. Supp. 1254 (S.D. Miss. 1995) (providing for 25-foot buffer zone between abortion protesters and abortion clinic to permit protesters to exercise their right to free speech while clinic employees and patients might feel more secure that any threats of force or damage to property would be more difficult to carry out).
162. See John Harris & Elaine Shelly, Jury Acquits 3 of 4 Abortion Protesters, AUSTIN AM.-STATESMAN, Apr. 14, 1989, at B1 (reporting that a jury acquitted three of four men charged with misdemeanor trespassing for blocking an abortion clinic in Austin, Tex.); Lillie-Beth Sanger, Anti-Abortion Activist Convicted of Assault, Battery in Norman, DAILY OKLAHOMAN, June 16, 1993. available in 1993 WL 7985464 (describing jury's acquittal of anti-abortion activist Joe Wilbanks for trespassing at the Abortion Surgery Center in Norman, Okla.); 16 People Acquitted In Abortion Protest, OMAHA WORLD- HERALD, May 10, 1989, at 1989 WL 3027263 (describing the jury's acquittal of 16 anti-abortion protesters of criminal trespass during a protest at the University of Iowa's abortion clinic). But see Michael Granberry, Abortion Protest Juries Told to Ignore Nullification Ad, L.A. TIMES (San Diego County Edition), Jan. 27, 1990, at B1 (noting case in which an advertisement in a local newspaper informing jurors of their right to nullify failed to persuade a jury in one trial in which seven anti-abortion protesters were convicted of resisting arrest and trespassing, and three others were convicted of trespassing); Sanger, supra, available in 1993 WL 7985464 (describing jury's conviction of Aaron Joe Baker for assault and battery outside the Abortion Surgery Center in Norman, Okla. ).
163. See John Harris & Elaine Shelly, Jury Acquits 3 of 4 Abortion Protesters, AUSTIN AM.- STATESMAN, Apr. 14, 1989, at B1 (reporting that a jury acquitted three of four men charged with misdemeanor trespassing for blocking an abortion clinic in Austin, Tex.); Lillie-Beth Sanger, Anti-Abortion Activist Convicted of Assault, Battery in Norman, DAILY OKLAHOMAN, June 16, 1993. available in 1993 WL 7985464 (describing jury's acquittal of anti-abortion activist Joe Wilbanks for trespassing at the Abortion Surgery Center in Norman, Okla.); 16 People Acquitted In Abortion Protest, OMAHA WORLD- HERALD, May 10, 1989, at 1989 WL 3027263 (describing the jury's acquittal of 16 anti-abortion protesters of criminal trespass during a protest at the University of Iowa's abortion clinic). But see Michael Granberry, Abortion Protest Juries Told to Ignore Nullification Ad, L.A. TIMES (San Diego County Edition), Jan. 27, 1990, at B1 (noting case in which an advertisement in a local newspaper informing jurors of their right to nullify failed to persuade a jury in one trial in which seven anti-abortion protesters were convicted of resisting arrest and trespassing, and three others were convicted of trespassing); Sanger, supra, available in 1993 WL 7985464 (describing jury's conviction of Aaron Joe Baker for assault and battery outside the Abortion Surgery Center in Norman, Okla. ).
164. See John Harris & Elaine Shelly, Jury Acquits 3 of 4 Abortion Protesters, AUSTIN AM.- STATESMAN, Apr. 14, 1989, at B1 (reporting that a jury acquitted three of four men charged with misdemeanor trespassing for blocking an abortion clinic in Austin, Tex.); Lillie-Beth Sanger, Anti-Abortion Activist Convicted of Assault, Battery in Norman, DAILY OKLAHOMAN, June 16, 1993. available in 1993 WL 7985464 (describing jury's acquittal of anti-abortion activist Joe Wilbanks for trespassing at the Abortion Surgery Center in Norman, Okla.); 16 People Acquitted In Abortion Protest, OMAHA WORLD-HERALD, May 10, 1989, at 1989 WL 3027263 (describing the jury's acquittal of 16 anti-abortion protesters of criminal trespass during a protest at the University of Iowa's abortion clinic). But see Michael Granberry, Abortion Protest Juries Told to Ignore Nullification Ad, L.A. TIMES (San Diego County Edition), Jan. 27, 1990, at B1 (noting case in which an advertisement in a local newspaper informing jurors of their right to nullify failed to persuade a jury in one trial in which seven anti-abortion protesters were convicted of resisting arrest and trespassing, and three others were convicted of trespassing); Sanger, supra, available in 1993 WL 7985464 (describing jury's conviction of Aaron Joe Baker for assault and battery outside the Abortion Surgery Center in Norman, Okla. ).
165. See John Harris & Elaine Shelly, Jury Acquits 3 of 4 Abortion Protesters, AUSTIN AM.- STATESMAN, Apr. 14, 1989, at B1 (reporting that a jury acquitted three of four men charged with misdemeanor trespassing for blocking an abortion clinic in Austin, Tex.); Lillie-Beth Sanger, Anti-Abortion Activist Convicted of Assault, Battery in Norman, DAILY OKLAHOMAN, June 16, 1993. available in 1993 WL 7985464 (describing jury's acquittal of anti-abortion activist Joe Wilbanks for trespassing at the Abortion Surgery Center in Norman, Okla.); 16 People Acquitted In Abortion Protest, OMAHA WORLD- HERALD, May 10, 1989, at 1989 WL 3027263 (describing the jury's acquittal of 16 anti-abortion protesters of criminal trespass during a protest at the University of Iowa's abortion clinic). But see Michael Granberry, Abortion Protest Juries Told to Ignore Nullification Ad, L.A. TIMES (San Diego County Edition), Jan. 27, 1990, at B1 (noting case in which an advertisement in a local newspaper informing jurors of their right to nullify failed to persuade a jury in one trial in which seven anti-abortion protesters were convicted of resisting arrest and trespassing, and three others were convicted of trespassing); Sanger, supra, available in 1993 WL 7985464 (describing jury's conviction of Aaron Joe Baker for assault and battery outside the Abortion Surgery Center in Norman, Okla. ).
166. See John Harris & Elaine Shelly, Jury Acquits 3 of 4 Abortion Protesters, AUSTIN AM.- STATESMAN, Apr. 14, 1989, at B1 (reporting that a jury acquitted three of four men charged with misdemeanor trespassing for blocking an abortion clinic in Austin, Tex.); Lillie-Beth Sanger, Anti-Abortion Activist Convicted of Assault, Battery in Norman, DAILY OKLAHOMAN, June 16, 1993. available in 1993 WL 7985464 (describing jury's acquittal of anti-abortion activist Joe Wilbanks for trespassing at the Abortion Surgery Center in Norman, Okla.); 16 People Acquitted In Abortion Protest, OMAHA WORLD- HERALD, May 10, 1989, at 1989 WL 3027263 (describing the jury's acquittal of 16 anti-abortion protesters of criminal trespass during a protest at the University of Iowa's abortion clinic). But see Michael Granberry, Abortion Protest Juries Told to Ignore Nullification Ad, L.A. TIMES (San Diego County Edition), Jan. 27, 1990, at B1 (noting case in which an advertisement in a local newspaper informing jurors of their right to nullify failed to persuade a jury in one trial in which seven anti-abortion protesters were convicted of resisting arrest and trespassing, and three others were convicted of trespassing); Sanger, supra, available in 1993 WL 7985464 (describing jury's conviction of Aaron Joe Baker for assault and battery outside the Abortion Surgery Center in Norman, Okla. ).
167. See infra text accompanying notes 112-21 (questioning whether Bronx jury acquittals indicate nullification).
168. See Sidney J. Spaeth, The Twenty-First Amendment and State Control Over Intoxicating Liquor: Accommodating the Federal Interest, 79 CAL. L. REV. 161, 175 (1991).
169. Joseph L. Sax, Conscience and Anarchy: The Prosecution of War Resisters, 57 YALE REV. 481, 490 (1968).
170. In 1933, the Twenty-first Amendment, see U.S. CONST. amend. XXI, § 1 ("The eighteenth article of amendment to the Constitution of the United States is hereby repealed."), ended Prohibition.
171. I use "may" because this type of nullification is the most difficult to identify. Indeed, this is one of the drawbacks of this type of nullification, namely that it is particularly difficult to know that nullification has taken place. See infra text accompanying notes 113-21 (describing why this is the least effective form of nullification).
172. There is debate about the acquittal rates of Bronx juries. According to one writer, Bronx juries are not acquitting at unusually high rates, but are merely at the high end of the norm. See Roger Parloff, Race and Juries: If It Ain't Broke, A.B.A. J., June 1997, at 5, 6 (concluding that the acquittal rate for jury trials in the Bronx of black defendants charged with felonies was 43.6% in 1995 and 39.1% in 1996). But see Benjamin A. Holden et al., Racism on Trial, MONTREAL GAZETTE, Oct. 7, 1995, (Weekly Review), at B1 [hereinafter Holden et al., Racism on Trial] (claiming that in the Bronx, "black defendants are acquitted in felony cases 47.6 per cent of the time-nearly three times the national acquittal rate of 17 per cent for all races") (originally reported in Benjamin A. Holden et al., Color Blinded? Race Seems to Play An Increasing Role in Many Jury Verdicts, WALL ST. J., Oct. 4, 1995, at A1 [hereinafter Holden et al., Race Seems]). Parloff, while challenging others' figures of Bronx acquittal rates as "nearly triple" those of the national average, acknowledged that the figures he offered indicate that the rates of acquittals in the Bronx "are high for state courts in New York, and probably for state courts nationwide." Parloff, supra, at 6. From the interviews he conducted with Bronx judges, prosecutors, and defense attorneys, however, he concluded that nullification is not viewed as a problem, but rather, that there might be greater juror skepticism of police testimony. See id. at 7. In his view, there is no crisis of nullification, much less racially-based nullification. See id. at 72.
173. There is debate about the acquittal rates of Bronx juries. According to one writer, Bronx juries are not acquitting at unusually high rates, but are merely at the high end of the norm. See Roger Parloff, Race and Juries: If It Ain't Broke, A.B.A. J., June 1997, at 5, 6 (concluding that the acquittal rate for jury trials in the Bronx of black defendants charged with felonies was 43.6% in 1995 and 39.1% in 1996). But see Benjamin A. Holden et al., Racism on Trial, MONTREAL GAZETTE, Oct. 7, 1995, (Weekly Review), at B1 [hereinafter Holden et al., Racism on Trial] (claiming that in the Bronx, "black defendants are acquitted in felony cases 47.6 per cent of the time-nearly three times the national acquittal rate of 17 per cent for all races") (originally reported in Benjamin A. Holden et al., Color Blinded? Race Seems to Play An Increasing Role in Many Jury Verdicts, WALL ST. J., Oct. 4, 1995, at A1 [hereinafter Holden et al., Race Seems]). Parloff, while challenging others' figures of Bronx acquittal rates as "nearly triple" those of the national average, acknowledged that the figures he offered indicate that the rates of acquittals in the Bronx "are high for state courts in New York, and probably for state courts nationwide." Parloff, supra, at 6. From the interviews he conducted with Bronx judges, prosecutors, and defense attorneys, however, he concluded that nullification is not viewed as a problem, but rather, that there might be greater juror skepticism of police testimony. See id. at 7. In his view, there is no crisis of nullification, much less racially-based nullification. See id. at 72.
174. There is debate about the acquittal rates of Bronx juries. According to one writer, Bronx juries are not acquitting at unusually high rates, but are merely at the high end of the norm. See Roger Parloff, Race and Juries: If It Ain't Broke, A.B.A. J., June 1997, at 5, 6 (concluding that the acquittal rate for jury trials in the Bronx of black defendants charged with felonies was 43.6% in 1995 and 39.1% in 1996). But see Benjamin A. Holden et al., Racism on Trial, MONTREAL GAZETTE, Oct. 7, 1995, (Weekly Review), at B1 [hereinafter Holden et al., Racism on Trial] (claiming that in the Bronx, "black defendants are acquitted in felony cases 47.6 per cent of the time-nearly three times the national acquittal rate of 17 per cent for all races") (originally reported in Benjamin A. Holden et al., Color Blinded? Race Seems to Play An Increasing Role in Many Jury Verdicts, WALL ST. J., Oct. 4, 1995, at A1 [hereinafter Holden et al., Race Seems]). Parloff, while challenging others' figures of Bronx acquittal rates as "nearly triple" those of the national average, acknowledged that the figures he offered indicate that the rates of acquittals in the Bronx "are high for state courts in New York, and probably for state courts nationwide." Parloff, supra, at 6. From the interviews he conducted with Bronx judges, prosecutors, and defense attorneys, however, he concluded that nullification is not viewed as a problem, but rather, that there might be greater juror skepticism of police testimony. See id. at 7. In his view, there is no crisis of nullification, much less racially-based nullification. See id. at 72.
175. There is debate about the acquittal rates of Bronx juries. According to one writer, Bronx juries are not acquitting at unusually high rates, but are merely at the high end of the norm. See Roger Parloff, Race and Juries: If It Ain't Broke, A.B.A. J., June 1997, at 5, 6 (concluding that the acquittal rate for jury trials in the Bronx of black defendants charged with felonies was 43.6% in 1995 and 39.1% in 1996). But see Benjamin A. Holden et al., Racism on Trial, MONTREAL GAZETTE, Oct. 7, 1995, (Weekly Review), at B1 [hereinafter Holden et al., Racism on Trial] (claiming that in the Bronx, "black defendants are acquitted in felony cases 47.6 per cent of the time-nearly three times the national acquittal rate of 17 per cent for all races") (originally reported in Benjamin A. Holden et al., Color Blinded? Race Seems to Play An Increasing Role in Many Jury Verdicts, WALL ST. J., Oct. 4, 1995, at A1 [hereinafter Holden et al., Race Seems]). Parloff, while challenging others' figures of Bronx acquittal rates as "nearly triple" those of the national average, acknowledged that the figures he offered indicate that the rates of acquittals in the Bronx "are high for state courts in New York, and probably for state courts nationwide." Parloff, supra, at 6. From the interviews he conducted with Bronx judges, prosecutors, and defense attorneys, however, he concluded that nullification is not viewed as a problem, but rather, that there might be greater juror skepticism of police testimony. See id. at 7. In his view, there is no crisis of nullification, much less racially-based nullification. See id. at 72.
176. The increase in acquittal rates is not limited to juries in the Bronx, according to some observers. In areas with large minority populations, such as Washington, D.C. and Wayne County, Michigan, similar increases in acquittal rates have been noted. See, e.g., Holden et al., Racism on Trial, supra note 113, at B1 ("In Washington, D.C., where more than 95 per cent of defendants and 70 per cent of jurors are black, 28.7 per cent of all felony trials ended in acquittals last year, significantly above the national average."); id. ("In Wayne County, Mich., which includes mostly black Detroit, 30 per cent of felony defendants were acquitted in 1993, the last year for which statistics were available."); see also All Things Considered: Simpson Case, supra note 3, available in 1995 WL 9892228 ("[C]ases in Baltimore, New York, and Los Angeles have been cited as anecdotal evidence that African-American juries are engaging in jury nullification. Furthermore, there is evidence of a gradual increase in acquittal rates in some predominantly black cities and regions.") (quoting correspondent Richard Gonzales); Tony Knight, Debating Simpson Verdict Opinion Split on Whether Acquittal Was Really Condemnation of the System, L.A. DAILY NEWS, Oct. 16, 1995, at N1 ("[S]ome court watchers said there is growing evidence that African-American jurors are acquitting defendants of all races more often largely because of their skepticism of the criminal justice system."); Jerome H. Skolnick, Racial Grievances Won O.J. Acquittal, NEWSDAY, Oct. 4, 1995, at A33, available in 1995 WL 5123199 ("Lately, predominantly black juries in Washington, D.C., have been reluctant to convict obviously guilty young African-American men . . . . But these are mostly drug cases, and perhaps jury nullification here is more understandable."); Michael E. Young & Margorie Lambert, Trial Seeped into Every Part of Life Series: The Simpson Verdict, SUNSENTINEL (Ft. Lauderdale), Oct. 3, 1995, at 4A ("[L]egal scholars believe [race-based nullification] is on the rise in the United States, particularly in cases involving non-violent crimes in minority communities."). But see All Things Considered: Simpson Case, supra ("[W]e should be very skeptical of anyone who purports to be identifying a trend around the country or among certain groups because there's just so much that we don't know . . . .") (quoting Jeff White, Associate General Counsel, American Trial Lawyers of America); Richard Goldstein, O.J. Can You See It?, VILLAGE VOICE, Oct. 17, 1995, at 18 ("[D]espite their plausible mistrust of the police, black juries vote to convict most black defendants. That should have been the [Wall Street Journal's] headline . . . ."); Page, supra note 3, at 21A ("It is important to note that black leniency toward black defendants has been vastly overrated by frustrated prosecutors. If black jurors were that lenient, we would not have seen black incarceration rates grow as swiftly as they have in the past three decades . . . .").
177. The increase in acquittal rates is not limited to juries in the Bronx, according to some observers. In areas with large minority populations, such as Washington, D.C. and Wayne County, Michigan, similar increases in acquittal rates have been noted. See, e.g., Holden et al., Racism on Trial, supra note 113, at B1 ("In Washington, D.C., where more than 95 per cent of defendants and 70 per cent of jurors are black, 28.7 per cent of all felony trials ended in acquittals last year, significantly above the national average."); id. ("In Wayne County, Mich., which includes mostly black Detroit, 30 per cent of felony defendants were acquitted in 1993, the last year for which statistics were available."); see also All Things Considered: Simpson Case, supra note 3, available in 1995 WL 9892228 ("[C]ases in Baltimore, New York, and Los Angeles have been cited as anecdotal evidence that African-American juries are engaging in jury nullification. Furthermore, there is evidence of a gradual increase in acquittal rates in some predominantly black cities and regions.") (quoting correspondent Richard Gonzales); Tony Knight, Debating Simpson Verdict Opinion Split on Whether Acquittal Was Really Condemnation of the System, L.A. DAILY NEWS, Oct. 16, 1995, at N1 ("[S]ome court watchers said there is growing evidence that African-American jurors are acquitting defendants of all races more often largely because of their skepticism of the criminal justice system."); Jerome H. Skolnick, Racial Grievances Won O.J. Acquittal, NEWSDAY, Oct. 4, 1995, at A33, available in 1995 WL 5123199 ("Lately, predominantly black juries in Washington, D.C., have been reluctant to convict obviously guilty young African-American men . . . . But these are mostly drug cases, and perhaps jury nullification here is more understandable."); Michael E. Young & Margorie Lambert, Trial Seeped into Every Part of Life Series: The Simpson Verdict, SUNSENTINEL (Ft. Lauderdale), Oct. 3, 1995, at 4A ("[L]egal scholars believe [race-based nullification] is on the rise in the United States, particularly in cases involving non-violent crimes in minority communities."). But see All Things Considered: Simpson Case, supra ("[W]e should be very skeptical of anyone who purports to be identifying a trend around the country or among certain groups because there's just so much that we don't know . . . .") (quoting Jeff White, Associate General Counsel, American Trial Lawyers of America); Richard Goldstein, O.J. Can You See It?, VILLAGE VOICE, Oct. 17, 1995, at 18 ("[D]espite their plausible mistrust of the police, black juries vote to convict most black defendants. That should have been the [Wall Street Journal's] headline . . . ."); Page, supra note 3, at 21A ("It is important to note that black leniency toward black defendants has been vastly overrated by frustrated prosecutors. If black jurors were that lenient, we would not have seen black incarceration rates grow as swiftly as they have in the past three decades . . . .").
178. The increase in acquittal rates is not limited to juries in the Bronx, according to some observers. In areas with large minority populations, such as Washington, D.C. and Wayne County, Michigan, similar increases in acquittal rates have been noted. See, e.g., Holden et al., Racism on Trial, supra note
179. The increase in acquittal rates is not limited to juries in the Bronx, according to some observers. In areas with large minority populations, such as Washington, D.C. and Wayne County, Michigan, similar increases in acquittal rates have been noted. See, e.g., Holden et al., Racism on Trial, supra note 113, at B1 ("In Washington, D.C., where more than 95 per cent of defendants and 70 per cent of jurors are black, 28.7 per cent of all felony trials ended in acquittals last year, significantly above the national average."); id. ("In Wayne County, Mich., which includes mostly black Detroit, 30 per cent of felony defendants were acquitted in 1993, the last year for which statistics were available."); see also All Things Considered: Simpson Case, supra note 3, available in 1995 WL 9892228 ("[C]ases in Baltimore, New York, and Los Angeles have been cited as anecdotal evidence that African-American juries are engaging in jury nullification. Furthermore, there is evidence of a gradual increase in acquittal rates in some predominantly black cities and regions.") (quoting correspondent Richard Gonzales); Tony Knight, Debating Simpson Verdict Opinion Split on Whether Acquittal Was Really Condemnation of the System, L.A. DAILY NEWS, Oct. 16, 1995, at N1 ("[S]ome court watchers said there is growing evidence that African-American jurors are acquitting defendants of all races more often largely because of their skepticism of the criminal justice system."); Jerome H. Skolnick, Racial Grievances Won O.J. Acquittal, NEWSDAY, Oct. 4, 1995, at A33, available in 1995 WL 5123199 ("Lately, predominantly black juries in Washington, D.C., have been reluctant to convict obviously guilty young African-American men . . . . But these are mostly drug cases, and perhaps jury nullification here is more understandable."); Michael E. Young & Margorie Lambert, Trial Seeped into Every Part of Life Series: The Simpson Verdict, SUNSENTINEL (Ft. Lauderdale), Oct. 3, 1995, at 4A ("[L]egal scholars believe [race-based nullification] is on the rise in the United States, particularly in cases involving non-violent crimes in minority communities."). But see All Things Considered: Simpson Case, supra ("[W]e should be very skeptical of anyone who purports to be identifying a trend around the country or among certain groups because there's just so much that we don't know . . . .") (quoting Jeff White, Associate General Counsel, American Trial Lawyers of America); Richard Goldstein, O.J. Can You See It?, VILLAGE VOICE, Oct. 17, 1995, at 18 ("[D]espite their plausible mistrust of the police, black juries vote to convict most black defendants. That should have been the [Wall Street Journal's] headline . . . ."); Page, supra note 3, at 21A ("It is important to note that black leniency toward black defendants has been vastly overrated by frustrated prosecutors. If black jurors were that lenient, we would not have seen black incarceration rates grow as swiftly as they have in the past three decades . . . .").
180. The increase in acquittal rates is not limited to juries in the Bronx, according to some observers. In areas with large minority populations, such as Washington, D.C. and Wayne County, Michigan, similar increases in acquittal rates have been noted. See, e.g., Holden et al., Racism on Trial, supra note 113, at B1 ("In Washington, D.C., where more than 95 per cent of defendants and 70 per cent of jurors are black, 28.7 per cent of all felony trials ended in acquittals last year, significantly above the national average."); id. ("In Wayne County, Mich., which includes mostly black Detroit, 30 per cent of felony defendants were acquitted in 1993, the last year for which statistics were available."); see also All Things Considered: Simpson Case, supra note 3, available in 1995 WL 9892228 ("[C]ases in Baltimore, New York, and Los Angeles have been cited as anecdotal evidence that African-American juries are engaging in jury nullification. Furthermore, there is evidence of a gradual increase in acquittal rates in some predominantly black cities and regions.") (quoting correspondent Richard Gonzales); Tony Knight, Debating Simpson Verdict Opinion Split on Whether Acquittal Was Really Condemnation of the System, L.A. DAILY NEWS, Oct. 16, 1995, at N1 ("[S]ome court watchers said there is growing evidence that African-American jurors are acquitting defendants of all races more often largely because of their skepticism of the criminal justice system."); Jerome H. Skolnick, Racial Grievances Won O.J. Acquittal, NEWSDAY, Oct. 4, 1995, at A33, available in 1995 WL 5123199 ("Lately, predominantly black juries in Washington, D.C., have been reluctant to convict obviously guilty young African-American men . . . . But these are mostly drug cases, and perhaps jury nullification here is more understandable."); Michael E. Young & Margorie Lambert, Trial Seeped into Every Part of Life Series: The Simpson Verdict, SUNSENTINEL (Ft. Lauderdale), Oct. 3, 1995, at 4A ("[L]egal scholars believe [race-based nullification] is on the rise in the United States, particularly in cases involving non-violent crimes in minority communities."). But see All Things Considered: Simpson Case, supra ("[W]e should be very skeptical of anyone who purports to be identifying a trend around the country or among certain groups because there's just so much that we don't know . . . .") (quoting Jeff White, Associate General Counsel, American Trial Lawyers of America); Richard Goldstein, O.J. Can You See It?, VILLAGE VOICE, Oct. 17, 1995, at 18 ("[D]espite their plausible mistrust of the police, black juries vote to convict most black defendants. That should have been the [Wall Street Journal's] headline . . . ."); Page, supra note 3, at 21A ("It is important to note that black leniency toward black defendants has been vastly overrated by frustrated prosecutors. If black jurors were that lenient, we would not have seen black incarceration rates grow as swiftly as they have in the past three decades . . . .").
181. The increase in acquittal rates is not limited to juries in the Bronx, according to some observers. In areas with large minority populations, such as Washington, D.C. and Wayne County, Michigan, similar increases in acquittal rates have been noted. See, e.g., Holden et al., Racism on Trial, supra note 113, at B1 ("In Washington, D.C., where more than 95 per cent of defendants and 70 per cent of jurors are black, 28.7 per cent of all felony trials ended in acquittals last year, significantly above the national average."); id. ("In Wayne County, Mich., which includes mostly black Detroit, 30 per cent of felony defendants were acquitted in 1993, the last year for which statistics were available."); see also All Things Considered: Simpson Case, supra note 3, available in 1995 WL 9892228 ("[C]ases in Baltimore, New York, and Los Angeles have been cited as anecdotal evidence that African-American juries are engaging in jury nullification. Furthermore, there is evidence of a gradual increase in acquittal rates in some predominantly black cities and regions.") (quoting correspondent Richard Gonzales); Tony Knight, Debating Simpson Verdict Opinion Split on Whether Acquittal Was Really Condemnation of the System, L.A. DAILY NEWS, Oct. 16, 1995, at N1 ("[S]ome court watchers said there is growing evidence that African-American jurors are acquitting defendants of all races more often largely because of their skepticism of the criminal justice system."); Jerome H. Skolnick, Racial Grievances Won O.J. Acquittal, NEWSDAY, Oct. 4, 1995, at A33, available in 1995 WL 5123199 ("Lately, predominantly black juries in Washington, D.C., have been reluctant to convict obviously guilty young African-American men . . . . But these are mostly drug cases, and perhaps jury nullification here is more understandable."); Michael E. Young & Margorie Lambert, Trial Seeped into Every Part of Life Series: The Simpson Verdict, SUNSENTINEL (Ft. Lauderdale), Oct. 3, 1995, at 4A ("[L]egal scholars believe [race-based nullification] is on the rise in the United States, particularly in cases involving non-violent crimes in minority communities."). But see All Things Considered: Simpson Case, supra ("[W]e should be very skeptical of anyone who purports to be identifying a trend around the country or among certain groups because there's just so much that we don't know . . . .") (quoting Jeff White, Associate General Counsel, American Trial Lawyers of America); Richard Goldstein, O.J. Can You See It?, VILLAGE VOICE, Oct. 17, 1995, at 18 ("[D]espite their plausible mistrust of the police, black juries vote to convict most black defendants. That should have been the [Wall Street Journal's] headline . . . ."); Page, supra note 3, at 21A ("It is important to note that black leniency toward black defendants has been vastly overrated by frustrated prosecutors. If black jurors were that lenient, we would not have seen black incarceration rates grow as swiftly as they have in the past three decades . . . .").
182. See, e.g., Goldstein, supra note 114, at 18 ("The [Wall Street] Journal might have considered the charges against most of these acquitted defendants. (The war on drugs, as AP reports, has targeted blacks.).").
183. See, e.g., Holden et al., Race Seems, supra note 113, at A1 (offering explanations that include keeping black men in the community, protesting racial injustice, and rejecting a justice system skewed against blacks); Holden et al., Racism on Trial, supra note 113, at B1 ("Some jury-nullification advocates now say blacks are justified in using their jury-room vote to fight what they perceive as a national crisis: a justice system that is skewed against them by courts, prosecutors and racist police like former Los Angeles Detective Mark Fuhrman."); John Kifher, Bronx Juries: A Defense Dream, a Prosecution Nightmare, N.Y. TIMES, Dec. 5, 1988, at B1 ("[I]n the Bronx, . . . the juries in criminal cases - overwhelmingly black and Hispanic - have established a reputation for skepticism of the testimony of police officers, mostly white."); id. ("In the Bronx, [jurors] do not necessarily look at [police] as a friendly force. . . . They are not going to automatically believe a police officer. They will look on him with suspicion.") (quoting attorney William M. Kunstler); Dan Morrison, Odds on Rumble in the Bronx, NEWSDAY, Mar. 22, 1996, at A26 ("The late Mario Merola, the legendary Bronx district attorney, used to bemoan the Bronx juries and once told Newsday that his office's low trial conviction rate was due in part to what he believed was the distrust minority communities had of police.").
184. See, e.g., Holden et al., Race Seems, supra note 113, at A1 (offering explanations that include keeping black men in the community, protesting racial injustice, and rejecting a justice system skewed against blacks); Holden et al., Racism on Trial, supra note 113, at B1 ("Some jury-nullification advocates now say blacks are justified in using their jury-room vote to fight what they perceive as a national crisis: a justice system that is skewed against them by courts, prosecutors and racist police like former Los Angeles Detective Mark Fuhrman."); John Kifher, Bronx Juries: A Defense Dream, a Prosecution Nightmare, N.Y. TIMES, Dec. 5, 1988, at B1 ("[I]n the Bronx, . . . the juries in criminal cases - overwhelmingly black and Hispanic - have established a reputation for skepticism of the testimony of police officers, mostly white."); id. ("In the Bronx, [jurors] do not necessarily look at [police] as a friendly force. . . . They are not going to automatically believe a police officer. They will look on him with suspicion.") (quoting attorney William M. Kunstler); Dan Morrison, Odds on Rumble in the Bronx, NEWSDAY, Mar. 22, 1996, at A26 ("The late Mario Merola, the legendary Bronx district attorney, used to bemoan the Bronx juries and once told Newsday that his office's low trial conviction rate was due in part to what he believed was the distrust minority communities had of police.").
185. See, e.g., Holden et al., Race Seems, supra note 113, at A1 (offering explanations that include keeping black men in the community, protesting racial injustice, and rejecting a justice system skewed against blacks); Holden et al., Racism on Trial, supra note 113, at B1 ("Some jury-nullification advocates now say blacks are justified in using their jury-room vote to fight what they perceive as a national crisis: a justice system that is skewed against them by courts, prosecutors and racist police like former Los Angeles Detective Mark Fuhrman."); John Kifher, Bronx Juries: A Defense Dream, a Prosecution Nightmare, N.Y. TIMES, Dec. 5, 1988, at B1 ("[I]n the Bronx, . . . the juries in criminal cases - overwhelmingly black and Hispanic - have established a reputation for skepticism of the testimony of police officers, mostly white."); id. ("In the Bronx, [jurors] do not necessarily look at [police] as a friendly force. . . . They are not going to automatically believe a police officer. They will look on him with suspicion.") (quoting attorney William M. Kunstler); Dan Morrison, Odds on Rumble in the Bronx, NEWSDAY, Mar. 22, 1996, at A26 ("The late Mario Merola, the legendary Bronx district attorney, used to bemoan the Bronx juries and once told Newsday that his office's low trial conviction rate was due in part to what he believed was the distrust minority communities had of police.").
186. See, e.g., Holden et al., Race Seems, supra note 113, at A1 (offering explanations that include keeping black men in the community, protesting racial injustice, and rejecting a justice system skewed against blacks); Holden et al., Racism on Trial, supra note 113, at B1 ("Some jury-nullification advocates now say blacks are justified in using their jury-room vote to fight what they perceive as a national crisis: a justice system that is skewed against them by courts, prosecutors and racist police like former Los Angeles Detective Mark Fuhrman."); John Kifher, Bronx Juries: A Defense Dream, a Prosecution Nightmare, N.Y. TIMES, Dec. 5, 1988, at B1 ("[I]n the Bronx, . . . the juries in criminal cases - overwhelmingly black and Hispanic - have established a reputation for skepticism of the testimony of police officers, mostly white."); id. ("In the Bronx, [jurors] do not necessarily look at [police] as a friendly force. . . . They are not going to automatically believe a police officer. They will look on him with suspicion.") (quoting attorney William M. Kunstler); Dan Morrison, Odds on Rumble in the Bronx, NEWSDAY, Mar. 22, 1996, at A26 ("The late Mario Merola, the legendary Bronx district attorney, used to bemoan the Bronx juries and once told Newsday that his office's low trial conviction rate was due in part to what he believed was the distrust minority communities had of police.").
187. See, e.g., Holden et al., Race Seems, supra note 113, at A1 (describing a pattern that includes Washington, D.C., the Bronx, Wayne County, Michigan, and other "heavily black urban areas").
188. See Morrison, supra note 116, at A26.
189. See Goldstein, supra note 114, at 21 ("[T]he papers have been full of harrowing tales of false arrest perpetrated against blacks in Philadelphia by a police force so corrupt that hundreds of convictions may be thrown out"); Holden et al., Race Seems, supra note 113, at A1 ('"It's not just race. It's life experiences. Blacks are more likely to have been jacked by the police, and less likely to view police testimony with quite the same pristine validity as a white male from the suburbs.'") (quoting Robert E. Kalunian, Assistant Public Defender for Los Angeles County); see also HENRY LOUIS GATES, JR., THIRTEEN WAYS OF LOOKING AT A BLACK MAN 109 (1997) ("Blacks - in particular, black men - swap their experiences of police encounters like war stories, and there are few who don't have more than one story to tell.").
190. See Goldstein, supra note 114, at 21 ("[T]he papers have been full of harrowing tales of false arrest perpetrated against blacks in Philadelphia by a police force so corrupt that hundreds of convictions may be thrown out"); Holden et al., Race Seems, supra note 113, at A1 ('"It's not just race. It's life experiences. Blacks are more likely to have been jacked by the police, and less likely to view police testimony with quite the same pristine validity as a white male from the suburbs.'") (quoting Robert E. Kalunian, Assistant Public Defender for Los Angeles County); see also HENRY LOUIS GATES, JR., THIRTEEN WAYS OF LOOKING AT A BLACK MAN 109 (1997) ("Blacks - in particular, black men - swap their experiences of police encounters like war stories, and there are few who don't have more than one story to tell.").
191. See Goldstein, supra note 114, at 21 ("[T]he papers have been full of harrowing tales of false arrest perpetrated against blacks in Philadelphia by a police force so corrupt that hundreds of convictions may be thrown out"); Holden et al., Race Seems, supra note 113, at A1 ('"It's not just race. It's life experiences. Blacks are more likely to have been jacked by the police, and less likely to view police testimony with quite the same pristine validity as a white male from the suburbs.'") (quoting Robert E. Kalunian, Assistant Public Defender for Los Angeles County); see also HENRY LOUIS GATES, JR., THIRTEEN WAYS OF LOOKING AT A BLACK MAN 109 (1997) ("Blacks - in particular, black men - swap their experiences of police encounters like war stories, and there are few who don't have more than one story to tell.").
192. Simpson was acquitted by a jury consisting of eight African-American women, one African-American man, two white women, and one Latino man. See Rosen, supra note 38, available in 1996 WL 9233825 (describing jury composition).
193. See, e.g., B.G. Gregg, Simpson: The Civil Verdict: Racial Issues Subdued This Time; Some Hope Trial Promotes Dialogue, CINCINNATI ENQUIRER, Feb. 6, 1997, at A12 ("'Th[e] first jury verdict was not so much an exoneration of O.J. Simpson as it was finding the criminal justice system guilty. Most individual blacks interpreted that as a victory over what was a racist criminal justice system.'") (quoting Rodney D. Coates, director of Black World Studies and associate professor of sociology at Miami University); Marquand & Wood, supra note 3, at 1 ("[Scholars disagree whether Johnnie Cochran's final argument asking the jury to 'send a message' to the Los Angeles Police Department was nullification. Abbe Smith, deputy director of the Criminal Justice Institute of Harvard University, says it probably was."); Editorial, Race Isn't the Issue, PORTLAND OREGONIAN, Feb. 6, 1997, at C8 ("The Simpson acquittal in the criminal trial had to do in large part with the jurors' lack of faith in the criminal justice system to treat black defend[a]nts fairly. That skepticism was borne out by tainted evidence and testimony that echoed a history of official misconduct in the treatment of people of color."); Whitaker, supra note 3, at 28 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.").
194. See, e.g., B.G. Gregg, Simpson: The Civil Verdict: Racial Issues Subdued This Time; Some Hope Trial Promotes Dialogue, CINCINNATI ENQUIRER, Feb. 6, 1997, at A12 ("'Th[e] first jury verdict was not so much an exoneration of O.J. Simpson as it was finding the criminal justice system guilty. Most individual blacks interpreted that as a victory over what was a racist criminal justice system.'") (quoting Rodney D. Coates, director of Black World Studies and associate professor of sociology at Miami University); Marquand & Wood, supra note 3, at 1 ("[Scholars disagree whether Johnnie Cochran's final argument asking the jury to 'send a message' to the Los Angeles Police Department was nullification. Abbe Smith, deputy director of the Criminal Justice Institute of Harvard University, says it probably was."); Editorial, Race Isn't the Issue, PORTLAND OREGONIAN, Feb. 6, 1997, at C8 ("The Simpson acquittal in the criminal trial had to do in large part with the jurors' lack of faith in the criminal justice system to treat black defend[a]nts fairly. That skepticism was borne out by tainted evidence and testimony that echoed a history of official misconduct in the treatment of people of color."); Whitaker, supra note 3, at 28 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.").
195. See, e.g., B.G. Gregg, Simpson: The Civil Verdict: Racial Issues Subdued This Time; Some Hope Trial Promotes Dialogue, CINCINNATI ENQUIRER, Feb. 6, 1997, at A12 ("'Th[e] first jury verdict was not so much an exoneration of O.J. Simpson as it was finding the criminal justice system guilty. Most individual blacks interpreted that as a victory over what was a racist criminal justice system.'") (quoting Rodney D. Coates, director of Black World Studies and associate professor of sociology at Miami University); Marquand & Wood, supra note 3, at 1 ("[Scholars disagree whether Johnnie Cochran's final argument asking the jury to 'send a message' to the Los Angeles Police Department was nullification. Abbe Smith, deputy director of the Criminal Justice Institute of Harvard University, says it probably was."); Editorial, Race Isn't the Issue, PORTLAND OREGONIAN, Feb. 6, 1997, at C8 ("The Simpson acquittal in the criminal trial had to do in large part with the jurors' lack of faith in the criminal justice system to treat black defend[a]nts fairly. That skepticism was borne out by tainted evidence and testimony that echoed a history of official misconduct in the treatment of people of color."); Whitaker, supra note 3, at 28 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.").
196. See, e.g., B.G. Gregg, Simpson: The Civil Verdict: Racial Issues Subdued This Time; Some Hope Trial Promotes Dialogue, CINCINNATI ENQUIRER, Feb. 6, 1997, at A12 ("'Th[e] first jury verdict was not so much an exoneration of O.J. Simpson as it was finding the criminal justice system guilty. Most individual blacks interpreted that as a victory over what was a racist criminal justice system.'") (quoting Rodney D. Coates, director of Black World Studies and associate professor of sociology at Miami University); Marquand & Wood, supra note 3, at 1 ("[Scholars disagree whether Johnnie Cochran's final argument asking the jury to 'send a message' to the Los Angeles Police Department was nullification. Abbe Smith, deputy director of the Criminal Justice Institute of Harvard University, says it probably was."); Editorial, Race Isn't the Issue, PORTLAND OREGONIAN, Feb. 6, 1997, at C8 ("The Simpson acquittal in the criminal trial had to do in large part with the jurors' lack of faith in the criminal justice system to treat black defend[a]nts fairly. That skepticism was borne out by tainted evidence and testimony that echoed a history of official misconduct in the treatment of people of color."); Whitaker, supra note 3, at 28 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police.").
197. Indeed, it was the Vietnam war that sparked a debate among legal scholars about whether courts should instruct juries on their power to nullify. Up until that time, there had been sparse interest in the subject. See Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 175 (1991) ("The controversy over the propriety of a jury nullification instruction lay dormant for most of this century until resurrected in the 1960s as part of the defense strategy in anti-Vietnam War demonstration trials."); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 836 (1990) ("After Sparf and Hansen [v. United States, 156 U.S. 51 (1895)], the issue of jury nullification did not arise again in the federal courts until the 1960s, when conscientious objectors and protesters against government policy began to demand that their juries be informed about the power to nullify."). For those who advocated such an instruction, see Sax, supra note 112, at 481; Scheflin, supra note 36, at 168; Jon M. Van Dyke, The Jury as a Political Institution, 16 CATH. LAW. 224, 225 (1970) ("My thesis is that justice would be better served if jurors were told that they have the power to act mercifully if they decide that applying the law to the defendant's act would lead to an unjust result."); for those who opposed such an instruction, see Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 TEX. L. REV. 488, 490 (1977) ("I argue that jury nullification has no place, historically or functionally, in the federal jurisprudence. I then suggest that jury nullification in the federal courts may be not only unprecedented and unwise but unconstitutional as well.").
198. Indeed, it was the Vietnam war that sparked a debate among legal scholars about whether courts should instruct juries on their power to nullify. Up until that time, there had been sparse interest in the subject. See Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 175 (1991) ("The controversy over the propriety of a jury nullification instruction lay dormant for most of this century until resurrected in the 1960s as part of the defense strategy in anti-Vietnam War demonstration trials."); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 836 (1990) ("After Sparf and Hansen [v. United States, 156 U.S. 51 (1895)], the issue of jury nullification did not arise again in the federal courts until the 1960s, when conscientious objectors and protesters against government policy began to demand that their juries be informed about the power to nullify."). For those who advocated such an instruction, see Sax, supra note 112, at 481; Scheflin, supra note 36, at 168; Jon M. Van Dyke, The Jury as a Political Institution, 16 CATH. LAW. 224, 225 (1970) ("My thesis is that justice would be better served if jurors were told that they have the power to act mercifully if they decide that applying the law to the defendant's act would lead to an unjust result."); for those who opposed such an instruction, see Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 TEX. L. REV. 488, 490 (1977) ("I argue that jury nullification has no place, historically or functionally, in the federal jurisprudence. I then suggest that jury nullification in the federal courts may be not only unprecedented and unwise but unconstitutional as well.").
199. Indeed, it was the Vietnam war that sparked a debate among legal scholars about whether courts should instruct juries on their power to nullify. Up until that time, there had been sparse interest in the subject. See Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 175 (1991) ("The controversy over the propriety of a jury nullification instruction lay dormant for most of this century until resurrected in the 1960s as part of the defense strategy in anti-Vietnam War demonstration trials."); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 836 (1990) ("After Sparf and Hansen [v. United States, 156 U.S. 51 (1895)], the issue of jury nullification did not arise again in the federal courts until the 1960s, when conscientious objectors and protesters against government policy began to demand that their juries be informed about the power to nullify."). For those who advocated such an instruction, see Sax, supra note 112, at 481; Scheflin, supra note 36, at 168; Jon M. Van Dyke, The Jury as a Political Institution, 16 CATH. LAW. 224, 225 (1970) ("My thesis is that justice would be better served if jurors were told that they have the power to act mercifully if they decide that applying the law to the defendant's act would lead to an unjust result."); for those who opposed such an instruction, see Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 TEX. L. REV. 488, 490 (1977) ("I argue that jury nullification has no place, historically or functionally, in the federal jurisprudence. I then suggest that jury nullification in the federal courts may be not only unprecedented and unwise but unconstitutional as well.").
200. Indeed, it was the Vietnam war that sparked a debate among legal scholars about whether courts should instruct juries on their power to nullify. Up until that time, there had been sparse interest in the subject. See Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 175 (1991) ("The controversy over the propriety of a jury nullification instruction lay dormant for most of this century until resurrected in the 1960s as part of the defense strategy in anti-Vietnam War demonstration trials."); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 836 (1990) ("After Sparf and Hansen [v. United States, 156 U.S. 51 (1895)], the issue of jury nullification did not arise again in the federal courts until the 1960s, when conscientious objectors and protesters against government policy began to demand that their juries be informed about the power to nullify."). For those who advocated such an instruction, see Sax, supra note 112, at 481; Scheflin, supra note 36, at 168; Jon M. Van Dyke, The Jury as a Political Institution, 16 CATH. LAW. 224, 225 (1970) ("My thesis is that justice would be better served if jurors were told that they have the power to act mercifully if they decide that applying the law to the defendant's act would lead to an unjust result."); for those who opposed such an instruction, see Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 TEX. L. REV. 488, 490 (1977) ("I argue that jury nullification has no place, historically or functionally, in the federal jurisprudence. I then suggest that jury nullification in the federal courts may be not only unprecedented and unwise but unconstitutional as well.").
201. Indeed, it was the Vietnam war that sparked a debate among legal scholars about whether courts should instruct juries on their power to nullify. Up until that time, there had been sparse interest in the subject. See Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 175 (1991) ("The controversy over the propriety of a jury nullification instruction lay dormant for most of this century until resurrected in the 1960s as part of the defense strategy in anti-Vietnam War demonstration trials."); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 836 (1990) ("After Sparf and Hansen [v. United States, 156 U.S. 51 (1895)], the issue of jury nullification did not arise again in the federal courts until the 1960s, when conscientious objectors and protesters against government policy began to demand that their juries be informed about the power to nullify."). For those who advocated such an instruction, see Sax, supra note 112, at 481; Scheflin, supra note 36, at 168; Jon M. Van Dyke, The Jury as a Political Institution, 16 CATH. LAW. 224, 225 (1970) ("My thesis is that justice would be better served if jurors were told that they have the power to act mercifully if they decide that applying the law to the defendant's act would lead to an unjust result."); for those who opposed such an instruction, see Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 TEX. L. REV. 488, 490 (1977) ("I argue that jury nullification has no place, historically or functionally, in the federal jurisprudence. I then suggest that jury nullification in the federal courts may be not only unprecedented and unwise but unconstitutional as well.").
202. Indeed, it was the Vietnam war that sparked a debate among legal scholars about whether courts should instruct juries on their power to nullify. Up until that time, there had been sparse interest in the subject. See Alan W. Scheflin & Jon M. Van Dyke, Merciful Juries: The Resilience of Jury Nullification, 48 WASH. & LEE L. REV. 165, 175 (1991) ("The controversy over the propriety of a jury nullification instruction lay dormant for most of this century until resurrected in the 1960s as part of the defense strategy in anti-Vietnam War demonstration trials."); Chaya Weinberg-Brodt, Note, Jury Nullification and Jury-Control Procedures, 65 N.Y.U. L. REV. 825, 836 (1990) ("After Sparf and Hansen [v. United States, 156 U.S. 51 (1895)], the issue of jury nullification did not arise again in the federal courts until the 1960s, when conscientious objectors and protesters against government policy began to demand that their juries be informed about the power to nullify."). For those who advocated such an instruction, see Sax, supra note 112, at 481; Scheflin, supra note 36, at 168; Jon M. Van Dyke, The Jury as a Political Institution, 16 CATH. LAW. 224, 225 (1970) ("My thesis is that justice would be better served if jurors were told that they have the power to act mercifully if they decide that applying the law to the defendant's act would lead to an unjust result."); for those who opposed such an instruction, see Gary J. Simson, Jury Nullification in the American System: A Skeptical View, 54 TEX. L. REV. 488, 490 (1977) ("I argue that jury nullification has no place, historically or functionally, in the federal jurisprudence. I then suggest that jury nullification in the federal courts may be not only unprecedented and unwise but unconstitutional as well.").
203. See Selective Service Act of 1948, ch. 625, Title I, 62 Stat 604 (codified as amended at 50 App. U.S.C.A. § 451).
204. See, e.g., United States v. Simpson, 460 F.2d 515 (9th Cir. 1972); United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969) (involving nine members of the Catholic clergy who entered a Local Board of the Selective Service System in Catonsville, Maryland, removed draft files and destroyed them with homemade napalm; they sought and were denied a nullification instruction and were convicted); United States v. Anderson, Crim. No. 602-71 (D.N.J. 1973), cited in Scheflin & Van Dyke, supra note 87, at 52 & n.1 (recounting the acquittals of 28 defendants who were charged with destroying records of their local selective service office, but who were allowed to make statements about their feelings on the Vietnam War and whose jury was instructed on nullification).
205. See, e.g., United States v. Boardman, 419 F.2d 110 (1st Cir. 1969).
206. See, e.g., United States v. Spock, 416 F.2d 165 (1st Cir. 1969).
207. See, e.g., United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) (describing the case of the "D.C. Nine," who broke into the Dow Chemical Company offices and vandalized them in protest of Dow's manufacture of napalm). In Dougherty, the defendants were convicted of the violations with which they had been charged. On appeal, they claimed that they should have been permitted to inform the jury about nullification or that the court should have instructed the jury about nullification. In a 2-1 decision, Judge Leventhal, writing for the court, held that there is no right to instruct the jury about the jury's power to nullify; rather, the jury will reach that knowledge if the jurors are so moved by their sense of justice. To tell juries of this power, according to Judge Leventhal, would run the risk that they would exercise it far too freely. In a powerful dissent, Chief Judge Bazelon explained why juries should be educated as to their power. The exchange between Judge Leventhal and Chief Judge Bazelon offers one of the more interesting and comprehensive debates between judges on the question whether juries should be told about their power to nullify. Federal Circuits remain unanimous in their view that juries should not be so instructed. See Marder, supra note 39, at n.116 (reviewing case law).
208. See, e.g., STEVEN E. BARKAN, PROTESTERS ON TRIAL: CRIMINAL JUSTICE IN THE SOUTHERN CIVIL RIGHTS AND VIETNAM ANTIWAR MOVEMENTS 143 (1985) (describing the acquittal of ten protesters who had been charged with blocking a munitions train carrying bombs for Vietnam); Scheflin, supra note 36, at 199 (describing the acquittal of "the Oakland Seven," who had been indicted for conspiracy (a felony) to commit the misdemeanors of trespass, creating a public nuisance, and resisting arrest, when demonstrators attempted to interfere with the activities of the Oakland Armed Forces Induction Center in October, 1967). Although Scheflin acknowledged that this might have been a case of reasonable doubt rather than nullification, he relied on post-verdict interviews conducted by Elinor Langer for The Atlantic to support the view that it was the latter rather than the former. See Scheflin, supra, at 200.
209. See, e.g., STEVEN E. BARKAN, PROTESTERS ON TRIAL: CRIMINAL JUSTICE IN THE SOUTHERN CIVIL RIGHTS AND VIETNAM ANTIWAR MOVEMENTS 143 (1985) (describing the acquittal of ten protesters who had been charged with blocking a munitions train carrying bombs for Vietnam); Scheflin, supra note 36, at 199 (describing the acquittal of "the Oakland Seven," who had been indicted for conspiracy (a felony) to commit the misdemeanors of trespass, creating a public nuisance, and resisting arrest, when demonstrators attempted to interfere with the activities of the Oakland Armed Forces Induction Center in October, 1967). Although Scheflin acknowledged that this might have been a case of reasonable doubt rather than nullification, he relied on post-verdict interviews conducted by Elinor Langer for The Atlantic to support the view that it was the latter rather than the former. See Scheflin, supra, at 200.
210. See, e.g., STEVEN E. BARKAN, PROTESTERS ON TRIAL: CRIMINAL JUSTICE IN THE SOUTHERN CIVIL RIGHTS AND VIETNAM ANTIWAR MOVEMENTS 143 (1985) (describing the acquittal of ten protesters who had been charged with blocking a munitions train carrying bombs for Vietnam); Scheflin, supra note 36, at 199 (describing the acquittal of "the Oakland Seven," who had been indicted for conspiracy (a felony) to commit the misdemeanors of trespass, creating a public nuisance, and resisting arrest, when demonstrators attempted to interfere with the activities of the Oakland Armed Forces Induction Center in October, 1967). Although Scheflin acknowledged that this might have been a case of reasonable doubt rather than nullification, he relied on post-verdict interviews conducted by Elinor Langer for The Atlantic to support the view that it was the latter rather than the former. See Scheflin, supra, at 200.
211. See Horowitz, The Impact of Judicial Instructions, supra note 35, at 441 ("The evidence reveals that juries convicted at a higher rate in draft evasion cases when a war was popular than when the war (Vietnam and Korea) lost public support.") (summarizing the results of James Levine).
212. See James P. Levine, The Legislative Role of Juries, 1984 AM. B. FOUND. RES. J. 605, 606, 615-18 (comparing public opinion polls on the Vietnam War with conviction rates among draft resisters and finding that as the war became more unpopular, conviction rates in selective service cases decreased).
213. 2 FEDERAL JURY PRACTICE AND INSTRUCTIONS § 10.01, at 256 (1987).
214. Id.
215. Id. at 259.
216. See, e.g., id. at 263 ("You, and you alone, are the judge of facts.") (quoting Fifth Circuit instruction); id. at 275 ("By your verdicts) you will decide the disputed issues of fact") (quoting Eleventh Circuit instruction); id. at 329 ("It is your duty to find the facts from all the evidence in the case.") (quoting Ninth Circuit instruction).
217. Id. at 329, § 12.01 (quoting Eighth Circuit instruction).
218. Of course there are some who believe that legislative history should not be used as an aid in construing a statute or attempting to understand the intent of Congress. Justice Scalia, for example, has renounced the use of legislative history. Among his many objections are the following: it tends to be used selectively simply to support one's construction of the statute, see Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) ("Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends."); the statute is the law, not the legislative history, see id. at 519 ("We are governed by laws, not by the intentions of legislators."); Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 616, 621 (1991) (Scalia, J., concurring) ("[W]e are a Government of laws, not of committee reports."); and if words of the statute are not clear then Congress, and not the Court, should rewrite them. See Conroy v. Aniskoff, 507 U.S. at 528 ("The language of the statute is entirely clear, and if that is not what Congress meant then Congress has made a mistake and Congress will have to correct it."). See generally ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 29-37 (1997). But see Stephen Breyer, The 1991 Justice Lester W. Roth Lecture: On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845 (1992) (defending the use of legislative history as an aid to statutory construction).
219. Of course there are some who believe that legislative history should not be used as an aid in construing a statute or attempting to understand the intent of Congress. Justice Scalia, for example, has renounced the use of legislative history. Among his many objections are the following: it tends to be used selectively simply to support one's construction of the statute, see Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) ("Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends."); the statute is the law, not the legislative history, see id. at 519 ("We are governed by laws, not by the intentions of legislators."); Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 616, 621 (1991) (Scalia, J., concurring) ("[W]e are a Government of laws, not of committee reports."); and if words of the statute are not clear then Congress, and not the Court, should rewrite them. See Conroy v. Aniskoff, 507 U.S. at 528 ("The language of the statute is entirely clear, and if that is not what Congress meant then Congress has made a mistake and Congress will have to correct it."). See generally ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 29-37 (1997). But see Stephen Breyer, The 1991 Justice Lester W. Roth Lecture: On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845 (1992) (defending the use of legislative history as an aid to statutory construction).
220. Of course there are some who believe that legislative history should not be used as an aid in construing a statute or attempting to understand the intent of Congress. Justice Scalia, for example, has renounced the use of legislative history. Among his many objections are the following: it tends to be used selectively simply to support one's construction of the statute, see Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) ("Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends."); the statute is the law, not the legislative history, see id. at 519 ("We are governed by laws, not by the intentions of legislators."); Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 616, 621 (1991) (Scalia, J., concurring) ("[W]e are a Government of laws, not of committee reports."); and if words of the statute are not clear then Congress, and not the Court, should rewrite them. See Conroy v. Aniskoff, 507 U.S. at 528 ("The language of the statute is entirely clear, and if that is not what Congress meant then Congress has made a mistake and Congress will have to correct it."). See generally ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 29-37 (1997). But see Stephen Breyer, The 1991 Justice Lester W. Roth Lecture: On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845 (1992) (defending the use of legislative history as an aid to statutory construction).
221. See, e.g., George C. Christie, Lawful Departures From Legal Rules: "Jury Nullification" and Legitimated Disobedience, 62 CAL. L. REV. 1289, 1300 (1974) (reviewing KADISH & RADISH, supra note 34) ("[W]hy should the articulation and ordering of these ends be the function of private citizens who are randomly selected and largely unable to assess the importance of consistency in applying the law in question? Should not this function be left to a popularly elected legislature?"); Simson, supra note 122, at 507 ("The recently proposed right to nullify . . . is not a right for jurors to act like judges but, rather, one for them to take on the role of legislators. Like a legislature, a jury with a right to nullify defines blameworthy conduct according to its own notions of justice."); id. at 508 ("The need for protection against unjust laws is primarily a function of the lawmaker's responsiveness to the people's will."); id. at 513 n.111 ("[J]ury nullification denies the legislative process in a democracy."); see also KADISH & KADISH, supra note 34, at 49 (describing, but not subscribing to, the conventional view as "the-rule-of-law model" which views nullification with disfavor because it "would invite any jury to abrogate a law duly enacted by the legislature on the basis of its own views. Protection against bad laws should not come through the nullification of democratically enacted legislation by any dozen jurors, but through the established democratic processes for changing the law.").
222. See, e.g., George C. Christie, Lawful Departures From Legal Rules: "Jury Nullification" and Legitimated Disobedience, 62 CAL. L. REV. 1289, 1300 (1974) (reviewing KADISH & RADISH, supra note 34) ("[W]hy should the articulation and ordering of these ends be the function of private citizens who are randomly selected and largely unable to assess the importance of consistency in applying the law in question? Should not this function be left to a popularly elected legislature?"); Simson, supra note 122, at 507 ("The recently proposed right to nullify . . . is not a right for jurors to act like judges but, rather, one for them to take on the role of legislators. Like a legislature, a jury with a right to nullify defines blameworthy conduct according to its own notions of justice."); id. at 508 ("The need for protection against unjust laws is primarily a function of the lawmaker's responsiveness to the people's will."); id. at 513 n.111 ("[J]ury nullification denies the legislative process in a democracy."); see also KADISH & KADISH, supra note 34, at 49 (describing, but not subscribing to, the conventional view as "the-rule-of-law model" which views nullification with disfavor because it "would invite any jury to abrogate a law duly enacted by the legislature on the basis of its own views. Protection against bad laws should not come through the nullification of democratically enacted legislation by any dozen jurors, but through the established democratic processes for changing the law.").
223. See KADISH & KADISH, supra note 34, at 56-57. These authors describe the conventional view, to which they do not subscribe, as follows: According to this way of understanding the situation, official formulations fully state the jury's proper role, which is strictly that of a fact-finding agency. A jury reaches its general verdict by deciding the facts of the case and applying the law as given by the judge. Of no consequence are its own sentiments concerning the law's justness . . . . When juries reach verdicts that run counter to the judge's instructions, they usurp a discretion not theirs to exercise. That jury nullification has sometimes produced good results does not show that nullification is within the jury's legal role. Id.
224. See, e.g., Dougherty, 473 F.2d at 1133 ("This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. . . ."); Stephen J. Adler, Courtroom Putsch? Jurors Should Reject Laws They Don't Like. Activist Group Argues, WALL ST. J., Jan. 4, 1991, at A1 (quoting former Federal Judge and Director of the Federal Judicial Center, William Schwarzer, who described nullification as producing "chaos and lawlessness"); Bruce Fein, Judge, Jury . . . and the Sixth, WASH. TIMES, Nov. 8, 1990, at G3 ("The jury is not a minidemocracy or a minilegislature. They are not to go back and do right as they see fit. That's anarchy. They are supposed to follow the law." (quoting Judge Thomas Penfield Jackson commenting on the jury verdict in the trial of Mayor Marion Barry, in which he was acquitted of the most serious charges)).
225. See, e.g., Dougherty, 473 F.2d at 1133 ("This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. . . ."); Stephen J. Adler, Courtroom Putsch? Jurors Should Reject Laws They Don't Like. Activist Group Argues, WALL ST. J., Jan. 4, 1991, at A1 (quoting former Federal Judge and Director of the Federal Judicial Center, William Schwarzer, who described nullification as producing "chaos and lawlessness"); Bruce Fein, Judge, Jury . . . and the Sixth, WASH. TIMES, Nov. 8, 1990, at G3 ("The jury is not a minidemocracy or a minilegislature. They are not to go back and do right as they see fit. That's anarchy. They are supposed to follow the law." (quoting Judge Thomas Penfield Jackson commenting on the jury verdict in the trial of Mayor Marion Barry, in which he was acquitted of the most serious charges)).
226. See, e.g., Dougherty, 473 F.2d at 1133 ("This so-called right of jury nullification is put forward in the name of liberty and democracy, but its explicit avowal risks the ultimate logic of anarchy. . . ."); Stephen J. Adler, Courtroom Putsch? Jurors Should Reject Laws They Don't Like. Activist Group Argues, WALL ST. J., Jan. 4, 1991, at A1 (quoting former Federal Judge and Director of the Federal Judicial Center, William Schwarzer, who described nullification as producing "chaos and lawlessness"); Bruce Fein, Judge, Jury . . . and the Sixth, WASH. TIMES, Nov. 8, 1990, at G3 ("The jury is not a minidemocracy or a minilegislature. They are not to go back and do right as they see fit. That's anarchy. They are supposed to follow the law." (quoting Judge Thomas Penfield Jackson commenting on the jury verdict in the trial of Mayor Marion Barry, in which he was acquitted of the most serious charges)).
227. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
228. Id. at 113-15.
229. Id. at 141.
230. See id. at 113 ("If you ask how [the judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself.").
231. Another area involving mixed questions of fact and law is the determination of "voluntariness" in the context of a federal habeas petition. See, e.g., Miller v. Fenton, 474 U.S. 104 (1985). In Miller, the Court had to decide whether the voluntariness of a confession made by petitioner was a factual determination, entitled to a presumption of correctness under 28 U.S.C. § 2254(d), or whether it was a legal question requiring independent federal review. The Court decided to adhere to its longstanding view that it was "a legal inquiry requiring plenary federal review," id. at 115, but not before acknowledging that "[i]n the § 2254(d) context, as elsewhere, the appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive" and that "the Court has yet to arrive at 'a rule or principle that will unerringly distinguish a factual finding from a legal conclusion.'" Id. at 112-13.
232. See Wells, supra note 28, at 2388 ("It is frequently acknowledged that the jury has broad discretion in deciding negligence cases. Negligence cases are 'mixed' in the sense that factual and legal questions are so intertwined that the roles of judge and jury cannot be separated cleanly."); Stephen C. Yeazell, The New Jury and the Ancient Jury Conflict, 1990 U. CHI. LEGAL F. 87, 113-17.
233. See Wells, supra note 28, at 2388 ("It is frequently acknowledged that the jury has broad discretion in deciding negligence cases. Negligence cases are 'mixed' in the sense that factual and legal questions are so intertwined that the roles of judge and jury cannot be separated cleanly."); Stephen C. Yeazell, The New Jury and the Ancient Jury Conflict, 1990 U. CHI. LEGAL F. 87, 113-17.
234. Of course, even factfinding, which is the narrowest conception of the jury's role, involves interpretation. To arrive at "the facts," jurors must weigh evidence and credibility of witnesses, which involves interpretation of what they are seeing and hearing. From this pastiche, jurors must construct a version of the facts that makes sense to them. Some have suggested that jurors begin the trial process with a framework or story into which they place information that is presented at trial. See, e.g., Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 521 (1991) ("[O]ne central claim of the model is that the story the juror constructs determines the juror's decision."); id. at 525 ("Because all jurors hear the same evidence and have the same general knowledge about the expected structure of stories, differences in story construction must arise from differences in world knowledge; that is, differences in experiences and beliefs about the social world."); Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. PERSONALITY & SOC. PSYCHOL. 242 (1986) (finding that jurors organize trial evidence into a story framework); Nancy Pennington & Reid Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making, 62 J. PERSONALITY & SOC. PSYCHOL. 189, 189 (1992) ("The Story Model is based on the hypothesis that jurors impose a narrative story organization on trial information . . . ."); Daniel Goleman, Jurors Hear Evidence and Turn It into Stories, N.Y. TIMES, May 12, 1992, at C1 (explaining that people "process [evidence] as they go along, composing a continuing story throughout the trial that makes sense of what they're hearing").
235. Of course, even factfinding, which is the narrowest conception of the jury's role, involves interpretation. To arrive at "the facts," jurors must weigh evidence and credibility of witnesses, which involves interpretation of what they are seeing and hearing. From this pastiche, jurors must construct a version of the facts that makes sense to them. Some have suggested that jurors begin the trial process with a framework or story into which they place information that is presented at trial. See, e.g., Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 521 (1991) ("[O]ne central claim of the model is that the story the juror constructs determines the juror's decision."); id. at 525 ("Because all jurors hear the same evidence and have the same general knowledge about the expected structure of stories, differences in story construction must arise from differences in world knowledge; that is, differences in experiences and beliefs about the social world."); Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. PERSONALITY & SOC. PSYCHOL. 242 (1986) (finding that jurors organize trial evidence into a story framework); Nancy Pennington & Reid Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making, 62 J. PERSONALITY & SOC. PSYCHOL. 189, 189 (1992) ("The Story Model is based on the hypothesis that jurors impose a narrative story organization on trial information . . . ."); Daniel Goleman, Jurors Hear Evidence and Turn It into Stories, N.Y. TIMES, May 12, 1992, at C1 (explaining that people "process [evidence] as they go along, composing a continuing story throughout the trial that makes sense of what they're hearing").
236. Of course, even factfinding, which is the narrowest conception of the jury's role, involves interpretation. To arrive at "the facts," jurors must weigh evidence and credibility of witnesses, which involves interpretation of what they are seeing and hearing. From this pastiche, jurors must construct a version of the facts that makes sense to them. Some have suggested that jurors begin the trial process with a framework or story into which they place information that is presented at trial. See, e.g., Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 521 (1991) ("[O]ne central claim of the model is that the story the juror constructs determines the juror's decision."); id. at 525 ("Because all jurors hear the same evidence and have the same general knowledge about the expected structure of stories, differences in story construction must arise from differences in world knowledge; that is, differences in experiences and beliefs about the social world."); Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. PERSONALITY & SOC. PSYCHOL. 242 (1986) (finding that jurors organize trial evidence into a story framework); Nancy Pennington & Reid Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making, 62 J. PERSONALITY & SOC. PSYCHOL. 189, 189 (1992) ("The Story Model is based on the hypothesis that jurors impose a narrative story organization on trial information . . . ."); Daniel Goleman, Jurors Hear Evidence and Turn It into Stories, N.Y. TIMES, May 12, 1992, at C1 (explaining that people "process [evidence] as they go along, composing a continuing story throughout the trial that makes sense of what they're hearing").
237. Of course, even factfinding, which is the narrowest conception of the jury's role, involves interpretation. To arrive at "the facts," jurors must weigh evidence and credibility of witnesses, which involves interpretation of what they are seeing and hearing. From this pastiche, jurors must construct a version of the facts that makes sense to them. Some have suggested that jurors begin the trial process with a framework or story into which they place information that is presented at trial. See, e.g., Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story Model, 13 CARDOZO L. REV. 519, 521 (1991) ("[O]ne central claim of the model is that the story the juror constructs determines the juror's decision."); id. at 525 ("Because all jurors hear the same evidence and have the same general knowledge about the expected structure of stories, differences in story construction must arise from differences in world knowledge; that is, differences in experiences and beliefs about the social world."); Nancy Pennington & Reid Hastie, Evidence Evaluation in Complex Decision Making, 51 J. PERSONALITY & SOC. PSYCHOL. 242 (1986) (finding that jurors organize trial evidence into a story framework); Nancy Pennington & Reid Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making, 62 J. PERSONALITY & SOC. PSYCHOL. 189, 189 (1992) ("The Story Model is based on the hypothesis that jurors impose a narrative story organization on trial information . . . ."); Daniel Goleman, Jurors Hear Evidence and Turn It into Stories, N.Y. TIMES, May 12, 1992, at C1 (explaining that people "process [evidence] as they go along, composing a continuing story throughout the trial that makes sense of what they're hearing").
238. See Yeazell, supra note 145, at 113.
239. Id. at 114.
240. Judge Kozinski lamented this process in which juries award punitive damages even though the defendant's activity is authorized by legislation. He decried the jury's role as that of a "minilegislature," which is "at odds with the central democratic principle that policy questions are decided by the people's elected representatives." Alex Kozinski, The Case of Punitive Damages v. Democracy, WALL ST. J., Jan. 19, 1995, at A18. According to Judge Kozinski, "juries imposing punitive damages may be usurping the role of the legislature, thereby benefiting a few plaintiffs and their lawyers, but denying the large majority of the people goods and services that make life safer, easier and more enjoyable." Id.
241. Yeazell, supra note 145, at 114.
242. See, e.g., Victor v. Nebraska, 511 U.S. 1,25 (1994) (Ginsburg, J., concurring) ("This Court, too, has suggested on occasion that prevailing definitions of 'reasonable doubt' afford no real aid."); United States v. Adkins, 937 F.2d 947, 950 (4th Cir. 1991) ("This circuit has repeatedly warned against giving the jury definitions of reasonable doubt, because definitions tend to impermissibly lessen the burden of proof."); United States v. Hall, 854 F.2d 1036, 1039 (7th Cir. 1988) ("An attempt to define reasonable doubt presents a risk without any real benefit.").
243. Cage v. Louisiana, 498 U.S. 39, 41 (1990) (per curiam).
244. The Federal Judicial Center's pattern instruction informs jurors: "Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt." FEDERAL JUDICIAL CTR., PATTERN CRIMINAL JURY INSTRUCTIONS 28 (1988) (instruction 21).
245. See, e.g., Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 HARV. L. REV. 582, 591 (1939) ("The judges in Rhode Island held office not for the purpose of deciding cases, for the jury decided all questions of law and fact; but merely to preserve order, and see that the parties had a fair chance with the jury.") (quotation omitted).
246. For example, in California, a judge typically instructs jurors that they have "a duty to apply the law as I give it to you to the facts as you determine them." CALIFORNIA JURY INSTRUCTIONS, CRIMINAL (CALJIC), no. 1.00 (1989). In some federal courts, jurors are instructed as follows: It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judge of facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law which I will give to you. That is how you will reach your verdict. In doing so you must follow that law whether you agree with it or not. MANUAL OF MODERN CRIMINAL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT, nos. 1.01 and 3.01 (1992). Today, only two states, Indiana and Maryland, still instruct jurors that they have the right to determine the law as well as the facts. These two states' respective constitutions provide for this right See IND. CONST. art. 1, § 19 (In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts."); MD. CONST. DECLARATION OF RIGHTS art. 23 ("In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."). However, in both states, the judiciary has narrowed this right through case law. See, e.g., Beavers v. State, 141 N.E.2d 118,125 (Ind. 1957) ("Although the constitution gives the jury the right to determine the law in criminal cases, it does not follow . . . that it is an 'exclusive' right . . . . Neither does it follow . . . that the jury is the judge of the law at every step in the proceedings."); Montgomery v. State, 437 A.2d 654, 656 (Md. 1981) ("[T]he jury's role in judging the law under Article 23 is confined 'to resolv[ing] conflicting interpretations of the law . . . and to decid[ing] whether th[at] law should be applied in dubious factual situations,' and nothing more.").
247. For example, in California, a judge typically instructs jurors that they have "a duty to apply the law as I give it to you to the facts as you determine them." CALIFORNIA JURY INSTRUCTIONS, CRIMINAL (CALJIC), no. 1.00 (1989). In some federal courts, jurors are instructed as follows: It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judge of facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law which I will give to you. That is how you will reach your verdict. In doing so you must follow that law whether you agree with it or not. MANUAL OF MODERN CRIMINAL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT, nos. 1.01 and 3.01 (1992). Today, only two states, Indiana and Maryland, still instruct jurors that they have the right to determine the law as well as the facts. These two states' respective constitutions provide for this right See IND. CONST. art. 1, § 19 (In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts."); MD. CONST. DECLARATION OF RIGHTS art. 23 ("In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."). However, in both states, the judiciary has narrowed this right through case law. See, e.g., Beavers v. State, 141 N.E.2d 118,125 (Ind. 1957) ("Although the constitution gives the jury the right to determine the law in criminal cases, it does not follow . . . that it is an 'exclusive' right . . . . Neither does it follow . . . that the jury is the judge of the law at every step in the proceedings."); Montgomery v. State, 437 A.2d 654, 656 (Md. 1981) ("[T]he jury's role in judging the law under Article 23 is confined 'to resolv[ing] conflicting interpretations of the law . . . and to decid[ing] whether th[at] law should be applied in dubious factual situations,' and nothing more.").
248. For example, in California, a judge typically instructs jurors that they have "a duty to apply the law as I give it to you to the facts as you determine them." CALIFORNIA JURY INSTRUCTIONS, CRIMINAL (CALJIC), no. 1.00 (1989). In some federal courts, jurors are instructed as follows: It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judge of facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law which I will give to you. That is how you will reach your verdict. In doing so you must follow that law whether you agree with it or not. MANUAL OF MODERN CRIMINAL JURY INSTRUCTIONS FOR THE NINTH CIRCUIT, nos. 1.01 and 3.01 (1992). Today, only two states, Indiana and Maryland, still instruct jurors that they have the right to determine the law as well as the facts. These two states' respective constitutions provide for this right See IND. CONST. art. 1, § 19 (In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts."); MD. CONST. DECLARATION OF RIGHTS art. 23 ("In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."). However, in both states, the judiciary has narrowed this right through case law. See, e.g., Beavers v. State, 141 N.E.2d 118,125 (Ind. 1957) ("Although the constitution gives the jury the right to determine the law in criminal cases, it does not follow . . . that it is an 'exclusive' right . . . . Neither does it follow . . . that the jury is the judge of the law at every step in the proceedings."); Montgomery v. State, 437 A.2d 654, 656 (Md. 1981) ("[T]he jury's role in judging the law under Article 23 is confined 'to resolv[ing] conflicting interpretations of the law . . . and to decid[ing] whether th[at] law should be applied in dubious factual situations,' and nothing more.").
249. Judges today help to perpetuate the myth of the jury acting solely as a factfinder. However, the distinction that judges make between their role and that of the jury is overstated. Commentators have long noted that the jury does more than find facts - that it performs both factfinding and lawmaking functions. See, e.g., ABRAMSON, supra note 33, at 64 ("The fact/law distinction, so starkly posed in judges' instructions to juries today, is, however, a fiction that seldom corrals the behavior of actual jurors."); Drew L. Kershen, Vicinage, 30 OKLA. L. REV. 3, 83 (1977); Scheflin & Van Dyke, supra note 87, at 68. Yeazell further explains: For the jury is not now and never has been a simple, functional piece of the judicial machine, to be judged on how well it finds facts. Instead it plays a complicated role, simultaneously functional and symbolic, checking judicial power and strengthening judicial institutions, reshaping law as it gives a remarkable efficacy to the legal regime. Yeazell, supra note 145, at 88. [B]oth those who attack and those who defend the modern jury ought to be clear about the political character of the institution under discussion. . . . [O]ne cannot simply discuss the jury as if it were an entirely utilitarian institution to be judged by how well it performed a factfinding function. . . . The debate is about the shape of government as much as it is about the reconstruction of facts. Id. at 117.
250. Judges today help to perpetuate the myth of the jury acting solely as a factfinder. However, the distinction that judges make between their role and that of the jury is overstated. Commentators have long noted that the jury does more than find facts - that it performs both factfinding and lawmaking functions. See, e.g., ABRAMSON, supra note 33, at 64 ("The fact/law distinction, so starkly posed in judges' instructions to juries today, is, however, a fiction that seldom corrals the behavior of actual jurors."); Drew L. Kershen, Vicinage, 30 OKLA. L. REV. 3, 83 (1977); Scheflin & Van Dyke, supra note 87, at 68. Yeazell further explains: For the jury is not now and never has been a simple, functional piece of the judicial machine, to be judged on how well it finds facts. Instead it plays a complicated role, simultaneously functional and symbolic, checking judicial power and strengthening judicial institutions, reshaping law as it gives a remarkable efficacy to the legal regime. Yeazell, supra note 145, at 88. [B]oth those who attack and those who defend the modern jury ought to be clear about the political character of the institution under discussion. . . . [O]ne cannot simply discuss the jury as if it were an entirely utilitarian institution to be judged by how well it performed a factfinding function. . . . The debate is about the shape of government as much as it is about the reconstruction of facts. Id. at 117.
251. Judges today help to perpetuate the myth of the jury acting solely as a factfinder. However, the distinction that judges make between their role and that of the jury is overstated. Commentators have long noted that the jury does more than find facts - that it performs both factfinding and lawmaking functions. See, e.g., ABRAMSON, supra note 33, at 64 ("The fact/law distinction, so starkly posed in judges' instructions to juries today, is, however, a fiction that seldom corrals the behavior of actual jurors."); Drew L. Kershen, Vicinage, 30 OKLA. L. REV. 3, 83 (1977); Scheflin & Van Dyke, supra note 87, at 68. Yeazell further explains: For the jury is not now and never has been a simple, functional piece of the judicial machine, to be judged on how well it finds facts. Instead it plays a complicated role, simultaneously functional and symbolic, checking judicial power and strengthening judicial institutions, reshaping law as it gives a remarkable efficacy to the legal regime. Yeazell, supra note 145, at 88. [B]oth those who attack and those who defend the modern jury ought to be clear about the political character of the institution under discussion. . . . [O]ne cannot simply discuss the jury as if it were an entirely utilitarian institution to be judged by how well it performed a factfinding function. . . . The debate is about the shape of government as much as it is about the reconstruction of facts. Id. at 117.
252. Judges today help to perpetuate the myth of the jury acting solely as a factfinder. However, the distinction that judges make between their role and that of the jury is overstated. Commentators have long noted that the jury does more than find facts - that it performs both factfinding and lawmaking functions. See, e.g., ABRAMSON, supra note 33, at 64 ("The fact/law distinction, so starkly posed in judges' instructions to juries today, is, however, a fiction that seldom corrals the behavior of actual jurors."); Drew L. Kershen, Vicinage, 30 OKLA. L. REV. 3, 83 (1977); Scheflin & Van Dyke, supra note 87, at 68. Yeazell further explains: For the jury is not now and never has been a simple, functional piece of the judicial machine, to be judged on how well it finds facts. Instead it plays a complicated role, simultaneously functional and symbolic, checking judicial power and strengthening judicial institutions, reshaping law as it gives a remarkable efficacy to the legal regime. Yeazell, supra note 145, at 88. [B]oth those who attack and those who defend the modern jury ought to be clear about the political character of the institution under discussion. . . . [O]ne cannot simply discuss the jury as if it were an entirely utilitarian institution to be judged by how well it performed a factfinding function. . . . The debate is about the shape of government as much as it is about the reconstruction of facts. Id. at 117.
253. See Howe, supra note 154, at 589 ("[I]n the federal courts until 1835, lower court judges and Justices of the Supreme Court, sitting on circuit, had time and again specifically instructed juries that they were 'the judges both of the law and the fact in a criminal case, and are not bound by the opinion of the court . . . .'") (quoting United States v. Wilson, Fed. Cas. No. 16,730 (C.C.E.D. Pa. 1830) (Baldwin, J.)); id. at 595 ("[T]he usual practice in Pennsylvania was for judges to inform the jurors 'what in the opinion of the court, was the law, but that the jury were the judges of the law and the fact.'") (quoting Edward Tilghman's testimony at the impeachment of Samuel Chase in REPORT OF THE TRIAL OF THE HON. SAMUEL CHASE 27 (Evans ed., 1805)); see also Adler, supra note 139, at A1 ("After the Revolution, many U.S. judges continued to show deference to juries by routinely telling them that they could determine for themselves what the law should provide.").
254. See Howe, supra note 154, at 589 ("[I]n the federal courts until 1835, lower court judges and Justices of the Supreme Court, sitting on circuit, had time and again specifically instructed juries that they were 'the judges both of the law and the fact in a criminal case, and are not bound by the opinion of the court . . . .'") (quoting United States v. Wilson, Fed. Cas. No. 16,730 (C.C.E.D. Pa. 1830) (Baldwin, J.)); id. at 595 ("[T]he usual practice in Pennsylvania was for judges to inform the jurors 'what in the opinion of the court, was the law, but that the jury were the judges of the law and the fact.'") (quoting Edward Tilghman's testimony at the impeachment of Samuel Chase in REPORT OF THE TRIAL OF THE HON. SAMUEL CHASE 27 (Evans ed., 1805)); see also Adler, supra note 139, at A1 ("After the Revolution, many U.S. judges continued to show deference to juries by routinely telling them that they could determine for themselves what the law should provide.").
255. See Howe, supra note 154, at 589 ("[I]n the federal courts until 1835, lower court judges and Justices of the Supreme Court, sitting on circuit, had time and again specifically instructed juries that they were 'the judges both of the law and the fact in a criminal case, and are not bound by the opinion of the court . . . .'") (quoting United States v. Wilson, Fed. Cas. No. 16,730 (C.C.E.D. Pa. 1830) (Baldwin, J.)); id. at 595 ("[T]he usual practice in Pennsylvania was for judges to inform the jurors 'what in the opinion of the court, was the law, but that the jury were the judges of the law and the fact.'") (quoting Edward Tilghman's testimony at the impeachment of Samuel Chase in REPORT OF THE TRIAL OF THE HON. SAMUEL CHASE 27 (Evans ed., 1805)); see also Adler, supra note 139, at A1 ("After the Revolution, many U.S. judges continued to show deference to juries by routinely telling them that they could determine for themselves what the law should provide.").
256. John Adams described the juror's right to decide a case according to his conscience: "It is not only his right but his duty, in that case to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." Howe, supra note 154, at 605 (quoting 2 LIFE AND WORKS OF JOHN ADAMS 253-55 (C.F. Adams ed., 1856)).
257. John Adams described the juror's right to decide a case according to his conscience: "It is not only his right but his duty, in that case to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." Howe, supra note 154, at 605 (quoting 2 LIFE AND WORKS OF JOHN ADAMS 253-55 (C.F. Adams ed., 1856)).
258. See WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830, at 26-27 (1975) (providing explanations for why the jury did not follow the law as given by the judge).
259. See ABRAMSON, supra note 33, at 75. At the very least, according to Scheflin, "[t]here is agreement among many commentators that the right of the jury to decide questions of law and fact prevailed in this country until the middle 1800's." Scheflin, supra note 36, at 177. Howe described how a number of States, including Pennsylvania, New York, Vermont, Virginia, Louisiana, Georgia, Tennessee, Connecticut, Massachusetts, and Illinois maintained that juries could decide questions of both fact and law, at least until the 1850s.
260. See ABRAMSON, supra note 33, at 75. At the very least, according to Scheflin, "[t]here is agreement among many commentators that the right of the jury to decide questions of law and fact prevailed in this country until the middle 1800's." Scheflin, supra note 36, at 177. Howe described how a number of States, including Pennsylvania, New York, Vermont, Virginia, Louisiana, Georgia, Tennessee, Connecticut, Massachusetts, and Illinois maintained that juries could decide questions of both fact and law, at least until the 1850s.
261. See Howe, supra note 154, at 590 n.2, 592, 594-96, 596 n.57, 597 n.58, 603, 605-09, 611. According to Howe, judges acted "arrogant[ly]," id. at 616, in gradually wresting this power from juries, even when legislatures in some states had passed statutes that explicitly provided that juries were to be the finders of fact and law. See id. at 597 n.58 ("In early years the juries, by statute [in Louisiana], were made judges of law in both civil and criminal cases. . . . Modification began, however, in State v. Tally, 23 La. Ann. 677 (1871)."); id. at 602-03 (describing Connecticut's statutes concerning judge and jury roles and court decisions that held that jurors still could not disregard the law); id. at 609-10 ("In 1855 the [Massachusetts] legislature passed a statute which . . . provided that 'in all trials for criminal offenses, it shall be the duty of the jury . . . to decide at [its] discretion, by a general verdict, both the fact and the law involved in the issue . . . .'" but in that same year, the Massachusetts Supreme Court held that such a statute "'would be repugnant to the Constitution of the Commonwealth.'"); id. at 611 (describing a transformation in Illinois, where there was a statute providing that '"juries in all [criminal] cases shall be judges of the law and fact,'" but courts eventually instructed juries that although they were to judge the law, they could only do so if they knew the law better than the court). In Georgia: [The] constitution of 1777 in article 41 provided that 'the jury shall be judges of law, as well as of fact' and forbade the finding of special verdicts. . . . Until 1870 the jury's right to make independent decisions on questions of criminal law was acknowledged. . . . In 1870, however, Brown v. State, 40 Ga. 689, held that the jury must accept the law from the court. Id. at 597 n.58.
262. See ABRAMSON, supra note 33, at 76 (providing that "the jury shall be judges of law, as well as fact.").
263. See id.
264. See id. (citing State v. Croteau, 23 Vt 14 (1849) (stressing that the "opinion of the legal profession in this state, from the earliest organization of the government . . . has been almost if not quite uniform in favor of the . . . right of the jury" to decide questions of law), overruled by State v. Burpee, 65 Vt. 125(1892)).
265. See id. ("[T]he power of the jury to judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights." (quoting Howe, supra note 154, at 595)).
266. See Sparf and Hansen v. United States, 156 U.S. 1 (1895).
267. See ABRAMSON, supra note 33, at 88-90.
268. See Yeazell, supra note 145, at 87.
269. See id. at 103 ("The conflict that emerged at the birth of the jury has proved durable - that between juries as mirrors of popular (or at least lay) values and judges as representatives of a professional elite."); see also NELSON, supra note 159, at 33 ("The key to becoming a [colonial] judge was not that one was a lawyer, for nearly all Massachusetts judges were not, but that one was a man of substance who commanded the respect of his community."); Howe, supra note 154, at 591 (noting that after Independence, colonial judges exercised limited powers, in large part because "judges were laymen"); Simson, supra note 122, at 504 ("The subsequent death of the practice [of the "colonial jury's right to redetermine issues of law decided by the judge"] in federal courts . . . can be understood in light of the widening disparity between judge and jury in professional qualifications and the gradual disappearance of the people's intense distrust of the judiciary . . . .") (footnote omitted).
270. See id. at 103 ("The conflict that emerged at the birth of the jury has proved durable - that between juries as mirrors of popular (or at least lay) values and judges as representatives of a professional elite."); see also NELSON, supra note 159, at 33 ("The key to becoming a [colonial] judge was not that one was a lawyer, for nearly all Massachusetts judges were not, but that one was a man of substance who commanded the respect of his community."); Howe, supra note 154, at 591 (noting that after Independence, colonial judges exercised limited powers, in large part because "judges were laymen"); Simson, supra note 122, at 504 ("The subsequent death of the practice [of the "colonial jury's right to redetermine issues of law decided by the judge"] in federal courts . . . can be understood in light of the widening disparity between judge and jury in professional qualifications and the gradual disappearance of the people's intense distrust of the judiciary . . . .") (footnote omitted).
271. See id. at 103 ("The conflict that emerged at the birth of the jury has proved durable - that between juries as mirrors of popular (or at least lay) values and judges as representatives of a professional elite."); see also NELSON, supra note 159, at 33 ("The key to becoming a [colonial] judge was not that one was a lawyer, for nearly all Massachusetts judges were not, but that one was a man of substance who commanded the respect of his community."); Howe, supra note 154, at 591 (noting that after Independence, colonial judges exercised limited powers, in large part because "judges were laymen"); Simson, supra note 122, at 504 ("The subsequent death of the practice [of the "colonial jury's right to redetermine issues of law decided by the judge"] in federal courts . . . can be understood in light of the widening disparity between judge and jury in professional qualifications and the gradual disappearance of the people's intense distrust of the judiciary . . . .") (footnote omitted).
272. See Yeazell, supra note 145, at 93-96. Scheflin explained the transformation as the result of "a power struggle in which professional judges sought tighter controls over the legal apparatus of the trial." Scheflin, supra note 36, at 207 & n.134.
273. See, e.g., United States v. Spock, 416 F.2d 165 (1st Cir. 1969) (reversing a conviction of conspiracy to counsel evasion of the draft because the trial court had put to the jury ten special questions in addition to a general verdict).
274. United States v. Ogull, 149 F. Supp. 272, 276 (S.D.N.Y. 1957) (quoted in Spock, 416 F.2d at 181).
275. See FED. R. Civ. P. 49(a) (Special Verdicts).
276. See FED. R. Civ. P. 49(b) (General Verdict Accompanied by Answer to Interrogatories).
277. See, e.g., James A. Henderson Jr. et al., Optimal Issue Separation in Modern Products Liability Litigation, 73 TEX. L. REV. 1653, 1674 (1995) ("The special verdict arguably separates the issues to a greater degree than is justified. Consequently, many commentators, including judges, have criticized the practice as an interference with the traditional role of the jury."). Justices Hugo L. Black and William O. Douglas viewed Rule 49 as "another means utilized by courts to weaken the constitutional power of juries" and called for its repeal. 31 F.R.D. 617, 619 (1963) (statement of Mr. Justice Black and Mr. Justice Douglas on the Rules of Civil Procedure and the Proposed Amendments). Other judges have also been wary. See, e.g., Morris v. Pennsylvania R.R., 187 F.2d 837, 840-41 (2d Cir. 1951) (noting that special verdicts and answers to interrogatories can lead to inconsistencies, which courts should attempt to reconcile with "discrimination and foresight"); Melancon v. McKeithen, 345 F. Supp. 1025, 1046 (E.D. La. 1972) ("[S]pecial verdicts . . . and general verdicts accompanied by answers to interrogatories . . . involve inroads by the judge into the jury function.").
278. See, e.g., STEPHEN J. CARROLL, THE INSTITUTE FOR CIVIL JUSTICE (RAND), JURY AWARDS AND PREJUDGMENT INTEREST IN TORT CASES 14, 16 (1983) (describing Cook County juries' tendency to include prejudgment interest implicitly in their awards of general damages in tort cases, thus appearing to compensate plaintiffs who had to wait a long time for their award).
279. See id. at 16 (noting that Cook County juries included prejudgment interest in general damages in torts cases and questioning whether, as a matter of policy, it is best for juries or legislatures to determine these rates).
280. The exception would be those state court judges who are elected rather than appointed. See, e.g., FLA. ADMIN. CODE ANN. r.1S-2.0001 (1998) (providing for the election of judges).
281. When juries were first used in England, the opposite was true. Jurors were chosen because they had knowledge of the parties or the dispute. See THOMAS ANDREW GREEN, VERDICT ACCORDING TO CONSCIENCE: PERSPECTIVES ON THE ENGLISH CRIMINAL TRIAL JURY 1200-1800, at 52 (1985) ("The trial jurors, drawn from the hundred where the homicide was committed, but not necessarily from the immediate vicinage, probably reflected already settled attitudes of the countryside toward individual defendants."); id. at 98 ("Moreover, juries were forced to make decisions about individuals partially on the basis of the reputation of those individuals in the community."); Famham, supra note 19, at 5 ("Contrary to the modern concept of a jury ignorant except as enlightened by the facts presented at trial, medieval jurors took an oath to tell what they knew to be true."); Yeazell, supra note 145, at 91 ("The jurors were to be selected for their knowledge of the underlying events; if they were ignorant, the solution was not to present evidence, but to select more jurors until one found those who knew.").
282. When juries were first used in England, the opposite was true. Jurors were chosen because they had knowledge of the parties or the dispute. See THOMAS ANDREW GREEN, VERDICT ACCORDING TO CONSCIENCE: PERSPECTIVES ON THE ENGLISH CRIMINAL TRIAL JURY 1200-1800, at 52 (1985) ("The trial jurors, drawn from the hundred where the homicide was committed, but not necessarily from the immediate vicinage, probably reflected already settled attitudes of the countryside toward individual defendants."); id. at 98 ("Moreover, juries were forced to make decisions about individuals partially on the basis of the reputation of those individuals in the community."); Famham, supra note 19, at 5 ("Contrary to the modern concept of a jury ignorant except as enlightened by the facts presented at trial, medieval jurors took an oath to tell what they knew to be true."); Yeazell, supra note 145, at 91 ("The jurors were to be selected for their knowledge of the underlying events; if they were ignorant, the solution was not to present evidence, but to select more jurors until one found those who knew.").
283. When juries were first used in England, the opposite was true. Jurors were chosen because they had knowledge of the parties or the dispute. See THOMAS ANDREW GREEN, VERDICT ACCORDING TO CONSCIENCE: PERSPECTIVES ON THE ENGLISH CRIMINAL TRIAL JURY 1200-1800, at 52 (1985) ("The trial jurors, drawn from the hundred where the homicide was committed, but not necessarily from the immediate vicinage, probably reflected already settled attitudes of the countryside toward individual defendants."); id. at 98 ("Moreover, juries were forced to make decisions about individuals partially on the basis of the reputation of those individuals in the community."); Famham, supra note 19, at 5 ("Contrary to the modern concept of a jury ignorant except as enlightened by the facts presented at trial, medieval jurors took an oath to tell what they knew to be true."); Yeazell, supra note 145, at 91 ("The jurors were to be selected for their knowledge of the underlying events; if they were ignorant, the solution was not to present evidence, but to select more jurors until one found those who knew.").
284. See KASSIN & WRIGHTSMAN, supra note 20, at 50 (describing the legitimate purposes of voir dire, including the search for impartial jurors); Barbara A. Babcock, Voir Dire: Preserving 'Its Wonderful Power, ' 27 STAN. L. REV. 545 (1975) (defending voir dire and urging that it become more extensive). But see Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 TEX. L. REV. 1041, 1086-90 (1995) (describing the aspirations of voir dire, but also the ways in which the practice falls short of the ideal).
285. See KASSIN & WRIGHTSMAN, supra note 20, at 50 (describing the legitimate purposes of voir dire, including the search for impartial jurors); Barbara A. Babcock, Voir Dire: Preserving 'Its Wonderful Power, ' 27 STAN. L. REV. 545 (1975) (defending voir dire and urging that it become more extensive). But see Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 TEX. L. REV. 1041, 1086-90 (1995) (describing the aspirations of voir dire, but also the ways in which the practice falls short of the ideal).
286. See KASSIN & WRIGHTSMAN, supra note 20, at 50 (describing the legitimate purposes of voir dire, including the search for impartial jurors); Barbara A. Babcock, Voir Dire: Preserving 'Its Wonderful Power, ' 27 STAN. L. REV. 545 (1975) (defending voir dire and urging that it become more extensive). But see Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 TEX. L. REV. 1041, 1086-90 (1995) (describing the aspirations of voir dire, but also the ways in which the practice falls short of the ideal).
287. See 28 U.S.C. §§ 144, 455 (1988). Attorneys can move to recuse a judge who fails to do so on his or her own; however, these motions are difficult to win. See, e.g., Pennsylvania v. Local Union 542 Int'l Union of Operating Eng'rs, 388 F. Supp. 155, 181-82 (E.D. Pa. 1974) (denying a motion to recuse filed pursuant to 28 U.S.C. § 144 because Judge Higginbotham did not believe that a black judge should have to recuse himself simply because he is black and the case involved race).
288. This is a constitutional prerequisite in the case of a jury. The Sixth Amendment requires that the defendant in a criminal case receive a trial by an "impartial jury." U.S. CONST. amend. VI. Although the Seventh Amendment does not explicitly provide for an impartial jury, the requirement is understood to apply to the civil jury trial as well. See, e.g., Thiel v. Southern Pac. Co., 328 U.S. 217, 220 (1946) ("The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.") (citations omitted). For federal judges, Article III helps to structure the role so that judges remain independent and are less likely to succumb to outside influences. See U.S. CONST. art. III, § 1 ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office."). In addition, impartiality is both a statutory and ethical requirement. See 28 U.S.C. § 455(a) (1998) ("Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."); MODEL CODE OF JUDICIAL CONDUCT Canon 2(A) (1990) ("A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.").
289. See REID HASTIE ET AL., INSIDE THE JURY 236 (1983) ("The group memory advantage over the typical or even the exceptional individual is one of the major determinants of the superiority of the jury as a legal decision mechanism."); id. at 81 (describing the impressive collective memory of a jury and noting that jurors remember 90% of the evidence and 80% of the judge's instructions); JAMES P. LEVINE, JURIES AND POLITICS 182 (1992) ("Remembering what was said is no small part of competent fact finding, and the collective memory of twelve jurors (over even six) is likely to be better than that of one individual."); Harry Kalven, The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1067 (1964) ("Different jurors remember, and make available to all, different items of the trial so that the jury as a group remembers far more than most of its members could as individuals."); Goleman, supra note 146, at C1 ("In a study of more than 700 jurors . . . the average rate at which individual jurors remembered evidence from a trial was 60 percent; for judge's instructions the average was 44 percent. But for the jury as a whole, the memory rates were far better: 93 percent for facts and 82 percent for instructions.").
290. See REID HASTIE ET AL., INSIDE THE JURY 236 (1983) ("The group memory advantage over the typical or even the exceptional individual is one of the major determinants of the superiority of the jury as a legal decision mechanism."); id. at 81 (describing the impressive collective memory of a jury and noting that jurors remember 90% of the evidence and 80% of the judge's instructions); JAMES P. LEVINE, JURIES AND POLITICS 182 (1992) ("Remembering what was said is no small part of competent fact finding, and the collective memory of twelve jurors (over even six) is likely to be better than that of one individual."); Harry Kalven, The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1067 (1964) ("Different jurors remember, and make available to all, different items of the trial so that the jury as a group remembers far more than most of its members could as individuals."); Goleman, supra note 146, at C1 ("In a study of more than 700 jurors . . . the average rate at which individual jurors remembered evidence from a trial was 60 percent; for judge's instructions the average was 44 percent. But for the jury as a whole, the memory rates were far better: 93 percent for facts and 82 percent for instructions.").
291. See REID HASTIE ET AL., INSIDE THE JURY 236 (1983) ("The group memory advantage over the typical or even the exceptional individual is one of the major determinants of the superiority of the jury as a legal decision mechanism."); id. at 81 (describing the impressive collective memory of a jury and noting that jurors remember 90% of the evidence and 80% of the judge's instructions); JAMES P. LEVINE, JURIES AND POLITICS 182 (1992) ("Remembering what was said is no small part of competent fact finding, and the collective memory of twelve jurors (over even six) is likely to be better than that of one individual."); Harry Kalven, The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1067 (1964) ("Different jurors remember, and make available to all, different items of the trial so that the jury as a group remembers far more than most of its members could as individuals."); Goleman, supra note 146, at C1 ("In a study of more than 700 jurors . . . the average rate at which individual jurors remembered evidence from a trial was 60 percent; for judge's instructions the average was 44 percent. But for the jury as a whole, the memory rates were far better: 93 percent for facts and 82 percent for instructions.").
292. See REID HASTIE ET AL., INSIDE THE JURY 236 (1983) ("The group memory advantage over the typical or even the exceptional individual is one of the major determinants of the superiority of the jury as a legal decision mechanism."); id. at 81 (describing the impressive collective memory of a jury and noting that jurors remember 90% of the evidence and 80% of the judge's instructions); JAMES P. LEVINE, JURIES AND POLITICS 182 (1992) ("Remembering what was said is no small part of competent fact finding, and the collective memory of twelve jurors (over even six) is likely to be better than that of one individual."); Harry Kalven, The Dignity of the Civil Jury, 50 VA. L. REV. 1055, 1067 (1964) ("Different jurors remember, and make available to all, different items of the trial so that the jury as a group remembers far more than most of its members could as individuals."); Goleman, supra note 146, at C1 ("In a study of more than 700 jurors . . . the average rate at which individual jurors remembered evidence from a trial was 60 percent; for judge's instructions the average was 44 percent. But for the jury as a whole, the memory rates were far better: 93 percent for facts and 82 percent for instructions.").
293. See VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 50 (1986) ("[A] jury composed of individuals with a wide range of experiences, backgrounds, and knowledge is more likely to perceive the facts from different perspectives and thus engage in a vigorous and thorough debate.").
294. See Ballew v. Georgia, 435 U.S. 223, 233 (1978) ("When individual and group decisionmaking were compared, it was seen that groups performed better because prejudices of individuals were frequently counterbalanced . . . ."); HANS & VIDMAR, supra note 183, at 50 ("The jury's heterogeneous makeup may also lessen the power of prejudice.").
295. See Ballew v. Georgia, 435 U.S. 223, 233 (1978) ("When individual and group decisionmaking were compared, it was seen that groups performed better because prejudices of individuals were frequently counterbalanced . . . ."); HANS & VIDMAR, supra note 183, at 50 ("The jury's heterogeneous makeup may also lessen the power of prejudice.").
296. Although appellate judges do work in panels of three and have the benefit of each other's ideas, they typically do not engage in deliberations until after oral argument, by which time they have already read the briefs and done independent research on the issues, and have usually formed tentative views of the case.
297. See Inside the Jury Room transcript, supra note 16, at 31-58.
298. When Abe Portas was a justice, he described this tendency of judges as follows: "[J]udges do become case-hardened. Judges do sometimes tend, after many years, to take a somewhat jaundiced view of defendants. Many trial judges tend to become a bit prosecution-minded. That's the basic justification for a jury." Scheflin, supra note 36, at 213.
299. See, e.g., Taylor v. Louisiana, 419 U.S. 522 (1975) (holding that women cannot be automatically exempted from the venire because a defendant has a Sixth Amendment right to a venire drawn from a fair cross section of the community). Although the Sixth Amendment does not apply to a civil jury, in practice, venires for civil and criminal juries are drawn in the same way. Even Congress has adopted a unified approach to the jury; the procedures it sets forth for jury service are applicable to both civil and criminal juries. See 28 U.S.C. §§ 1861-1878 (1988).
300. See Holland v. Illinois, 493 U.S. 474 (1990) (holding that the Sixth Amendment's fair cross section requirement of the venire need not be applied to the petit jury); Batson v. Kentucky, 476 U.S. 79, 85 n.6 (1986) ("[I]t would be impossible to apply a concept of proportional representation to the petit jury in view of the heterogeneous nature of our society.").
301. See JON M. VAN DYKE, JURY SELECTION PROCEDURES 18 (1977) ("[A] juror selected under this [quota] system might feel that he or she is filling some predetermined 'slot' and might attempt to give the view generally associated with those demographic characteristics rather than the juror's personal feelings about the case."); Marder, supra note 179, at 1104-07 (describing the harms of a quota system, including how to agree on which groups are distinctive; how to categorize people who belong in several groups; and whether the state should be involved in such categorization). But see Nancy J. King, Racial Jurymandering: Cancer or Cure? A Contemporary Review of Affirmative Action in Jury Selection, 68 N.Y.U. L. REV. 707, 768 (1993) (suggesting that "courts analyze which race-conscious reforms are reasonably necessary to maintain public confidence in the impartiality of jury proceedings by considering [six circumstances]").
302. See JON M. VAN DYKE, JURY SELECTION PROCEDURES 18 (1977) ("[A] juror selected under this [quota] system might feel that he or she is filling some predetermined 'slot' and might attempt to give the view generally associated with those demographic characteristics rather than the juror's personal feelings about the case."); Marder, supra note 179, at 1104-07 (describing the harms of a quota system, including how to agree on which groups are distinctive; how to categorize people who belong in several groups; and whether the state should be involved in such categorization). But see Nancy J. King, Racial Jurymandering: Cancer or Cure? A Contemporary Review of Affirmative Action in Jury Selection, 68 N.Y.U. L. REV. 707, 768 (1993) (suggesting that "courts analyze which race-conscious reforms are reasonably necessary to maintain public confidence in the impartiality of jury proceedings by considering [six circumstances]").
303. See JON M. VAN DYKE, JURY SELECTION PROCEDURES 18 (1977) ("[A] juror selected under this [quota] system might feel that he or she is filling some predetermined 'slot' and might attempt to give the view generally associated with those demographic characteristics rather than the juror's personal feelings about the case."); Marder, supra note 179, at 1104-07 (describing the harms of a quota system, including how to agree on which groups are distinctive; how to categorize people who belong in several groups; and whether the state should be involved in such categorization). But see Nancy J. King, Racial Jurymandering: Cancer or Cure? A Contemporary Review of Affirmative Action in Jury Selection, 68 N.Y.U. L. REV. 707, 768 (1993) (suggesting that "courts analyze which race-conscious reforms are reasonably necessary to maintain public confidence in the impartiality of jury proceedings by considering [six circumstances]").
304. See, e.g., Dennis Bilecki, Program Improves Minority Group Representation on Federal Juries, 77 JUDICATURE 221 (1994) (describing a pilot program in Northern California that used lists of licensed drivers and California identification card holders in addition to voter registration lists to improve minority representation on the venire); David Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists, 65 CAL. L. REV. 776 (1977) (urging the use of multiple source lists for the venire, rather than simply relying on voter registration lists); Rocco Cammarere, SS Jury Pay 'an Outrage'; Recommendations Made, N.J. LAW., Dec. 13, 1993, at 1 (describing recommendations in New Jersey to use multiple lists for venire, including lists of state income taxpayers and people who file for a homestead rebate claim). Some states have gone further, and have made sure that jurors are drawn for the venire in proportion to their group's numbers in the community. For example, Georgia requires that in death penalty cases, the composition of the venire must resemble the racial and gender composition of the counties from which the jurors are drawn. See David Margolick, Question for the '90s: Just What Is a Jury of One's Peers?, CHI. DAILY L. BULL., Feb. 18, 1992, at 2. A similar effort was made in Michigan. See Nancy J. King & G. Thomas Munsterman, Stratefled Juror Selection: Cross-Section by Design, 79 JUDICATURE 273, 275 (1996) ("[In the Eastern District of Michigan, t]he court . . . randomly strikes from the list of persons qualified the specific number of 'white and other" potential jurors needed to obtain a qualified list with racial demographics identical to that of the population."). But see United States v. Ovalle, 136 F.3d 1022 (6th Cir. 1988) (holding the practice violative of 28 U.S.C. § 1862 and the equal protection component of the Fifth Amendment).
305. See, e.g., Dennis Bilecki, Program Improves Minority Group Representation on Federal Juries, 77 JUDICATURE 221 (1994) (describing a pilot program in Northern California that used lists of licensed drivers and California identification card holders in addition to voter registration lists to improve minority representation on the venire); David Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists, 65 CAL. L. REV. 776 (1977) (urging the use of multiple source lists for the venire, rather than simply relying on voter registration lists); Rocco Cammarere, SS Jury Pay 'an Outrage'; Recommendations Made, N.J. LAW., Dec. 13, 1993, at 1 (describing recommendations in New Jersey to use multiple lists for venire, including lists of state income taxpayers and people who file for a homestead rebate claim). Some states have gone further, and have made sure that jurors are drawn for the venire in proportion to their group's numbers in the community. For example, Georgia requires that in death penalty cases, the composition of the venire must resemble the racial and gender composition of the counties from which the jurors are drawn. See David Margolick, Question for the '90s: Just What Is a Jury of One's Peers?, CHI. DAILY L. BULL., Feb. 18, 1992, at 2. A similar effort was made in Michigan. See Nancy J. King & G. Thomas Munsterman, Stratefled Juror Selection: Cross-Section by Design, 79 JUDICATURE 273, 275 (1996) ("[In the Eastern District of Michigan, t]he court . . . randomly strikes from the list of persons qualified the specific number of 'white and other" potential jurors needed to obtain a qualified list with racial demographics identical to that of the population."). But see United States v. Ovalle, 136 F.3d 1022 (6th Cir. 1988) (holding the practice violative of 28 U.S.C. § 1862 and the equal protection component of the Fifth Amendment).
306. See, e.g., Dennis Bilecki, Program Improves Minority Group Representation on Federal Juries, 77 JUDICATURE 221 (1994) (describing a pilot program in Northern California that used lists of licensed drivers and California identification card holders in addition to voter registration lists to improve minority representation on the venire); David Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists, 65 CAL. L. REV. 776 (1977) (urging the use of multiple source lists for the venire, rather than simply relying on voter registration lists); Rocco Cammarere, SS Jury Pay 'an Outrage'; Recommendations Made, N.J. LAW., Dec. 13, 1993, at 1 (describing recommendations in New Jersey to use multiple lists for venire, including lists of state income taxpayers and people who file for a homestead rebate claim). Some states have gone further, and have made sure that jurors are drawn for the venire in proportion to their group's numbers in the community. For example, Georgia requires that in death penalty cases, the composition of the venire must resemble the racial and gender composition of the counties from which the jurors are drawn. See David Margolick, Question for the '90s: Just What Is a Jury of One's Peers?, CHI. DAILY L. BULL., Feb. 18, 1992, at 2. A similar effort was made in Michigan. See Nancy J. King & G. Thomas Munsterman, Stratefled Juror Selection: Cross-Section by Design, 79 JUDICATURE 273, 275 (1996) ("[In the Eastern District of Michigan, t]he court . . . randomly strikes from the list of persons qualified the specific number of 'white and other" potential jurors needed to obtain a qualified list with racial demographics identical to that of the population."). But see United States v. Ovalle, 136 F.3d 1022 (6th Cir. 1988) (holding the practice violative of 28 U.S.C. § 1862 and the equal protection component of the Fifth Amendment).
307. See, e.g., Dennis Bilecki, Program Improves Minority Group Representation on Federal Juries, 77 JUDICATURE 221 (1994) (describing a pilot program in Northern California that used lists of licensed drivers and California identification card holders in addition to voter registration lists to improve minority representation on the venire); David Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists, 65 CAL. L. REV. 776 (1977) (urging the use of multiple source lists for the venire, rather than simply relying on voter registration lists); Rocco Cammarere, SS Jury Pay 'an Outrage'; Recommendations Made, N.J. LAW., Dec. 13, 1993, at 1 (describing recommendations in New Jersey to use multiple lists for venire, including lists of state income taxpayers and people who file for a homestead rebate claim). Some states have gone further, and have made sure that jurors are drawn for the venire in proportion to their group's numbers in the community. For example, Georgia requires that in death penalty cases, the composition of the venire must resemble the racial and gender composition of the counties from which the jurors are drawn. See David Margolick, Question for the '90s: Just What Is a Jury of One's Peers?, CHI. DAILY L. BULL., Feb. 18, 1992, at 2. A similar effort was made in Michigan. See Nancy J. King & G. Thomas Munsterman, Stratefled Juror Selection: Cross-Section by Design, 79 JUDICATURE 273, 275 (1996) ("[In the Eastern District of Michigan, t]he court . . . randomly strikes from the list of persons qualified the specific number of 'white and other" potential jurors needed to obtain a qualified list with racial demographics identical to that of the population."). But see United States v. Ovalle, 136 F.3d 1022 (6th Cir. 1988) (holding the practice violative of 28 U.S.C. § 1862 and the equal protection component of the Fifth Amendment).
308. See, e.g., Dennis Bilecki, Program Improves Minority Group Representation on Federal Juries, 77 JUDICATURE 221 (1994) (describing a pilot program in Northern California that used lists of licensed drivers and California identification card holders in addition to voter registration lists to improve minority representation on the venire); David Kairys et al., Jury Representativeness: A Mandate for Multiple Source Lists, 65 CAL. L. REV. 776 (1977) (urging the use of multiple source lists for the venire, rather than simply relying on voter registration lists); Rocco Cammarere, SS Jury Pay 'an Outrage'; Recommendations Made, N.J. LAW., Dec. 13, 1993, at 1 (describing recommendations in New Jersey to use multiple lists for venire, including lists of state income taxpayers and people who file for a homestead rebate claim). Some states have gone further, and have made sure that jurors are drawn for the venire in proportion to their group's numbers in the community. For example, Georgia requires that in death penalty cases, the composition of the venire must resemble the racial and gender composition of the counties from which the jurors are drawn. See David Margolick, Question for the '90s: Just What Is a Jury of One's Peers?, CHI. DAILY L. BULL., Feb. 18, 1992, at 2. A similar effort was made in Michigan. See Nancy J. King & G. Thomas Munsterman, Stratefled Juror Selection: Cross-Section by Design, 79 JUDICATURE 273, 275 (1996) ("[In the Eastern District of Michigan, t]he court . . . randomly strikes from the list of persons qualified the specific number of 'white and other" potential jurors needed to obtain a qualified list with racial demographics identical to that of the population."). But see United States v. Ovalle, 136 F.3d 1022 (6th Cir. 1988) (holding the practice violative of 28 U.S.C. § 1862 and the equal protection component of the Fifth Amendment).
309. The vast number of federal judges are men. See, e.g., NINTH CIRCUIT GENDER BIAS TASK FORCE, THE EFFECTS OF GENDER IN THE FEDERAL COURTS 10 (1993), reprinted in 67 S. CAL. L. REV. 745, 772 (1994) (concluding that "the world of the federal courts is still predominantly male"). Only seven percent of federal appellate judges and six percent of federal district court judges are women. See id. at 12. Whereas federal judges tend to fit a certain profile (white men over the age of 50), see id. at 13, the jury potentially reflects a much more diverse group. This profile of the federal judge mirrors that of many state judges as well. See, e.g., John K.C. Mah, Diversity of Bench Takes the Stand in Simpson Case, L.A. TIMES, Aug. 8, 1994, at B5 (discussing statistics showing that, in California, "most judges are white"). According to the Commission on the Future of the California Courts, 5% of the state's 1,554 judges are African American, 5% are Hispanic, 3% are Asian or Pacific Islanders, and 0.1% (a single judge) is Native American. See id.
310. The vast number of federal judges are men. See, e.g., NINTH CIRCUIT GENDER BIAS TASK FORCE, THE EFFECTS OF GENDER IN THE FEDERAL COURTS 10 (1993), reprinted in 67 S. CAL. L. REV. 745, 772 (1994) (concluding that "the world of the federal courts is still predominantly male"). Only seven percent of federal appellate judges and six percent of federal district court judges are
311. The vast number of federal judges are men. See, e.g., NINTH CIRCUIT GENDER BIAS TASK FORCE, THE EFFECTS OF GENDER IN THE FEDERAL COURTS 10 (1993), reprinted in 67 S. CAL. L. REV. 745, 772 (1994) (concluding that "the world of the federal courts is still predominantly male"). Only seven percent of federal appellate judges and six percent of federal district court judges are women. See id. at 12. Whereas federal judges tend to fit a certain profile (white men over the age of 50), see id. at 13, the jury potentially reflects a much more diverse group. This profile of the federal judge mirrors that of many state judges as well. See, e.g., John K.C. Mah, Diversity of Bench Takes the Stand in Simpson Case, L.A. TIMES, Aug. 8, 1994, at B5 (discussing statistics showing that, in California, "most judges are white"). According to the Commission on the Future of the California Courts, 5% of the state's 1,554 judges are African American, 5% are Hispanic, 3% are Asian or Pacific Islanders, and 0.1% (a single judge) is Native American. See id.
312. There are typically 12 jurors on a criminal jury in federal court. See FED. R. CRIM. P. 23 ("Ju-ries shall be of 12 but . . . the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences."). The number of jurors on a criminal jury in state court varies, but cannot go below six jurors. See Ballew v. Georgia, 435 U.S. 223, 232-38 (1978) (holding that a jury in a state criminal trial cannot go below six jurors). A civil jury in federal court may have from 6 to 12 jurors. See FED. R. CIV. P. 48 ("The court shall seat a jury of not fewer than six members and not more than twelve members . . . .").
313. There are typically 12 jurors on a criminal jury in federal court. See FED. R. CRIM. P. 23 ("Ju- ries shall be of 12 but . . . the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than 12 should the court find it necessary to excuse one or more jurors for any just cause after trial commences."). The number of jurors on a criminal jury in state court varies, but cannot go below six jurors. See Ballew v. Georgia, 435 U.S. 223, 232-38 (1978) (holding that a jury in a state criminal trial cannot go below six jurors). A civil jury in federal court may have from 6 to 12 jurors. See FED. R. CIV. P. 48 ("The court shall seat a jury of not fewer than six members and not more than twelve members . . . .").
314. See FED. R. EVID. 606(b) (limiting judicial inquiries into jury deliberations to "the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror").
315. See supra note 146 (describing story model of juror decisionmaking).
316. See id.
317. See id.
318. See supra notes 131-35, 155 and accompanying text (describing judge's instructions).
319. See, e.g., Farnham, supra note 19, at 13 (describing three jurors hi the trial of Dr. Spock who convicted him and three of his four codefendants on charges of counseling draft evasion during the Vietnam War because of the judge's instructions; they felt they had no choice but to accept the law as given to them by the judge). Famham regretted that these jurors, "believing themselves able to nullify, but not entitled to, . . . followed legal instructions that led to a result that they did not agree with." Id.
320. Compare Enter the Jury Room transcript, supra note 16, at 37 (Juror #1 explaining that the jurors were not permitted to consider what sentence Modesta Solano might receive if convicted) with id. at 43 (Juror Joe who believed the jury had "to find two things. Guilt or innocence is one, and justice is two.").
321. Knight, supra note 114, at N1.
322. See, eg., 'Nullification ' Becomes Factor in Simpson Case, ARIZ. REPUBLIC, Oct. 2, 1995, at A2 ("In jury nullification verdicts, the panel rarely takes time to examine the evidence."); Whitaker, supra note 3, at 28 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police."). Interestingly, there were few claims of nullification or bad faith in the time period after the jury had come to a verdict, but before it was announced. At that point, many in the mainstream press believed there would be a verdict of guilty, and gave the best possible gloss to the speed with which the jury had reached a verdict. See, e.g., Henry Weinstein & Tim Rutten, Jury 's Quick Decision Stuns Trial Analysts, FRESNO BEE, Oct. 3, 1995, at A12 ("'Based on that readback [of Allen Park's testimony], the defense should be very worried.'") (quoting former Los Angeles County District Attorney Robert Philibosian).
323. See, eg., 'Nullification ' Becomes Factor in Simpson Case, ARIZ. REPUBLIC, Oct. 2, 1995, at A2 ("In jury nullification verdicts, the panel rarely takes time to examine the evidence."); Whitaker, supra note 3, at 28 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police."). Interestingly, there were few claims of nullification or bad faith in the time period after the jury had come to a verdict, but before it was announced. At that point, many in the mainstream press believed there would be a verdict of guilty, and gave the best possible gloss to the speed with which the jury had reached a verdict. See, e.g., Henry Weinstein & Tim Rutten, Jury 's Quick Decision Stuns Trial Analysts, FRESNO BEE, Oct. 3, 1995, at A12 ("'Based on that readback [of Allen Park's testimony], the defense should be very worried.'") (quoting former Los Angeles County District Attorney Robert Philibosian).
324. See, eg., 'Nullification ' Becomes Factor in Simpson Case, ARIZ. REPUBLIC, Oct. 2, 1995, at A2 ("In jury nullification verdicts, the panel rarely takes time to examine the evidence."); Whitaker, supra note 3, at 28 ("When the acquittal came back so swiftly, many commentators assumed that the largely black jury had engaged in what legal experts call 'jury nullification' - ignoring the evidence to send a broader message, in this case to the police."). Interestingly, there were few claims of nullification or bad faith in the time period after the jury had come to a verdict, but before it was announced. At that point, many in the mainstream press believed there would be a verdict of guilty, and gave the best possible gloss to the speed with which the jury had reached a verdict. See, e.g., Henry Weinstein & Tim Rutten, Jury 's Quick Decision Stuns Trial Analysts, FRESNO BEE, Oct. 3, 1995, at A12 ("'Based on that readback [of Allen Park's testimony], the defense should be very worried.'") (quoting former Los Angeles County District Attorney Robert Philibosian).
325. See generally Inside the Jury Room, supra note 16.
326. Thus, the jury engaged in an evidence-driven deliberation, in which public balloting occurred late in the process and the individual jurors offered evidence without reference to a particular verdict, as they tried to recreate the events at the time of the alleged crime. See HASTIE ET AL., supra note 182, at 163-65 (describing an evidence-driven deliberation, and contrasting it with a verdict-driven deliberation, which begins with a public ballot and is dominated by statements of verdict preference); see also EDGAR H. SCHEIN, PROCESS CONSULTATION: ITS ROLE IN ORGANIZATIONAL DEVELOPMENT 55-56 (1969) (using the terms "Decision by Majority Rule: Voting and/or Polling" and "Decision by Consensus"); Charles Hawkins, Interaction and Coalition Realignments in Consensus-Seeking Groups: A Study of Experimental Jury Deliberations 106-09 (Aug. 17, 1960) (unpublished doctoral dissertation, University of Chicago) (identifying two styles of jury deliberation: "deliberating in unity" and "deliberating in factions").
327. Thus, the jury engaged in an evidence-driven deliberation, in which public balloting occurred late in the process and the individual jurors offered evidence without reference to a particular verdict, as they tried to recreate the events at the time of the alleged crime. See HASTIE ET AL., supra note 182, at 163-65 (describing an evidence-driven deliberation, and contrasting it with a verdict-driven deliberation, which begins with a public ballot and is dominated by statements of verdict preference); see also EDGAR H. SCHEIN, PROCESS CONSULTATION: ITS ROLE IN ORGANIZATIONAL DEVELOPMENT 55-56 (1969) (using the terms "Decision by Majority Rule: Voting and/or Polling" and "Decision by Consensus"); Charles Hawkins, Interaction and Coalition Realignments in Consensus-Seeking Groups: A Study of Experimental Jury Deliberations 106-09 (Aug. 17, 1960) (unpublished doctoral dissertation, University of Chicago) (identifying two styles of jury deliberation: "deliberating in unity" and "deliberating in factions").
328. See Inside the Jury Room transcript, supra note 16, at 14 (describing what jurors thought Reed "knew"). The Assistant District Attorney, Douglas Simpson, had explained to the jury that "[a] person who has possessed a firearm, with knowledge that they [sic] possessed a firearm while being convicted of a felony, has violated the statute." Id. at 7.
329. Id. (quoting Juror Barbara Bornstein). Although other jurors pointed out to her that the statute did not require Reed to "know" he was a convicted felon, it did require him to "know" that he possessed a handgun. Therefore, other jurors focused their comments on whether Reed knew he possessed a hand-gun.
330. Id. at 15 (quoting Juror Lester Sauvage).
331. See id. at 16 (describing initial ballot).
332. See id. (same).
333. Id. (quoting Juror John Boly).
334. See id. at 16-17, 18-19.
335. See id. at 21 (acquiescing that there are exceptions to the law).
336. Id. at 22 (quoting Juror John Boly).
337. See id. (showing agreement of Juror Karl Buetow with Juror John Boly's point that the prosecutor had been overzealous in bringing this case).
338. Id. at 24 (quoting Juror Barbara Bornstein).
339. Id. (quoting Juror Barbara Bomstein).
340. Id. (quoting Juror Karl Buetow).
341. Id. at 25 (quoting Juror Roberta Bass).
342. Consider the jury deliberations in the case of Modesta Solano, tried for drug possession and transportation. See Enter the Jury Room transcript, supra note 16, at 31-58. The first jury, which deliberated for 12 hours, ended up technically as a hung jury because 2 jurors, rather than all 12, nullified. In contrast, when Solano was retried, the second jury convicted in 45 minutes. See id. at 57. The first jury engaged in a law-regarding process, even though its result would be viewed as law-disregarding insofar as it was a hung jury because of nullifying jurors. The second jury, which was law-regarding insofar as it did not nullify, engaged in a deliberation process that was law-disregarding in that it took a mere 45 minutes to decide to convict, and as a result of 45 minutes of deliberation, the defendant will spend 25 years in jail.
343. Use "dialogue" even though in some cases the jury might "speak" to the other branches, but they might not listen, or they might not listen until juries have spoken over time in the same way. Moreover, the other branches might or might not respond. Nevertheless, in some instances, the dialogue might be more immediate. For example, when a jury nullifies because it does not believe the law should be applied to a particular defendant, the jury sends that message through its verdict of not guilty, and the prosecutor, who is in the courtroom, understands that message immediately. The message can be made even clearer, if need be, by the prosecutor's post-verdict interviews with jurors.
344. James Levine has observed: Capital punishment . . . is a good example: whereas Americans overwhelmingly support the death penalty, juries faced with imposing the death sentence do so infrequently; they reserve this dire punishment for the most grievous of crimes and the very worst offenders. What this suggests is that the prevailing view on this grave matter is much more complex than frequency tabulations generated by Gallup polls would indicate. On this issue and so many others, jurors like the ordinary people from which they are drawn prefer fine-grained judgements to gross generalizations. James P. Levine, Commonsense Justice: Jurors ' Notions of the Law, 16 CRIM. JUST. ETHICS 49 (1997), available in 1997 WL 14380413 (book review); see also Some Jurors Are Rebelling Against '3 Strikes' Law, ORANGE COUNTY REG. (Cal.), Sept 25, 1996, at B6 ("'It's easier for people to vote for the 'three strikes' law when they're faced with the chaos around them . . . . But it's much more difficult when you're in the courtroom dealing with a real human being.'") (quoting jury consultant Karen Jo Koonan).
345. James Levine has observed: Capital punishment . . . is a good example: whereas Americans overwhelmingly support the death penalty, juries faced with imposing the death sentence do so infrequently; they reserve this dire punishment for the most grievous of crimes and the very worst offenders. What this suggests is that the prevailing view on this grave matter is much more complex than frequency tabulations generated by Gallup polls would indicate. On this issue and so many others, jurors like the ordinary people from which they are drawn prefer fine-grained judgements to gross generalizations. James P. Levine, Commonsense Justice: Jurors ' Notions of the Law, 16 CRIM. JUST. ETHICS 49 (1997), available in 1997 WL 14380413 (book review); see also Some Jurors Are Rebelling Against '3 Strikes' Law, ORANGE COUNTY REG. (Cal.), Sept 25, 1996, at B6 ("'It's easier for people to vote for the 'three strikes' law when they're faced with the chaos around them . . . . But it's much more difficult when you're in the courtroom dealing with a real human being.'") (quoting jury consultant Karen Jo Koonan).
346. See KADISH & KADISH, supra note 34, at 81 ("[T]he prosecutor's self-determined power not to prosecute, if legally not as broad as the policeman's power not to arrest, is nonetheless substantially uncontrolled."); id. at 82 ("Indeed, it is widely accepted that a vital part of the prosecutor's official role is to 'determine what offenses, and whom, to prosecute,' even among provably guilty offenders, and that in so doing the prosecutor must 'consider the public impact of criminal proceedings [and] balance the admonitory value of invariable and inflexible punishment against the greater impulse of the quality of mercy.'") (citation omitted); Kent Greenawalt, Conflicts of Law and Morality - Institutions of Amelioration, 67 VA. L. REV. 177, 211 (1981) ("As to many laws, it is doubtful if there is any heavy presumption in favor of enforcement. For these laws at least, one may speak of police and prosecutors as possessing an implicit delegated discretion to decide whether to go forward."); Van Dyke, supra note 122, at 240 ("If an arrest is made, the prosecutor has discretion to bring the matter to court or not.").
347. See KADISH & KADISH, supra note 34, at 81 ("[T]he prosecutor's self-determined power not to prosecute, if legally not as broad as the policeman's power not to arrest, is nonetheless substantially uncontrolled."); id. at 82 ("Indeed, it is widely accepted that a vital part of the prosecutor's official role is to 'determine what offenses, and whom, to prosecute,' even among provably guilty offenders, and that in so doing the prosecutor must 'consider the public impact of criminal proceedings [and] balance the admonitory value of invariable and inflexible punishment against the greater impulse of the quality of mercy.'") (citation omitted); Kent Greenawalt, Conflicts of Law and Morality - Institutions of Amelioration, 67 VA. L. REV. 177, 211 (1981) ("As to many laws, it is doubtful if there is any heavy presumption in favor of enforcement. For these laws at least, one may speak of police and prosecutors as possessing an implicit delegated discretion to decide whether to go forward."); Van Dyke, supra note 122, at 240 ("If an arrest is made, the prosecutor has discretion to bring the matter to court or not.").
348. See KADISH & KADISH, supra note 34, at 81 ("[T]he prosecutor's self-determined power not to prosecute, if legally not as broad as the policeman's power not to arrest, is nonetheless substantially uncontrolled."); id. at 82 ("Indeed, it is widely accepted that a vital part of the prosecutor's official role is to 'determine what offenses, and whom, to prosecute,' even among provably guilty offenders, and that in so doing the prosecutor must 'consider the public impact of criminal proceedings [and] balance the admonitory value of invariable and inflexible punishment against the greater impulse of the quality of mercy.'") (citation omitted); Kent Greenawalt, Conflicts of Law and Morality - Institutions of Amelioration, 67 VA. L. REV. 177, 211 (1981) ("As to many laws, it is doubtful if there is any heavy presumption in favor of enforcement. For these laws at least, one may speak of police and prosecutors as possessing an implicit delegated discretion to decide whether to go forward."); Van Dyke, supra note 122, at 240 ("If an arrest is made, the prosecutor has discretion to bring the matter to court or not.").
349. The Supreme Court described the role of the jury in this way, see Duncan v. Louisiana, 391 U.S. 145, 156 (1968) ("Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge."); however, I think it is also an apt description of the role of a nullifying jury.
350. See Inside the Jury Room transcript, supra note 16, at 7. As described earlier, see supra text accompanying notes 203-219, the trial and jury deliberations in the case of Leroy Reed were filmed and aired on television. The case involved Reed, a convicted felon, who was found to be carrying a firearm, and was charged with violating a Wisconsin statute that prohibited convicted felons from knowingly carrying firearms. See supra notes 205-06 and accompanying text Reed was acquitted by the jury because the jury chose to nullify. The jurors recognized that Reed met the criteria of the statute and should have been convicted, but they chose not to convict for a variety of reasons, including the following: there were extenuating circumstances (Reed's limited intelligence and cooperation with the police); the crime seemed trivial; and the prosecution should direct its efforts to more serious crimes.
351. See John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 AM. J. LEGAL HIST. 201, 235 (1988) (citing an empirical study from which "no valid generalizations may be drawn" but merely noting that "verdicts are still often influenced by jurors' personal knowledge of local customs, attitudes, and even people and places") (citing Dale W. Broeder, The Impact of the Vicinage Requirement: An Empirical Look, 45 NEB. L. REV. 99, 100, 117-18 (1966)).
352. See John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 AM. J. LEGAL HIST. 201, 235 (1988) (citing an empirical study from which "no valid generalizations may be drawn" but merely noting that "verdicts are still often influenced by jurors' personal knowledge of local customs, attitudes, and even people and places") (citing Dale W. Broeder, The Impact of the Vicinage Requirement: An Empirical Look, 45 NEB. L. REV. 99, 100, 117-18 (1966)).
353. See supra notes 68-87 and accompanying text.
354. See supra notes 88-101 and accompanying text.
355. See supra notes 98-99 and accompanying text.
356. U.S. CONST. amend. VI. (emphasis added).
357. Jurors' values infuse the factfinding process. Jurors, in deciding whether they find the testimony of a police officer to be credible, which is often part of factfinding in criminal cases, necessarily draw upon their own views about the reliability of police officers. These views are informed by their past experiences, such as whether the police are people to whom they turn for protection or from whom they are likely to receive harassment.
358. According to one theory of jury decisionmaking, jurors bring to their task a framework, based on their own experiences, perspectives, and world views, in which they place the evidence that they hear at trial and the instructions given to them by the judge. See, e.g., Richard Lempert, Telling Tales in Court: Trial Procedure and the Story Model, 13 CARDOZO L. REV. 559, 570-71 (1991) ("Pennington and Hastie note that jurors construct different stories and that jury deliberations often consist of a contest over which story is to prevail. . . . A major cause of different juror stories is the different background information that jurors bring to their deliberations."); supra note 146 and text accompanying notes 195-97.
359. A typical instruction to the jury on this point is as follows: Each of you must decide the case for yourself, but should do so only after a discussion of the evidence and instructions with the other jurors. You should not hesitate to change an opinion if you are convinced it is erroneous. However, you should not be influenced to decide any question in a particular way because a majority of the jurors or any of them favor such a decision. 3 Reporter's Transcript of Proceedings, at 733, People v. Tillman (Cal. Super. Ct.) (No. A-623621).
360. For example, Judge Lance Ito admonished jurors throughout the trial of O.J. Simpson as follows: "Please remember all my admonitions to you; do not discuss the case amongst yourselves, form any opinions about the case . . . ." 231 Reporter's Transcript of Proceedings, Wed., Sept. 27, 1995, at 47,792, People v. Simpson (Cal. Super. Ct. 1995) (No. BA097211). At the close of the trial, jurors are instructed to continue to keep an open mind during deliberations: It is rarely productive o[r] good for a juror at the outset to make an emphatic expression of his opinion on the case or to state how he intends to vote. When one does that at the beginning, his sense of pride may be aroused, and he may hesitate to change his position, even if shown that it is wrong. 3 Reporter's Transcript of Proceedings, at 734, People v. Tillman (Cal. Super. Ct.) (No. A-623621).
361. See KASSIN & WRIGHTSMAN, supra note 20, at 185 ("[T]he ideal deliberation [i]s one in which the informational influences are strong and the normative influences are weak. Some degree of social pressure is inevitable and perhaps even desirable. . . . The question is, how much pressure is too much?").
362. Hans Zeisel, . . . . And Then There Were None: The Diminution of the Federal Jury, 38 U. CHI. L. REV. 710, 719 (1971).
363. Id. at 719 n.42.
364. Unfortunately, the hung jury is under attack and is not held in high esteem by everyone. There are some critics who question the integrity and worth of the views of holdout jurors. See, e.g., Jeffrey Rosen, One Angry Woman, NEW YORKER, Feb. 24 & Mar. 3, 1997, at 54. Others criticize the hung jury because of the expense and delay it creates for the judicial system. California state legislators, for example, were considering moving from a unanimity requirement in criminal cases to a 10-2 or 11-1 decision rule, in part to save money and in part to "lessen the number of hung juries" in criminal cases. Riley, supra note 6, at A11.
365. Unfortunately, the hung jury is under attack and is not held in high esteem by everyone. There are some critics who question the integrity and worth of the views of holdout jurors. See, e.g., Jeffrey Rosen, One Angry Woman, NEW YORKER, Feb. 24 & Mar. 3, 1997, at 54. Others criticize the hung jury because of the expense and delay it creates for the judicial system. California state legislators, for example, were considering moving from a unanimity requirement in criminal cases to a 10-2 or 11-1 decision rule, in part to save money and in part to "lessen the number of hung juries" in criminal cases. Riley, supra note 6, at A11.
366. Of course, this might change under the Second Circuit's decision in United States v. Thomas, 116 F.3d 606 (2d Cir. 1997). See infra Part VI.A.1. (discussing the harmful effects that might ensue from this opinion, including the threat to the holdout juror).
367. See United States v. Amaya, 509 F.2d 8, 11 (5th Cir. 1975) (citing with approval an earlier case that held that disclosure of the numerical division of a jury that has reached an impasse is a per se error); 1 EDWARD J. DEVITT ET AL., FEDERAL JURY PRACTICE & INSTRUCTIONS, § 5.23, at 163-64 (4th ed. 1992) ("[I]t is a cardinal rule that the court should not ask the jury to report [its] numerical division. This is ground for reversal.").
368. In such a charge, approved in Allen v. United States, 164 U.S. 492 (1896), the judge usually "remind[s the jurors] of the nature of their duty and the time and expense of a trial, and urg[es] them to try again to reach a verdict." United States v. Anderton, 679 F.2d 1199, 1203 (5th Cir. 1982) (citations omitted). Judges in Arizona are now experimenting with an alternative to the Allen charge; they are speaking to juries that have reached an impasse and trying to see how they can help. See THE POWER OF 12, supra note 21, at 120-22; Dann & Logan, supra note 21, at 280 (describing some of Arizona's more controversial jury reforms, including having the judge and jury engage in a dialogue if the jury has reached an impasse to see if the judge or attorneys can provide the jury with additional information).
369. In such a charge, approved in Allen v. United States, 164 U.S. 492 (1896), the judge usually "remind[s the jurors] of the nature of their duty and the time and expense of a trial, and urg[es] them to try again to reach a verdict." United States v. Anderton, 679 F.2d 1199, 1203 (5th Cir. 1982) (citations omitted). Judges in Arizona are now experimenting with an alternative to the Allen charge; they are speaking to juries that have reached an impasse and trying to see how they can help. See THE POWER OF 12, supra note 21, at 120-22; Dann & Logan, supra note 21, at 280 (describing some of Arizona's more controversial jury reforms, including having the judge and jury engage in a dialogue if the jury has reached an impasse to see if the judge or attorneys can provide the jury with additional information).
370. In such a charge, approved in Allen v. United States, 164 U.S. 492 (1896), the judge usually "remind[s the jurors] of the nature of their duty and the time and expense of a trial, and urg[es] them to try again to reach a verdict." United States v. Anderton, 679 F.2d 1199, 1203 (5th Cir. 1982) (citations omitted). Judges in Arizona are now experimenting with an alternative to the Allen charge; they are speaking to juries that have reached an impasse and trying to see how they can help. See THE POWER OF 12, supra note 21, at 120-22; Dann & Logan, supra note 21, at 280 (describing some of Arizona's more controversial jury reforms, including having the judge and jury engage in a dialogue if the jury has reached an impasse to see if the judge or attorneys can provide the jury with additional information).
371. However, there are those who disagree with an Allen charge because it encourages holdouts to succumb to the views of the other jurors or because it fails to serve any useful purpose. According to Judge Brown: In the final analysis the Allen charge itself does not make sense. All it may rightfully say is that there is a duty to consider the views of others but that a conscientious person has finally the right and duty to stand by conscience. If it says that and nothing more it is a superfluous lecture in citizenship. If it says more to declare that mere is a duty to decide, it is legally incorrect as an interference with that rightful independence. Huffman v. United States, 297 F.2d 754, 759 (5th Cir. 1962) (Brown, J., concurring and dissenting).
372. See TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, GERMANY (1947); see also CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL arts. 6(b), 7, 8, 59 Stat 1546,1547-48 (Aug. 8, 1945).
373. See TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, GERMANY (1947); see also CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL arts. 6(b), 7, 8, 59 Stat 1546,1547-48 (Aug. 8, 1945).
374. Judge Ryan, who presided over the case of Modesta Solano, the woman charged with possession and transportation of drugs, commented on the nullifying juror's decision to vote consistent with his conscience in that case. Judge Ryan said of that juror: "He just didn't feel comfortable with what went on here, and so he's interjecting his personal and moral beliefs into it, his - his conscience. And maybe. . . it was legally and rationally the wrong thing to do, but morally he is probably right." Enter the Jury Room transcript, supra note 16, at 49. Although judges do not usually have an opportunity to witness jury deliberations, the judge in this case did because the deliberations had been filmed, and afterward, he acknowledged that there might possibly be a benefit to the nullifying juror who votes consistent with his conscience.
375. United States v. Dougherty, 473 F.2d 1113, 1140 & n.5 (D.C. Cir. 1972) (Bazelon, J., dissenting); United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969); see also Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (describing "the common-sense judgment of a jury" and comparing it to "the more tutored but perhaps less sympathetic reaction of a single judge").
376. Inside the Jury Room transcript, supra note 16, at 11, 15.
377. See 28 U.S.C. § 1866 (g) ("Any person summoned for jury service who fails to appear as directed shall be ordered by the district court to appear forthwith and show cause for his failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $ 100 or imprisoned not more than three days, or both."). States have similar provisions. For example, California recently increased its penalties for noncompliance. See, e.g., Nora Zamichow, County Gets Tough With Jury Duty Scofflaws, L.A. TIMES, June 26, 1996, at B1 (describing a new fine of $ 1,500 for those who fail to respond to a jury summons).
378. See 28 U.S.C. § 1866(c) ("[A]ny person summoned for jury service may be (1) excused by the court . . . upon a showing of undue hardship or extreme inconvenience, for such period as the court deems necessary, at the conclusion of which such person . . . shall be summoned again for jury service . . . .").
379. See 28 U.S.C. § 1865.
380. If jurors start out with this view of the law, then they should not serve on that particular jury. During voir dire, jurors are asked if they can be impartial, which at the very least means that they do not have a fixed view of the case and could vote either way. If they know they cannot be impartial, then they should say so. Such jurors will be excused from that jury panel and placed on another. I part company with Professor Butler and the Fully Informed Jury Association (FIJA), both of whom believe, though for very different reasons, that jurors should lie during voir dire so that they can serve on that particular jury and vote to nullify. See infra text accompanying notes 259-91.
381. It could be argued that when men are drafted into the army, they are required to serve and to do things that their conscience might oppose. While this is certainly true, there are ways in which military service is unlike jury service. For example, jurors are asked to think on their own and to reach what they believe to be the right answer; those in the army are seldom given such instructions. Admittedly, jurors are also told to follow the law, but they are left to their own devices in the jury room with no supervision from the judge, which is quite unlike the military that operates with a strict sense of hierarchy. Finally, one of the lessons of My Lai during the Vietnam War was that even in the military, officers at least, are required to take responsibility for exercising judgment, including the judgment to challenge orders that are morally repugnant.
382. If a juror announced to the judge in the middle of the trial that he or she could no longer be impartial, then the judge would have to dismiss the juror. However, this would be an extraordinary occurrence. Jurors are not told of this possibility, and all of the pressures on them are in the direction of continued jury service.
383. See Enter the Jury Room transcript, supra note 16, at 48-49.
384. Id. at 49 (quoting Juror "Joe"). Similarly, the jury in Inside the Jury Room, when trying to convince the holdout juror to agree to nullify and to vote to acquit Leroy Reed, also recognized the need for that juror to vote in a way that was consistent with his sense of what was right. It was less clear that the holdout juror managed to do that He explained: "I will change and vote along with you to make a unanimous vote. But I will never feel right about it." Inside the Jury Room transcript, supra note 16, at 24. The other jurors continued to try to help him feel better about his decision to join them. See id. at 25.
385. Several states formed commissions to examine jury service and to recommend reforms that would ease some of the burdens currently placed on jurors. See, e.g., POWER OF 12, supra note 21 (Arizona); The Jury Project, Report to the Chief Judge of the State of New York (Mar. 31, 1994).
386. As the frieze at the entrance to the U.S. Supreme Court reads: "Equal Justice Under Law." See FRED J. MAROON, THE SUPREME COURT OF THE UNITED STATES 40, 42, 44-45 (1996). This is supposed to mean that those who are similarly situated receive equal treatment.
387. See supra text accompanying notes 68-81, 88-101, 108-11, 227-29.
388. See KADISH & KADISH, supra note 34, at 73-76, 81-83, 85-91 (describing the ways in which those in official positions have discretion and can decide whether to pursue a case or not); see also Van Dyke, supra note 122, at 240 ("Whenever a criminal act occurs, the policeman investigating the matter has discretion whether to make an arrest. If an arrest is made, the prosecutor has discretion to bring the matter to court or not The trial judge then has discretion to allow the matter to be brought into his court or not.").
389. See supra notes 98-99 and accompanying text (describing the effect of nullifying juries on prosecutorial decisions in three strikes cases in San Francisco).
390. See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 691 (1995) (describing the criminal justice system as racist).
391. See id. at 677.
392. See Linda Chavez & Robert Lemer, Is the Justice System Rigged Against Blacks?, WALL ST. J., Dec. 4, 1996, at A19 (describing Paul Butler's proposal that black jurors should engage in "widespread jury nullification"); Holden et al., Race Seems, supra note 113, at A1 ("In a forthcoming law-review article, Mr. Butler even argues that in nonviolent crimes, black jurors should 'presume in favor of nullification.'").
393. See Linda Chavez & Robert Lemer, Is the Justice System Rigged Against Blacks?, WALL ST. J., Dec. 4, 1996, at A19 (describing Paul Butler's proposal that black jurors should engage in "widespread jury nullification"); Holden et al., Race Seems, supra note 113, at A1 ("In a forthcoming law-review article, Mr. Butler even argues that in nonviolent crimes, black jurors should 'presume in favor of nullification.'").
394. See Paul Butler, Black Jurors: Right to Acquit? (Jury Nullification), HARPER'S MAG., Dec. 1, 1995, at 11 (carrying an abridged version of Butler's article); Crime and Punishment? Jury Nullification Is a Clear Signal That Blacks Are Losing Confidence in the Criminal Justice System, CHI. TRIB., Nov. 15, 1995, at 21 ("Paul Butler . . . writes in the December issue of The Yale Law Journal (excerpted in the December issue of Harper's) that it often is entirely appropriate for black jurors to take race into account."); Jeffrey Rosen, Journey to Justice, NEW REPUBLIC, Dec. 9, 1996, at 27 (book reviews) ("Accepting the idea of legal instrumentalism - that blacks should use power, when they have it, to serve the interests of the black community - Butler called on African American jurors to use their power to free guilty black defendants accused of nonviolent drug crimes."); David Van Biema, Marching to Farra- khan's Tune, TIME, Oct. 16, 1995, at 74 ("A forthcoming article in the Yale Law Review by Paul Butler, a law professor at George Washington University, reports that inner-city juries are increasingly acquitting black men they know to be guilty.").
395. See Paul Butler, Black Jurors: Right to Acquit? (Jury Nullification), HARPER'S MAG., Dec. 1, 1995, at 11 (carrying an abridged version of Butler's article); Crime and Punishment? Jury Nullification Is a Clear Signal That Blacks Are Losing Confidence in the Criminal Justice System, CHI. TRIB., Nov. 15, 1995, at 21 ("Paul Butler . . . writes in the December issue of The Yale Law Journal (excerpted in the December issue of Harper's) that it often is entirely appropriate for black jurors to take race into account."); Jeffrey Rosen, Journey to Justice, NEW REPUBLIC, Dec. 9, 1996, at 27 (book reviews) ("Accepting the idea of legal instrumentalism - that blacks should use power, when they have it, to serve the interests of the black community - Butler called on African American jurors to use their power to free guilty black defendants accused of nonviolent drug crimes."); David Van Biema, Marching to Farra- khan's Tune, TIME, Oct. 16, 1995, at 74 ("A forthcoming article in the Yale Law Review by Paul Butler, a law professor at George Washington University, reports that inner-city juries are increasingly acquitting black men they know to be guilty.").
396. See Paul Butler, Black Jurors: Right to Acquit? (Jury Nullification), HARPER'S MAG., Dec. 1, 1995, at 11 (carrying an abridged version of Butler's article); Crime and Punishment? Jury Nullification Is a Clear Signal That Blacks Are Losing Confidence in the Criminal Justice System, CHI. TRIB., Nov. 15, 1995, at 21 ("Paul Butler . . . writes in the December issue of The Yale Law Journal (excerpted in the December issue of Harper's) that it often is entirely appropriate for black jurors to take race into account."); Jeffrey Rosen, Journey to Justice, NEW REPUBLIC, Dec. 9, 1996, at 27 (book reviews) ("Accepting the idea of legal instrumentalism - that blacks should use power, when they have it, to serve the interests of the black community - Butler called on African American jurors to use their power to free guilty black defendants accused of nonviolent drug crimes."); David Van Biema, Marching to Farra- khan's Tune, TIME, Oct. 16, 1995, at 74 ("A forthcoming article in the Yale Law Review by Paul Butler, a law professor at George Washington University, reports that inner-city juries are increasingly acquitting black men they know to be guilty.").
397. See Paul Butler, Black Jurors: Right to Acquit? (Jury Nullification), HARPER'S MAG., Dec. 1, 1995, at 11 (carrying an abridged version of Butler's article); Crime and Punishment? Jury Nullification Is a Clear Signal That Blacks Are Losing Confidence in the Criminal Justice System, CHI. TRIB., Nov. 15, 1995, at 21 ("Paul Butler . . . writes in the December issue of The Yale Law Journal (excerpted in the December issue of Harper's) that it often is entirely appropriate for black jurors to take race into account."); Jeffrey Rosen, Journey to Justice, NEW REPUBLIC, Dec. 9, 1996, at 27 (book reviews) ("Accepting the idea of legal instrumentalism - that blacks should use power, when they have it, to serve the interests of the black community - Butler called on African American jurors to use their power to free guilty black defendants accused of nonviolent drug crimes."); David Van Biema, Marching to Farra-khan's Tune, TIME, Oct. 16, 1995, at 74 ("A forthcoming article in the Yale Law Review by Paul Butler, a law professor at George Washington University, reports that inner-city juries are increasingly acquitting black men they know to be guilty.").
398. See ABC Nightline: America in Black and White (Part I) (ABC television broadcast, Aug. 26, 1997) (providing an interview with Butler and examining his views on jury nullification).
399. See Butler, supra note 259, at 679.
400. See id. at 715 ("Finally, in cases involving nonviolent, malum prohibition offenses, including 'victimless' crimes like narcotics offenses, there should be a presumption in favor of nullification. . . . If my model is faithfully executed, the result would be that fewer black people would go to prison . . . .").
401. See id. at 695-97 (providing examples of disparate treatment of African Americans by the criminal justice system).
402. See id. at 709-11; id. at 712 ("African-Americans should embrace the antidemocratic nature of jury nullification because it provides them with the power to determine justice in a way that majority rule does not.").
403. See id. at 681-88 (describing two cases in which judges failed to acknowledge the difference that race might make in criminal cases).
404. See id. at 709-12 (describing how other avenues for democratic change are closed to African Americans, leaving the jury as the only available vehicle).
405. See id. at 694 ("[W]hen many African-Americans are locked up, it is because of a situation that white supremacy created.").
406. See id. at 689-90 ("[R]ace matters when a black person violates American criminal law and when a black juror decides how she should exercise her power to put another black man in prison.") (footnote omitted).
407. See id. at 690-700 (offering moral and legal reasons why African Americans should support Butler's proposal).
408. However, African-American jurors would need to participate in deliberations if they wanted to try to convince others to vote their way (otherwise the jury would be a hung jury rather than a nullifying one).
409. African-American feminists have urged white feminists not to see all women as if they have only one race, and it is white. See ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF EXCLUSION IN FEMINIST THOUGHT 122-23 (1988); Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 155, 156. Butler makes a similar mistake when he sees all African Americans as having only one point of view. See, e.g., GLORIA NAYLOR, THE WOMEN OF BREWSTER PLACE (1980) (depicting the lives of a fictional community of African-American women living on Brewster Place and exploring their different attitudes, perspectives, and life experiences as well as the points at which they come into conflict with other members of Brewster Place).
410. African-American feminists have urged white feminists not to see all women as if they have only one race, and it is white. See ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF EXCLUSION IN FEMINIST THOUGHT 122-23 (1988); Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 155, 156. Butler makes a similar mistake when he sees all African Americans as having only one point of view. See, e.g., GLORIA NAYLOR, THE WOMEN OF BREWSTER PLACE (1980) (depicting the lives of a fictional community of African-American women living on Brewster Place and exploring their different attitudes, perspectives, and life experiences as well as the points at which they come into conflict with other members of Brewster Place).
411. African-American feminists have urged white feminists not to see all women as if they have only one race, and it is white. See ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF EXCLUSION IN FEMINIST THOUGHT 122-23 (1988); Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 155, 156. Butler makes a similar mistake when he sees all African Americans as having only one point of view. See, e.g., GLORIA NAYLOR, THE WOMEN OF BREWSTER PLACE (1980) (depicting the lives of a fictional community of African-American women living on Brewster Place and exploring their different attitudes, perspectives, and life experiences as well as the points at which they come into conflict with other members of Brewster Place).
412. See, e.g., id. at 722 ("What if White People Start Nullifying Too?"); id. at 706 n.158 (explaining that his focus is on African Americans and their unique history which provides justification for nullification that is inapplicable to whites; however, Butler does not mention other groups, many of which might have a similar history).
413. One of the main reasons for a for-cause challenge is to remove those jurors who cannot be impartial. See Hopt v. Utah, 120 U.S. 430, 433 (1887) (explaining that a for-cause challenge is appropriate if the prospective juror has "formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged").
414. See Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting the prosecutor's use of peremptory challenges based on race).
415. See Purkett v. Elem, 514 U.S. 765 (1995) (per curiam) (allowing reasons for the exercise of the peremptory challenge to be unrelated to the facts of the case as long as they are nondiscriminatory).
416. See Jean Montoya, The Future of the Post-Batson Peremptory Challenge: Voir Dire by Questionnaire and the "Blind" Peremptory, 29 U. MICH. J.L. REFORM 981, 998-1009 (1996) (describing an empirical study showing the ineffectiveness of Batson). The Supreme Court has permitted lawyers to give unrelated reasons, no matter how fanciful, by holding in Purkett, 514 U.S. at 765, that the reasons need not be related to the facts of the case.
417. See supra note 191 (describing efforts to broaden the lists from which names for the venire are selected).
418. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (extending Batson to gender-based peremptory challenges); Georgia v. McCollum, 505 U.S. 42 (1992) (holding that defendants are bound by the same rules as prosecutors with respect to race-based peremptory challenges); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (holding that private litigants in a civil suit cannot use peremptory challenges to exclude jurors on account of their race); Powers v. Ohio, 499 U.S. 400 (1991) (establishing that white defendants can challenge a prosecutor's use of a race-based peremptory challenge); Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from using peremptory challenges to strike prospective jurors on the basis of race).
419. See Butler, supra note 259, at 724 n.236 ("The African-American juror facing this situation [of being asked her views during voir dire] would be placed in the difficult position of having to choose between revealing her racial sympathy, and thus surrendering her power, or denying her racial sympathy, and thus committing perjury. Yet the legal and moral case for jury nullification might lead the juror to believe that her perjury would be morally justifiable.").
420. Leaving aside drug crimes, there is little evidence that racially discriminatory law enforcement accounts for a large part of the incarceration rate of African Americans. Michael Tonry explains: [P]erhaps surprisingly, for nearly a decade there has been a near consensus among scholars and policy analysts that most of the black punishment disproportions result not from racial bias or discrimination within the system but from patterns of black offending and of blacks' criminal records. Drug law enforcement is the conspicuous exception. Blacks are arrested and confined in numbers grossly out of line with their use or sale of drugs. MICHAEL TONRY, MALIGN NEGLECT - RACE, CRIME, AND PUNISHMENT IN AMERICA 49 (1995). However, with respect to drug crimes, Butler has a stronger claim as to enforcement that discriminates against African Americans. See, e.g., Bob Herbert, The Quality of Mercy, N.Y. TIMES, Nov. 27, 1997, at A39 ("A research fellow at Harvard Medical School, William Brownsberger, reported this week that nearly half the inmates serving long mandatory drug sentences in Massachusetts had 'no record of violence' and - not surprisingly - most were African-Americans and Latinos from poor neighborhoods."). But if this is the case, then Butler should ask all jurors to respond to this more limited claim of discriminatory enforcement in drug cases, rather than enlarge his claim to include all nonviolent crimes, and he should not limit his appeal to jurors of one race, but should make his appeal to jurors of all races and urge them to vote consistent with their sense that discriminatory enforcement of drug crimes is unjust.
421. See Butler, supra note 259, at 697 n.110 ("There is no doubt that African-Americans are disproportionately the victims of crime. For example, in 1992, blacks accounted for approximately 49% of all murder victims."); id. at 699 (noting that "blacks are more likely to be the victims of crimes"); id. at 699 n.117 ("The victimization rate of blacks is higher than that of any other racial group for almost all crimes, including murder, rape, robbery, aggravated assault, and larceny.").
422. See, e.g., id. at 722 ("What if White People Start Nullifying Too?"); id. at 706 n. 158 (explaining that his focus is on African Americans and their unique history which provides justification for nullification that is inapplicable to whites; however, Butler does not mention other groups, many of which might have a similar history).
423. One of the main reasons for a for-cause challenge is to remove those jurors who cannot be impartial. See Hopt v. Utah, 120 U.S. 430, 433 (1887) (explaining that a for-cause challenge is appropriate if the prospective juror has "formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offense charged").
424. See Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting the prosecutor's use of peremptory challenges based on race).
425. See Purkett v. Elem, 514 U.S. 765 (1995) (per curiam) (allowing reasons for the exercise of the peremptory challenge to be unrelated to the facts of the case as long as they are nondiscriminatory).
426. See Jean Montoya, The Future of the Post-Batson Peremptory Challenge: Voir Dire by Questionnaire and the "Blind" Peremptory, 29 U. MICH. J.L. REFORM 981, 998-1009 (1996) (describing an empirical study showing the ineffectiveness of Batson). The Supreme Court has permitted lawyers to give unrelated reasons, no matter how fanciful, by holding in Purkett, 514 U.S. at 765, that the reasons need not be related to the facts of the case.
427. See supra note 191 (describing efforts to broaden the lists from which names for the venire are selected).
428. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (extending Batson to gender-based peremptory challenges); Georgia v. McCollum, 505 U.S. 42 (1992) (holding that defendants are bound by the same rules as prosecutors with respect to race-based peremptory challenges); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (holding that private litigants in a civil suit cannot use peremptory challenges to exclude jurors on account of their race); Powers v. Ohio, 499 U.S. 400 (1991) (establishing that white defendants can challenge a prosecutor's use of a race-based peremptory challenge); Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor ftom using peremptory challenges to strike prospective jurors on the basis of race).
429. See generally FIJA ACTIVIST.
430. See Activists Supply Shop (visited Mar. 24, 1998) .
431. See Web Page (visited Mar. 23,1998) .
432. As of 1991, FIJA had persuaded legislators in Alaska, Arizona, Georgia, Louisiana, Massachusetts, New York, Oklahoma, Tennessee, and Wyoming to introduce bills that would inform jurors of their power to nullify. See Scheflin & Van Dyke, supra note 122, at 177. FIJA's proposal to inform jurors about nullification was contained in a bill that reached the Iowa House floor in 1994, see Santiago Frank, A Red-Hot Subject for Judges, Lawyers, DES MOINES REG., Dec.
433. As of 1991, FIJA had persuaded legislators in Alaska, Arizona, Georgia, Louisiana, Massachusetts, New York, Oklahoma, Tennessee, and Wyoming to introduce bills that would inform jurors of their power to nullify. See Scheflin & Van Dyke, supra note 122, at 177. FIJA's proposal to inform jurors about nullification was contained in a bill that reached the Iowa House floor in 1994, see Santiago Frank, A Red-Hot Subject for Judges, Lawyers, DES MOINES REG., Dec. 17, 1995, at 1, and "[s]imilar bills have appeared in 25 state legislatures since 1991." Joe Lambe, Bill Would Let Juries Decide Law in Cases; Legal Establishment Reacts to Measure with Shock, Dread, KANSAS CITY STAR, Apr. 8, 1996, at A1. The bills, after making some legislative progress, were, in the end, unsuccessful: "One failed this year in Kansas. One passed the Oklahoma House last year but died in the Senate. Others have passed the Arizona Senate and Legislative committees in Utah, Montana and Iowa before failing in those states." Id. In 1996, Assemblyman Steve Baldwin introduced "a bill to amend the Code of Civil Procedure [in California] to include a jury nullification clause in juror instructions for misdemeanor cases." Mike Lewis, Will the State Codify Jury Nullification?, L.A. DAILY J., Apr. 3, 1996, at 1.
434. As of 1991, FIJA had persuaded legislators in Alaska, Arizona, Georgia, Louisiana, Massachusetts, New York, Oklahoma, Tennessee, and Wyoming to introduce bills that would inform jurors of their power to nullify. See Scheflin & Van Dyke, supra note 122, at 177. FIJA's proposal to inform jurors about nullification was contained in a bill that reached the Iowa House floor in 1994, see Santiago Frank, A Red-Hot Subject for Judges, Lawyers, DES MOINES REG., Dec. 17, 1995, at 1, and "[s]imilar bills have appeared in 25 state legislatures since 1991." Joe Lambe, Bill Would Let Juries Decide Law in Cases; Legal Establishment Reacts to Measure with Shock, Dread, KANSAS CITY STAR, Apr. 8, 1996, at A1. The bills, after making some legislative progress, were, in the end, unsuccessful: "One failed this year in Kansas. One passed the Oklahoma House last year but died in the Senate. Others have passed the Arizona Senate and Legislative committees in Utah, Montana and Iowa before failing in those states." Id. In 1996, Assemblyman Steve Baldwin introduced "a bill to amend the Code of Civil Procedure [in California] to include a jury nullification clause in juror instructions for misdemeanor cases." Mike Lewis, Will the State Codify Jury Nullification?, L.A. DAILY J., Apr. 3, 1996, at 1.
435. As of 1991, FIJA had persuaded legislators in Alaska, Arizona, Georgia, Louisiana, Massachusetts, New York, Oklahoma, Tennessee, and Wyoming to introduce bills that would inform jurors of their power to nullify. See Scheflin & Van Dyke, supra note 122, at 177. FIJA's proposal to inform jurors about nullification was contained in a bill that reached the Iowa House floor in 1994, see Santiago Frank, A Red-Hot Subject for Judges, Lawyers, DES MOINES REG., Dec. 17, 1995, at 1, and "[s]imilar bills have appeared in 25 state legislatures since 1991." Joe Lambe, Bill Would Let Juries Decide Law in Cases; Legal Establishment Reacts to Measure with Shock, Dread, KANSAS CITY STAR, Apr. 8, 1996, at A1. The bills, after making some legislative progress, were, in the end, unsuccessful: "One failed this year in Kansas. One passed the Oklahoma House last year but died in the Senate. Others have passed the Arizona Senate and Legislative committees in Utah, Montana and Iowa before failing in those states." Id. In 1996, Assemblyman Steve Baldwin introduced "a bill to amend the Code of Civil Procedure [in California] to include a jury nullification clause in juror instructions for misdemeanor cases." Mike Lewis, Will the State Codify Jury Nullification?, L.A. DAILY J., Apr. 3, 1996, at 1.
436. FIJA has circulated petitions for ballot initiatives in Arkansas, California, Colorado, Florida, Idaho, Montana, Utah, and Washington. See Scheflin & Van Dyke, supra note 122, at 178.
437. Before the trial of Shelley Shannon, charged with the shooting of George Tiller, a doctor who performed abortions, anti-abortionists distributed FIJA leaflets at the courthouse which said: "'Do not admit knowledge of this material. . . . Agree (injury selection) to uphold the law. . . . When you go into deliberations, do not admit knowledge of FIJA or this material to other jurors.'" Lambe, supra note 288, at A1.
438. For a fictional account of an anti-smoking juror who sought to serve on the jury and influence the verdict in a case involving tobacco companies, see JOHN GRISHAM, THE RUNAWAY JURY (1996).
439. See, e.g., Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505, 513 (1984) (noting that "since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown" and holding that the district court erred in excluding the public from six weeks of voir dire); United States v. Brooklier, 685 F.2d 1162, 1167 (9th Cir. 1982) (observing that "[u]nder current practice, voir dire is normally conducted in open court" and concluding that the district judge should not have done otherwise without satisfying the procedural prerequisites for closure to the press and public).
440. See, e.g., Babcock, supra note 179, at 549 ("[T]He limited questions put by the judge to the panel as a group greatly reduce the information produced by the voir dire.").
441. See Kimba M. Wood, The 1995 Justice Lester W. Roth Lecture: Reexamining the Access Doctrine, 69 S. CAL. L. REV. 1105, 1118-20 (1996) (noting that during voir dire jurors are more forthcoming in private than in public); see also Babcock, supra note 179, at 547 ("[A]nother method of restricting the information-gathering function of voir dire is to address all questions to the jury panel at once, rather than as individuals.").
442. See Kimba M. Wood, The 1995 Justice Lester W. Roth Lecture: Reexamining the Access Doctrine, 69 S. CAL. L. REV. 1105, 1118-20 (1996) (noting that during voir dire jurors are more forthcoming in private than in public); see also Babcock, supra note 179, at 547 ("[A]nother method of restricting the information-gathering function of voir dire is to address all questions to the jury panel at once, rather than as individuals.").
443. See FED. R. CIV. P. 47(b); FED. R. CRIM. P. 24(b).
444. See, e.g., KASSIN & WRIGHTSMAN, supra note 20, at 50 (describing the process of using voir dire to educate jurors, though that is not the main purpose of voir dire).
445. For an example of a typical admonition to the jury, see Judge Lance Ito's admonition at the close of each trial session: "Please remember all my admonitions to you; do not discuss the case amongst yourselves, form any opinions about the case, conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case." 231 Reporter's Transcript of Proceedings, Wed., Sept. 27, 1995, at 47,792, People v. Simpson (Cal. Super. Ct. 1995) (No. BA097211). Some judges, however, are experimenting with allowing jurors to engage in some discussion even before the trial has ended. See Dann & Logan, supra note 21, at 281, 283.
446. See GRISHAM, supra note 291.
447. See infra note 335 (describing the perjury charge brought against Laura Kriho, a juror who had served in a drug case).
448. In California Superior Court, for example, jurors in criminal trials take the following oath: "You and each of you, do solemnly swear that you will well and truly try the cause now pending before this Court, and a true verdict render therein, according to the evidence and the instructions of the Court, so help you God?" CALIFORNIA SUPERIOR COURT CRIMINAL TRIAL JUDGES' DESKBOOK 356 (Ronald M. George ed., 1988 ed.).
449. See supra notes 132-35, 155 and accompanying text (describing judge's instructions to jurors on the need to follow the law as given to them by the judge).
450. See Note, Judges' Nonverbal Behavior in Jury Trials: A Threat to Judicial Impartiality, 61 VA. L. REV. 1266, 1278 (1975) (noting jurors' tendency to look to the judge for guidance because they are uncertain how to perform their new role); see also Note, The Appearance of Justice: Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials, 38 STAN. L. REV. 89 (1985) (describing the ways in which judges may convey their expectations for trial outcomes to jurors through subtle, nonverbal cues, such as facial expressions or tone of voice); Robert J. Hirsh et al., Attorney Voir Dire and Arizona's Jury Reform Package, ARIZ. ATT'Y, Apr. 1996, at 24, 32 ("Jurors very quickly pick up on judges' expectations and mannerisms . . . . While it is seldom the intention of judges to reveal these, expectations of the court for the jurors in courtrooms are usually quite evident, especially to those anxious jurors.").
451. See Note, Judges' Nonverbal Behavior in Jury Trials: A Threat to Judicial Impartiality, 61 VA. L. REV. 1266, 1278 (1975) (noting jurors' tendency to look to the judge for guidance because they are uncertain how to perform their new role); see also Note, The Appearance of Justice: Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials, 38 STAN. L. REV. 89 (1985) (describing the ways in which judges may convey their expectations for trial outcomes to jurors through subtle, nonverbal cues, such as facial expressions or tone of voice); Robert J. Hirsh et al., Attorney Voir Dire and Arizona's Jury Reform Package, ARIZ. ATT'Y, Apr. 1996, at 24, 32 ("Jurors very quickly pick up on judges' expectations and mannerisms . . . . While it is seldom the intention of judges to reveal these, expectations of the court for the jurors in courtrooms are usually quite evident, especially to those anxious jurors.").
452. See Note, Judges' Nonverbal Behavior in Jury Trials: A Threat to Judicial Impartiality, 61 VA. L. REV. 1266, 1278 (1975) (noting jurors' tendency to look to the judge for guidance because they are uncertain how to perform their new role); see also Note, The Appearance of Justice: Judges' Verbal and Nonverbal Behavior in Criminal Jury Trials, 38 STAN. L. REV. 89 (1985) (describing the ways in which judges may convey their expectations for trial outcomes to jurors through subtle, nonverbal cues, such as facial expressions or tone of voice); Robert J. Hirsh et al., Attorney Voir Dire and Arizona's Jury Reform Package, ARIZ. ATT'Y, Apr. 1996, at 24, 32 ("Jurors very quickly pick up on judges' expectations and mannerisms . . . . While it is seldom the intention of judges to reveal these, expectations of the court for the jurors in courtrooms are usually quite evident, especially to those anxious jurors.").
453. See supra note 301.
454. See supra notes 127, 155 (noting that federal and almost all state courts do not provide an instruction on nullification).
455. See infra note 336 (describing Bushel's Case).
456. In criminal cases in federal court, the jury usually consists of 12 jurors. See FED. R. CRIM. P. 23(b) ("Juries shall be of 12 but. . . a valid verdict may be returned by a jury of less than 12 should the court find it necessary . . . ."). Juries in civil cases typically consist of fewer jurors. Juries in civil cases in federal court must consist of at least six jurors. See FED. R. CIV. P. 48 ("The court shall seat a jury of not fewer than six members and not more than twelve members . . . .").
457. See, e.g., KASSIN & WRIGHTSMAN, supra note 20, at 182 ("The majority almost always wins."). For studies in other disciplines that show how people begin to doubt their own views and eventually conform to others' views, see Solomon E. Asch, Opinions and Social Pressure, SCI. AM., Nov. 1955, at 31; see also Robert Buckhout, Eyewitness Testimony, Sci. AM., Dec. 1974, at 23, 28-29 (describing experiments in which subjects have acquiesced with others in making judgments, even when they are right and the others are wrong).
458. See, e.g., KASSIN & WRIGHTSMAN, supra note 20, at 182 ("The majority almost always wins."). For studies in other disciplines that show how people begin to doubt their own views and eventually conform to others' views, see Solomon E. Asch, Opinions and Social Pressure, SCI. AM., Nov. 1955, at 31; see also Robert Buckhout, Eyewitness Testimony, Sci. AM., Dec. 1974, at 23, 28-29 (describing experiments in which subjects have acquiesced with others in making judgments, even when they are right and the others are wrong).
459. See, e.g., KASSIN & WRIGHTSMAN, supra note 20, at 182 ("The majority almost always wins."). For studies in other disciplines that show how people begin to doubt their own views and eventually conform to others' views, see Solomon E. Asch, Opinions and Social Pressure, SCI. AM., Nov. 1955, at 31; see also Robert Buckhout, Eyewitness Testimony, Sci. AM., Dec. 1974, at 23, 28-29 (describing experiments in which subjects have acquiesced with others in making judgments, even when they are right and the others are wrong).
460. In criminal cases in federal court, unanimity is required for conviction. See FED. R. CRIM. P. 31(a) ("The verdict shall be unanimous."). Many states also require unanimous verdicts in criminal trials. See, e.g., ARIZ. CONST. OF 1910, art. II, § 23 (1982) ("In all criminal cases the unanimous consent of the jurors shall be necessary to render a verdict."); OKLA. CONST. OF 1907, art. II, § 19 (1981) ("In all other cases [other than civil and criminal cases less than felonies] the entire number of jurors must concur to render a verdict."); COLO. REV. STAT. § 16-10-108 (1997) ("The verdict of the jury shall be unanimous."); HAW. REV. STAT. ANN. § 83 (Michie 1997) ("No person shall be convicted in any criminal case except by unanimous verdict of the jury."); 725 ILL. COMP. STAT. 5/115-4(o) (West 1996) ("A defendant tried by the court and jury shall only be found guilty . . . upon the unanimous verdict of the jury."); KY. REV. STAT. ANN. § 29A.280 (Michie 1992) ("A unanimous verdict is required in all criminal trials by jury."); MINN. STAT. ANN. § 480.059 (West 1990) ("The supreme court shall not have the power to adopt or promulgate any rule requiring less than unanimous verdicts in criminal cases."); MONT. CODE ANN. § 46-16-603 (1997) ("The verdict must be unanimous in all criminal actions."); N.C. GEN. STAT. § 15A-1201 (Supp. 1997) ("In all criminal cases the defendant has the right to be tried by a jury of 12 whose verdict must be unanimous."); OR. REV. STAT. § 221.349(1) (1997) ("The verdict of the jury shall be unanimous."); W. VA. CODE § 50-5-8 (1994) ("Any defendant in any criminal action shall be entitled to a trial by jury, and any such verdict must be unanimous."); WYO. STAT. ANN. § 7-11-501 (Michie 1997) ("In all criminal cases the verdict shall be unanimous."); N.M. R. CRIM. P. 5-611(A) (Michie 1998) ("The verdict shall be unanimous . . . ."). Of course, in those states in which unanimity is not required of criminal juries, all of the jurors do not need to be persuaded, and thus, the deliberation operates as less of a constraint than in states in which unanimity is required.
461. See 12 ANGRY MEN (Metro-Goldwyn-Mayer/United Artists 1957) (depicting Henry Fonda's success in convincing 11 other jurors to vote for acquittal after they had voted initially for a guilty verdict).
462. Outcomes like the one in 12 Angry Men "almost never occur in real life." HANS & VIDMAR, supra note 183, at 110. Research has shown that the "[p]ressures to conform to the group are strong," and "[i]t is only when a minority juror has initial support, in the form of other jurors with similar views, that the probability that a juror will sway the majority or hang the jury improves." Id.
463. See, e.g., KALVEN & ZEISEL, supra note 59, at 462; Rita J. Simon, Jury Nullification, or Prejudice and Ignorance in the Marion Barry Trial, 20 J. CRIM. JUST. 261, 263 (1992) ("There were no instances [in data from the University of Chicago Experimental Jury Project] in which one juror or even two held out against the other ten or eleven and then succeeded in persuading them to adopt their position.").
464. See, e.g., KALVEN & ZEISEL, supra note 59, at 462; Rita J. Simon, Jury Nullification, or Prejudice and Ignorance in the Marion Barry Trial, 20 J. CRIM. JUST. 261, 263 (1992) ("There were no instances [in data from the University of Chicago Experimental Jury Project] in which one juror or even two held out against the other ten or eleven and then succeeded in persuading them to adopt their position.").
465. See supra notes 234, 307. For anecdotal examples, see Inside the Jury Room transcript, supra note 16, at 24 ("'I will not hold out to hold up 11 people that are very strong in their feelings. I would -I will change and vote along with you to make a unanimous vote.'") (quoting Juror Karl Buetow); William Finnegan, Doubt, NEW YORKER, Jan. 31, 1994, at 48, 53 ("On our second day of deliberations, the school teacher and 1 quickly caved in. I don't know what her rationale was, but I cobbled together a little theory about reasonable doubt and an alibi defense.").
466. See supra note 240 (describing Allen charge).
467. See FED. R. CRIM. P. 31 (a) ("The verdict . . . shall be returned by the jury to the judge in open court.").
468. See FED. R. CRIM. P. 31(d) ("When a verdict is returned and before it is recorded the jury shall be polled at the request of any party or upon the court's own motion.").
469. See Ballew v. Georgia, 435 U.S. 223, 233 n.15 (1978) (citing a study indicating that individual prejudice is more easily overcome in group situations); HANS & VIDMAR, supra note 183, at 50 ("The jury's heterogeneous makeup may also lessen the power of prejudice. Biases for and against the defendant, if evenly distributed on the jury, may cancel each other out.").
470. See HANS & VIDMAR, supra note 183, at 50 ("[A] jury composed of individuals with a wide range of experiences, backgrounds, and knowledge is more likely to perceive the facts from different perspectives and thus engage in a vigorous and thorough debate.").
471. I assume nullification occurs infrequently. I make this assumption based on the institutional constraints, see supra Part V.B.3., that I believe limit juries' opportunities to nullify. In view of these constraints, nullification is likely to occur only in the most extreme cases. At least one other scholar shares my assumption. See infra note 351 and accompanying text There is a need, however, for empirical work to establish whether this assumption is justified.
472. See United States v. Thomas, 116 F.3d 606 (2d Cir. 1997). In Thomas, several of the defendants had been convicted of violations of federal narcotics laws and then appealed on the ground that the district court judge abused his discretion by removing one of the jurors pursuant to Federal Rule of Criminal Procedure 23(b). See FED. R. CRIM. P. 23(b) ("[I]f the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court a valid verdict may be returned by the remaining 11 jurors."). There were two sets of defendants and two separate trials. The appeal decided in Thomas involved the set of defendants convicted in the second trial: Grady Thomas, Ramse Thomas, Jason Thomas, Tracey Thomas, and Loray Thomas. See Thomas, 116 F.3d at 608-09.
473. See id. at 606.
474. See id. at 608.
475. See id.
476. See id. at 609.
477. Id. at 611.
478. Id.
479. See id.
480. See id.; Reporter's Transcript of Proceedings, Feb. 24, 1995, at 4029, United States v. Thomas (N.D.N.Y. 1995) (No. 94-Cr-181) ("When I make a decision to send someone to prison . . . I want to know that it's clear in my mind beyond a reasonable doubt.") (quoting Juror No. 5).
481. The trial judge concluded that Juror No. 5 refused to convict based on "'preconceived, fixed, cultural, economic, [or] social . . . reasons that are totally improper and impermissible.'" Thomas, 116 F.3d at 612 (quoting trial judge).
482. The jury found Grady, Ramse, Tracey, and Terrence Thomas guilty on all counts, Jason Thomas guilty on three of the four counts against him, and Carrie and Loray Thomas each guilty on a conspiracy count. The jury deadlocked on the fourth count against Jason Thomas and acquitted Carrie and Loray Thomas of possession with intent to distribute a controlled substance. Stephon Russell was acquitted on the only count with which he was charged, and therefore, was not part of this appeal. See id. Terrence Thomas and Carrie Thomas did not appeal their convictions. See id. at 609 n.3.
483. See id. at 617-18.
484. See id. at 618 ("Once a jury retires to the deliberation room, the presiding judge's duty to dismiss jurors for misconduct comes into conflict with a duty that is equally, if not more, important - safe-guarding the secrecy of jury deliberations.").
485. Id. at 616.
486. See id. at 621 ("[T]o determine whether a juror is bent on defiant disregard of the applicable law, the court would generally need to intrude into the juror's thought processes. Such an investigation must be subject to strict limitations.").
487. See id. at 622 ("Given the necessary limitations on a court's investigatory authority in cases involving a juror's alleged refusal to follow the law, a lower evidentiary standard could lead to the removal of jurors on the basis of their view of the sufficiency of the prosecution's evidence.").
488. An example of this, at least as described by the juror's lawyer Paul Grant, is the case of Laura J. Kriho, a juror in a drug trial. She claimed she was never asked directly during voir dire, and therefore never disclosed, that she had been charged with possession of LSD and had received a deferred judgment and that she believed in jury nullification. Once selected to serve, she did research on the Internet to learn about the penalty in the case. As a result of these actions, she was charged with perjury. Although the drug trial had ended in a hung jury, with Ms. Kriho voting for acquittal, she was later tried before a judge on the perjury charges. One cynical view of this case is that if Ms. Kriho had voted to convict, her transgressions during voir dire and deliberations would have been overlooked. See Harvey A. Silverglate, The Perils of Being a Juror With a Conscience, NAT'L L.J., Dec. 23, 1996, at A17.
489. See Bushel's Case, 124 Eng. Rep. 1006, 1009 (C.P. 1670) (holding that jurors may not be fined or imprisoned for their verdict). This case arose when Quakers William Penn and William Mead were charged with the common-law crimes of unlawful assembly and disturbance of the peace while addressing a large crowd outside the Friends' Meeting House on Gracechurch Street on August 14, 1670. See GREEN, supra note 178, at 222. Penn and Mead admitted that they had been preaching and praying but denied that any law of England made it a crime for people to assemble to worship God. Penn urged the jury, "who are my judges," to go behind the indictment and decide what the common law meant by unlawful assembly and disturbance of the peace. Id. at 224 (citation omitted). Initially, the jury found Penn "guilty of speaking in Gracechurch Street," id. at 225, but the court sent the jury back for further deliberations. It returned after finding Penn guilty of "speaking or preaching to an assembly," and finding Mead not guilty. Id. The court ordered the jury "'locked up, without meat, drink, fire, and tobacco'" and said to the jurors: "'[W]e will have a verdict by the help of God, or you shall starve for it.'" Scheflin, supra note 36, at 170 (quoting Penn & Meads' Case, 6 Howell's 951, 963 (1670)). Eventually, the jury rendered a verdict of not guilty for both Penn and Mead. The court accepted the verdict, but fined the jury for rendering a verdict contrary to the evidence and instructions.
490. See Bushel's Case, 124 Eng. Rep. 1006, 1009 (C.P. 1670) (holding that jurors may not be fined or imprisoned for their verdict). This case arose when Quakers William Penn and William Mead were charged with the common-law crimes of unlawful assembly and disturbance of the peace while addressing a large crowd outside the Friends' Meeting House on Gracechurch Street on August 14, 1670. See GREEN, supra note 178, at 222. Penn and Mead admitted that they had been preaching and praying but denied that any law of England made it a crime for people to assemble to worship God. Penn urged the jury, "who are my judges," to go behind the indictment and decide what the common law meant by unlawful assembly and disturbance of the peace. Id. at 224 (citation omitted). Initially, the jury found Penn "guilty of speaking in Gracechurch Street," id. at 225, but the court sent the jury back for further deliberations. It returned after finding Penn guilty of "speaking or preaching to an assembly," and finding Mead not guilty. Id. The court ordered the jury "'locked up, without meat, drink, fire, and tobacco'" and said to the jurors: "'[W]e will have a verdict by the help of God, or you shall starve for it.'" Scheflin, supra note 36, at 170 (quoting Penn & Meads' Case, 6 Howell's 951, 963 (1670)). Eventually, the jury rendered a verdict of not guilty for both Penn and Mead. The court accepted the verdict, but fined the jury for rendering a verdict contrary to the evidence and instructions.
491. See GREEN, supra note 178, at 225. Rather than pay his fine, juror Edward Bushel went to prison and filed a habeas petition challenging his confinement. In the landmark decision of Bushel's Case, the Court of Common Pleas, in an opinion authored by Chief Justice Vaughan, ruled that jurors may never be fined or imprisoned for their verdicts, save for ministerial offenses, such as bribes. See 124 Eng. Rep. at 1013. Although this case did not officially recognize the right of juries to decide questions of law, it did establish that juries could not be punished for acquitting a defendant, thus establishing the power of the criminal jury to nullify.
492. This type of decision is similar to Batson v. Kentucky, 476 U.S. 79 (1986), in which the trial judge must decide whether the reason given by the attorney attempting to exercise his or her peremptory challenge is based on an impermissible characteristic like race. The reasons given by attorneys to justify their peremptories are typically accepted by trial judges, and they no longer need to be relevant to the case, see Purkett v. Elem, 514 U.S. 765 (1995) (per curiam) (holding that the reason given for exercising a peremptory need not be relevant to the case). Appellate courts typically defer to trial judges' decisions of this kind because they have only the cold record before them, whereas trial judges have the advantage of an attorney's demeanor to help them decide whether the attorney's reason was pretextual.
493. See Thomas, 116 F.3d at 622 (applying a high evidentiary standard set forth in this opinion to "any case where the juror allegedly refuses to follow the law - whether the juror himself requests to be discharged from duty or, as in the instant case, fellow jurors raise allegations of this form of misconduct").
494. See supra notes 307, 310-12.
495. See, e.g., Bruce Fein, A Commentary: Curbing Verdicts That Defy the Law, WASH. TIMES, May 28, 1997, at A12 (describing the Thomas opinion as "logically and intellectually messy"); Paul Grant, Nullified Jurors = Nullified Justice, NAT'L L.J., June 23, 1997, at A15 (describing the Thomas decision as "[f]ollowing an ever-increasing hostility of courts toward the doctrine of jury nullification"); Otto G. Obermaier, Second Circuit Court of Appeals Tries To Nullify Jury Nullification, N.Y. L.J., July 7, 1997, at 7 (suggesting that Thomas may eventually lead to the trial judge becoming "the 13th, and most powerful, juror"); Tracey Tully, 5 Family Members Face Second Narcotics Trial, TIMES UNION (Albany), Sept. 30, 1997, at B7 (reporting that lawyers considered Thomas "groundbreaking not because it called for a new trial, but because it reaffirmed a judge's right to dismiss jurors who seek to nullify the law based on their self-styled notions of justice").
496. See, e.g., Bruce Fein, A Commentary: Curbing Verdicts That Defy the Law, WASH. TIMES, May 28, 1997, at A12 (describing the Thomas opinion as "logically and intellectually messy"); Paul Grant, Nullified Jurors = Nullified Justice, NAT'L L.J., June 23, 1997, at A15 (describing the Thomas decision as "[f]ollowing an ever-increasing hostility of courts toward the doctrine of jury nullification"); Otto G. Obermaier, Second Circuit Court of Appeals Tries To Nullify Jury Nullification, N.Y. L.J., July 7, 1997, at 7 (suggesting that Thomas may eventually lead to the trial judge becoming "the 13th, and most powerful, juror"); Tracey Tully, 5 Family Members Face Second Narcotics Trial, TIMES UNION (Albany), Sept. 30, 1997, at B7 (reporting that lawyers considered Thomas "groundbreaking not because it called for a new trial, but because it reaffirmed a judge's right to dismiss jurors who seek to nullify the law based on their self-styled notions of justice").
497. See, e.g., Bruce Fein, A Commentary: Curbing Verdicts That Defy the Law, WASH. TIMES, May 28, 1997, at A12 (describing the Thomas opinion as "logically and intellectually messy"); Paul Grant, Nullified Jurors = Nullified Justice, NAT'L L.J., June 23, 1997, at A15 (describing the Thomas decision as "[f]ollowing an ever-increasing hostility of courts toward the doctrine of jury nullification"); Otto G. Obermaier, Second Circuit Court of Appeals Tries To Nullify Jury Nullification, N.Y. L.J., July 7, 1997, at 7 (suggesting that Thomas may eventually lead to the trial judge becoming "the 13th, and most powerful, juror"); Tracey Tully, 5 Family Members Face Second Narcotics Trial, TIMES UNION (Albany), Sept. 30, 1997, at B7 (reporting that lawyers considered Thomas "groundbreaking not because it called for a new trial, but because it reaffirmed a judge's right to dismiss jurors who seek to nullify the law based on their self-styled notions of justice").
498. See, e.g., Bruce Fein, A Commentary: Curbing Verdicts That Defy the Law, WASH. TIMES, May 28, 1997, at A12 (describing the Thomas opinion as "logically and intellectually messy"); Paul Grant, Nullified Jurors = Nullified Justice, NAT'L L.J., June 23, 1997, at A15 (describing the Thomas decision as "[f]ollowing an ever-increasing hostility of courts toward the doctrine of jury nullification"); Otto G. Obermaier, Second Circuit Court of Appeals Tries To Nullify Jury Nullification, N.Y. L.J., July 7, 1997, at 7 (suggesting that Thomas may eventually lead to the trial judge becoming "the 13th, and most powerful, juror"); Tracey Tully, 5 Family Members Face Second Narcotics Trial, TIMES UNION (Albany), Sept. 30, 1997, at B7 (reporting that lawyers considered Thomas "groundbreaking not because it called for a new trial, but because it reaffirmed a judge's right to dismiss jurors who seek to nullify the law based on their self-styled notions of justice").
499. The Sixth Amendment requires in relevant part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ." U.S. CONST. amend. VI.
500. Admittedly, there is some precedent for this in that jurors who are opposed to the death penalty can be excluded from the jury in a capital case. See Witherspoon v. Illinois, 391 U.S. 510, 523 (1968) (excluding for cause jurors who would "automatically vote against the imposition of capital punishment" or whose "attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt"). Thus, the Supreme Court has said that an impartial jury can exclude those with a particular point of view. However, in the capital context, jurors with such fixed views are removed during the voir dire, whereas in this case, a juror who was judged impartial during voir dire is removed during deliberations.
501. See Andrew D. Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253, 312-24 (1996).
502. See id. at 296-311.
503. See id. at 312 ("Eliminating all vestiges of the jury's nullification power is probably impossible, and is certainly undesirable.").
504. See id. at 313.
505. See id. at 312-13 ("To prevent the jury from being distracted, the trial judge requires the defendant to present some threshold showing of the affirmative defense [of nullification] before the court will allow argument on the issue or instruct on its elements.").
506. See id. at 318 ("Most significantly, if the government believed that an acquittal was influenced by a trial error, it could appeal."). Leipold agrees that his suggestion runs counter to the Double Jeopardy Clause, see id. at 267-68, and a line of Supreme Court cases protecting it. See id. at 318 ("The idea of government appeals is radical (and flies in the face of many Supreme Court opinions) . . . .").
507. See id. at 321 ("If a judge thought that the jury would be tempted to stray beyond the boundaries of the law, she could require the panel to specify the grounds for its decision.").
508. See id. at 324 (conceding that "the proposed changes would undeniably favor the prosecution").
509. Id. at 259.
510. This rule provides in relevant part: If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party . . . . FED. R. CIV. P. 50 (a)(1).
511. Leipold, supra note 343, at 319; see id. ("Logic also suggests that a trial judge should be able to overturn an acquittal and enter a judgment of conviction; such a ruling should not interfere with the Sixth Amendment any more than judgments as a matter of law violate the Seventh Amendment."); id. at 266 ("Surely accurate and rational decisions are at least as important in criminal cases as in civil proceedings, and thus logic suggests that judges should have the same power to prevent unreasonable verdicts.") (footnote omitted).
512. See id. at 320.
513. See supra text accompanying notes 259-84.
514. See supra notes 288-89 (describing FIJA's legislative efforts).
515. 1 CALIFORNIA JURY INSTRUCTIONS, CRIMINAL (CALJIC), no. 1.00, at 4-5 (1988).
516. Howe, supra note 154, at 605 (quoting 2 LIFE AND WORKS OF JOHN ADAMS 253-55 (C.F. Adams ed., 1856)). Admittedly, John Adams was writing at a time when only men could serve as jurors, and thus, I have taken the liberty of updating his language to include both men and women. I have also taken the liberty of suggesting an abridged version of John Adams's instruction. The full instruction, which I provide here, goes further than even a process view of nullification and the jury: "It is not only [a juror's] right, but his duty . . . to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court." Id.
517. A second step would entail similar revision of the juror's oath. For an example of a typical oath used today, see supra note 300.