Fictions, Fault, and Forgiveness: Jury Nullification in a New Context

Recently, critics of the Anglo-American jury system have complained that juries in criminal trials have been ignoring the law, in favor of defendants who claim that they lack criminal responsibility because they are afflicted by the various victimization syndromes now popularized in the mass media. In this Article, Professors Dorfman and Iijima counter this characterization of the “runaway” jury and argue that juries are not ignoring the law, but rather, are exercising a primary power of the jury, to nullify the application of the law when such application to a particular defendant is unjust. The Authors trace the development of the jury nullification power from its beginnings in the late seventeenth century to the present. The Authors then counter the standard arguments against jury nullification. Finally, the Authors propose an explicit jury nullification instruction and accommodating adjustments to other trial procedures that would solve the deficiencies of the current manner in which juries exercise their nullification power.