Tuesday, October 13, 2015

LD Nov/Dec 2015 - Jury Nullification - Affirmative Position

Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.

Aff Position

The wording of this resolution raises a few questions.  After all, jury nullification already is used in the status quo in the face of perceived injustice. The U.S criminal justice system has documented many examples of its use through the last 240 years in the context of some potential miscarriage of justice.  But, jury nullification is not a constitutional right, nor is it actively encouraged, at least not on the federal level, in 2015/2016. So one may wonder, is the intent of this resolution to suggest it should be legitimized in the form of a law authorizing its use? I don't believe so. The facts as I have seen them is, the power of the jury to nullify the law is discouraged throughout the criminal justice system and while the U.S. courts have never openly punished a jury for exercising the power, it has ruled it illegal. Additionally, there have been steps taken to guard against its use, including not informing jurors of the power, and removal of jurors who promote nullification.  For this reason, I think it is correct to view the resolution as a call to continue to permit the practice as a valuable and legitimate response to 'perceived injustice'.  Is it possible the government would actually abuse its citizens?  It is possible in 21st century U.S.A. the laws and their associated penalties could be used by courts to unfairly target certain individuals or groups for unfair or improper treatment? Nah, now go back to sleep and let the older kids debate this topic.

The Founders Supported Nullification

Students of jury nullification will no doubt read of the famous Bushnell's case in which William Penn (founder of Pennsylvania) and William Mead were tried for illegally discussing a religion other than the Church of England. The jury refused to convict despite the preponderance of the evidence. The judge incarcerated the jurors for contempt but a Judge Vaughan released them as he believed it was improper to punish a jury for rendering a decision the court did not agree with.

According to many scholars, the majority of Founding Fathers were in agreement with Judge Vaughan.11 Approval of the jury’s right to nullify is found in “the writings of some of the most eminent American lawyers of the age – Jefferson, Adams, Wilson, Iredell, and Kent, to mention just a few.” Thus, it was not only Anti-Federalists who sought to use the jury as a check against the government, but also well-established Federalists, including even the first Chief Justice of the Supreme Court, John Jay.[412-413]

Certainly any number of activist sources commonly promoting jury nullification will be quick to remind you of a statement from U.S.A.'s first Justice, John Jay, "The jury has a right to judge both the law as well as the fact in controversy." and the sentiment repeated by Justice Oliver Wendell Holmes in 1902, "The jury has the power to bring a verdict in the teeth of both law and fact." These kinds of expressions convey the fact it was commonly believed the role of the jury was to not only discover the facts of the case (evidence, testimony, analysis) but also to render a verdict on the applicable law. 

Carroll 2012:
This vision of jurors and their ole as political actors is present in the Founders’ discussion of the Constitution and the role of the law in postRevol utionary America. They conceived of the jury as the space where the law met the governed and, in so doing, became whole. To the men writing and contemplating the ratification of the Constitution, the jury was a forum where justice emerged because citizens could decide the meaning of the law (as opposed to having the meaning dictated to them by a judge or some other formalized body such as a legislative or executive branch). In this vision, the law was not a static text but a moving one that depended on citizen interpretation, debate, and even dissention in order to survive. It was a true common law. The ordinary man knew it and gave it meaning through his interaction with it, the application of his own moral values upon it, and his acceptance of it. Encompassed in this vision was a right of nullification [670-672]

As Carroll deftly points out in her essay, "The right to a jury is the only right present in both the body of the Constitution and the Bill of Rights." [Carroll:673] and it was would have been in keeping with their revolutionary spirit to establish a citizen body to check the power of an overreaching authority which leads us to the next contention.

The Jury as Bulwark Against Tyranny

In the case of Duncan v Louisiana (1968), a black youth charged with assault of a white teenager was denied his request for a jury trial.  This, denial was eventually appealed to the U.S. Supreme Court where Justice Byron White very clearly explains the purpose of the jury.

Justice White (via Clarke) 1968:
A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. 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. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.  The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.

It should not be surprising the devices utilized to limit the oppression of tyrants in the U.S. finds its roots in the mindsets of the Founding Fathers and in the idealism birthed in the American revolution. Tyranny raises it's head in many places, from the obvious power-grabbing dictator to the subtle but equally oppressive tyranny of a dominate ideology or culture, to an oppressive, rigid justice system.

Ayres 2008:
The importance of the right to a trial by jury in civil cases was also eloquently defended by the late Chief Justice of the United States William Rehnquist when he stated, “The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.”  Indeed, it is fair to say that the “tyranny” from which American and Texas citizens sought constitutional protection was, at least in part, from the judiciary itself. [341]

Nullification Enhances Law

No doubt since the early days of the nations foundation, the system of laws and jurisprudence has matured and strengthened through a natural process of judicial review and public opinion.  In many ways today's system of law is a highly formalized and rigid structure designed to withstand challenges and judicial scrutiny while providing for some discretion by adjudicators in deciding the fate of a guilty defendant. The criticism of law lies in its perceived lack of discretion with respect to individual circumstances or community standards which may justify a different interpretation of fairness or justice. This would require a system that is less formal and more functional.

Carroll 2012:
Alternatively, one can reconstruct the theory of the rule of law around notions of functionalism, as opposed to formalism. In this construction, the rule of law expands to encompass competing visions and legal interpretations. The definition of what is law is shifted from the static text alone to the enforcement and endorsement of that text within the community. This reconceptualization of the rule of law strikes a compromise between what one might call the “rule of text,” which can be static and overly rigid, and the “rule of man” (at the other end of the theoretical spectrum), which can be too unstable and left to every individual to decide. This happy medium recognizes that the law must and will be interpreted in order to achieve larger goals of justice and equity. Sometimes this process of interpretation will confound the text of the law, requiring its modification or even abandonment. But without such a process, the law will lack genuine meaning. [693-694]

Thus we see the jury as an active component of the law, giving it a human face and enhancing its ability to be effective in accordance with community standards. The law, at the right time and under certain conditions, exhibits a needed flexibility through the use of jury nullification.

Brown 1997:
In Dworkin's view, general principles provide a stable source of guidance to decide both individual cases for which no rule is directly on point, and cases in which seemingly literal rule application would yield a result widely considered unjust.  
If people accept that they are governed not only by explicit rules laid down in past political decisions but by whatever other standards flow from the principles these decisions assume, then the set of recognized public standards can expand and contract organically, as people become more sophisticated in sensing and exploring what these principles require in new circumstances, without the need for detailed legislation or adjudication on each possible point of conflict. 
Citizens, then, must discern and act upon the moral principles implicit in prior decisions in addition to explicit rules from courts and legislatures. "Rights and responsibilities flow from past decisions and so count as legal not just when they are explicit in these decisions but also when they follow from the principles of personal and political morality the explicit decisions presuppose by way of justification." If we assume that laws are justified and made coherent only by the assumption of underlying principle, we can "treat... internally compromised statutes... as unprincipled, and we then have a reason for arguing that no official should contribute to his state's unprincipled acts." Dworkin's approach to law as "integrity" requires that "each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimension of any explicit political decisions. Integrity therefore fuses citizens' moral and political lives: it asks the good  citizen.., to interpret the common scheme of justice ..... [1163-1164 Ellipses appear in original text]

The Inherent Value of Justice

In consideration of the fact this is Lincoln Douglas debate I would be remiss if I did not move beyond the contention level debate and look to the values inherent in the Affirmative position. The most prominent value which stands out and the one I think most novice debates can fashion convincing arguments is justice. We can accept the widely used (though over-simplified) Aristotelian interpretation of justice as "giving each her due".  This brings to mind the concept of "just deserts" which is ingrained into the practice of retribution in the criminal justice system.  It is the jury which assumes the role of the last check between the accused and her loss of property, liberty or life.

Hoffman 2014:
When I use the phrase, “the moral jury,” I mean to evoke a sense that the jury must play, and as an historical matter has always played, a critical role not only in deciding factual guilt but also in deciding moral guilt—that is, gauging, in some fashion, the seriousness of the crime and the justness of the desert. In its most dramatic form, the jury might actually impose the specific sentence. In less dramatic forms, it might issue an advisory sentence, make findings that allow the judge to aggravate the sentence, distinguish between levels of culpability, or even nullify. But in any retribution-based system that is not completely determinate, the jury, which represents a microcosm of social response that single judges never can, must continue to have some voice in expressing the moral judgment inherent in any criminal sentence.  [455-456]

The view of the law as a highly formalized, immutable force will be carried in the Negative contentions if indeed they debate "rule of law" and is implicit in the Affirmative contentions which reinforces the need for a rational mind or minds to evaluate all of the nuances of a situation which justifies nullification. The Affirmative position is one of putting a human face and hope of rationality on the cold metal of institutionalized justice. A pragmatic analysis by the young debater will do well.

The Consequentialist Framework

Finally I wish to close this discussion of the Affirmative position with a discussion of the consequentialist framework. In the ideal sense, jury nullification is viewed as a power for protection of the natural rights. The U.S. criminal justice system is based upon the presumption of innocence and burdens the government or plaintiff with proving their case "beyond a reasonable doubt".  The standard is high because the worst possible outcome arises when an innocent person is deprived of her natural rights. Studies suggest society views good outcomes less favorably if the procedures by which they are attained were unfair. Nevertheless, a bad outcome in the context of criminal justice is a violation of the protection of the innocent which is seen as expression of the social contract. Thus we hold to an ends-based principle of justice. Even under such a framework, the procedure which flies in the face of the rule of law and may be perceived as improper is jury nullification of the law.  But acceptance of the Affirmative case imbues legitimacy to the procedure and thus imparts a sense of fairness upon the procedure which resulted in good outcomes.


Ayres, RJ, Jr. (2008), JUDICIAL NULLIFICATION OF THE RIGHT TO TRIAL BY JURY BY “EVOLVING” STANDARDS OF APPELLATE REVIEW, Baylor Law Review, accessed 10/11/2015 at: http://www.baylor.edu/content/services/document.php/119761.PDF

Brown, DL (1997), Jury Nullification Within the Rule of Law, 81 Minn. L. Rev. 1149 1996-1997, accessed 10/11/2015 at: http://www.law.virginia.edu/pdf/faculty/hein/brown/81minn_l_rev1149_1997.pdf

Carroll, JE (2012), The Jury's Second OCming, Georgetown Law Journal, Vol 100:657], accessed 10/10/2015 at: http://georgetownlawjournal.org/files/2012/03/Carroll.pdf

Clarke, C (1968), Transcription of Mr. Justice White, Opinion of the Court, accessed 10/11/2015 at: http://genius.com/The-supreme-court-of-the-united-states-duncan-v-louisiana-annotated

Duvall, KJ. 2012. The Contradictory Stance on Jury Nullification, North dakota law Review, Vol. 88, accessed 10/10/2015 at: https://law.und.edu/_files/docs/ndlr/pdf/issues/88/2/88ndlr409.pdf

Hoffman, MB (2014), Booker, Pragmaticism and the Moral Jury, George mason Law Review, Vol. 13:3, accessed 10/11/2105 at: http://www.georgemasonlawreview.org/wp-content/uploads/2014/03/13-3_Hoffman.pdf

Huemer, M The Duty to Disregard the Law,” University of California, San Diego, 5/25/2012. accessed 10/10/2015 at: http://philpapers.org/archive/HUETDT.pdf


  1. I was planning to use a Justice/Social Contract v/vc pairing, but was wondering which social contract would be the best to use for the affirmative case? I was thinking Locke's, but I'm not sure if he himself would agree with the idea of Jury Nullification. Any tips?

    1. If JN is seen as a kind of rebellion arising from the government's failure to uphold the social contract then Locke's formulation should be acceptable. Neg can turn the social contract if it can prove JN is itself a violation of the social contract.

  2. What is nulification?

  3. We have a debate coming and I am planning on using Rousseau terms of "Social Contract" via Value supported by "Majority Rule" as the Value Criterion.

    I offer the value of “Social Contract” by the terms of Rousseau, the government’s sole obligation is to satisfy the general will of the people, by extent, the government does not always necessarily protect the rights of the individual but rather the only true responsibility is to protect the liberty of the many when it is in the best interest to which society supports, thereby upholding the greatest requisite goodwill of the great many e.g. “Utilitarianism.”

    Value Criterion:
    In support of the value “Social Contract” I offer the value criterion of “Majority Rule” because the government itself is run by the people as a whole. As a democracy, the will of the government is the will of the people, including the decisions of the majority in a court of law, not based solely on the presumed competency of an individual judge but rather adding the criteria of a jury where competency will be most prevalent and as a result, relatively preserving the “Freedom” and “Equality” of the people.

    1. Any thoughts? Is this acceptable?

    2. I am not a philosopher but I am a coach and if one of my debaters proposed this framework for the Affirmative I would have concerns. First, there is vagueness in the concept of the General Will. Second util itself has several conceptions (i.e. rule or act based) and makes it possible, perhaps, for Neg to claim under a util framework it may be acceptable to "sacrifice" some for the greater good. Third the majority rule idea is vague in that it is unclear if the majority is confined to the local community (one may presume perhaps, a majority of one's peers?), the state, or the nation. Moreover, tyranny of the majority immediately comes to mind. I would be concerned that better Neg debaters will claim that "majority rule"-based jury nullification increases the potential for minorities to be abused or treated unjustly, first by a tyrannical judiciary and then by a tyrannical jury imposing the so-called general will on minority members of society. Of course it may be you have already anticipated these attacks from Neg and are well-prepared to defend your framework. This is only my opinion based upon the limited info you have provided without knowing your warrants or your skills as a competitor.

  4. what is a good value and value criterion? deontology would not work right?

    1. Personally, I think deon and Kant in particular would be difficult. Most cases I have seen are running justice, which is obvious with any number of criteria like protecting natural rights, preventing tyranny, etc. These are intuitive because the contentions support them. I have also seen human dignity on aff, government legitimacy on both sides of the debate and various incarnations of social contract as criterion on both sides. I have also seen many, many variations on Rawlsian justice where debaters focus on some narrow provisions of his conception of justice and run it as a criterion, although, personally, I think Rawls would have resisted the kind of justice which is a consequence of JN.

  5. what is a good v\vc pair for neg?

    1. Have a look at the Neg Position section called 'The Negative Values'.

  6. What is the best way to run government legitimacy on both sides???

    1. I don't know the best way, but I can tell you how I've seen it. On the Aff very often social contract is applied as a standard (but can be other VCs as well). If the government is about to unjustifiably violate an individual's rights it loses legitimacy and so the jury has a 'right' (under Lockean soc. con.) to rebel from the government. It is also argued that unjust laws de-legitimize the government. On the Neg when the rule of law is upheld, government legitimacy is upheld. See the Crispo et al, '97 evidence which says the law must be consistent in application and not shaded by individual standards.

  7. Do you think justice as a value and situational ethics as a criterion could work for aff?

    1. I am not sure I can properly answer that question. I am not well versed with S.E. other than a cursory knowledge of Fletcher's formulation. It is a broad concept and very much like running utilitarianism. For this reason I think many of the standard arguments against util may apply. If Neg should give examples of how jury nullification resulted in discrimination or unjust consequences, I am not sure how S.E. can respond. This is just my opinion based upon limit knowledge of S.E.

  8. how good is util and how would I run it

  9. This comment has been removed by the author.


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