Juries on Trial

Walter Olson from the February 1995 issue

(Page 3 of 3)

In another, an accident victim cashes in for a small fortune although "any objective look" would have found his case factually defective. Another injury claimant with a stronger but still shaky case obtains a record damage award, which later juror interviews reveal to be flagrantly unconnected to the legal rules that are supposed to govern such calculations. ("We were flying by the seat of our pants," one juror says. "It was ridiculous to determine damages without any guidelines...we had no clue.")

Adler describes a numbingly complex antitrust suit between two cigarette companies that lasts seven months and eats up a collective five years of jurors' lives but ends in an "illogical" verdict after they are "given next to no help in their effort to decide the case sensibly." Later they freely admit that central concepts in the case remained mysteries to them; one juror had regularly nodded off during the arguments, while another "daydreamed about home or rated the witnesses and lawyers on their looks and demeanor."

Such examples might seem to bear out some observers' worst fear (and others' hope) about the jury system, that it represents what Abramson calls "the rule of emotion over reason, prejudice over principle, whim over written law." Not all of Adler's material need be seen in precisely that light, however. At least in the case of the two acquittals, those of Imelda Marcos and the cop in the love triangle, jurors may simply have decided that the law as written was too harsh, and decided to suspend it. The right to engage in such "nullification," as Abramson shows, had respectable historical roots but was largely suppressed over the course of the 19th century--as an explicit matter, at least.

The fact is that juries continue to nullify anyway, instructions or no, since in practice they get the last word on acquittals. Interestingly, Abramson argues for restoring an explicit right of nullification, a position more often associated with Rocky Mountain libertarians than with Eastern academics with civil-rights-movement sympathies. He properly emphasizes that any such right must operate in only one direction, "only to acquit, never to convict," it really being tyrannical to allow the punishment of actions which were lawful when taken.

And he acknowledges that part of the danger of an open nullification power is that racially polarized juries may (even more than they do now) let off wrongdoers who commit crimes in the "right" racial direction. Some other civil rights advocates have opposed nullification for this reason. Two states, incidentally--Maryland and Indiana--have recognized nullification all along; it is hard to see them as representing either a Utopia or a dystopia in criminal law.

The acquit-but-not-convict principle points up a wider truth about juries, and a reason why the case in their (partial) defense can rest on more than Adler's suggested leap of faith. Juries are at their strongest when they act as a curb on government power, protecting defendants from corrupt, fanatical, or simply careless judges or prosecutors. Like other governmental bodies, they pose a danger to liberty when they are tempted to assert affirmative power, as when they extend legal liability into new areas or try to set the level of damages.

In short, they make a useful brake--which is no excuse to turn them into an accelerator.