Wednesday, October 21, 2015

LD Nov/Dec 2015 - Jury Nullification - Negative Position

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

Neg Position

The negative side of this debate seems to be a straight forward reversal of the wording of the resolution. In other words, jury nullification ought to not be used in the face of perceived injustice. So, if Affirmative claims any benefits from permitting jury nullification, the negative strategy is simple.  Turn the benefits by showing how they are not benefits and show how jury nullification results in harms which outweigh the benefits which can not be turned.  This is straight forward debate and the way many resolutions should be argued. The most obvious approaches to the Negative will focus upon the illegality of nullification as upheld in many courts and the potential for abuse in that nullification has been used many times to acquit some, who without question, should have been convicted or to punish individuals far in excess of what the evidence and law would permit (particularly in civil cases).  For this analysis, I have chosen to take a little less conventional approach and spend some time looking into the psychology of perception and how the jury system can be undermined by its instinct to uphold justice one way or the other.

Perception as a Standard

In my opinion, one of the biggest issues the Affirmative must deal with is the question of perception of injustice.  There is a demonstrated link between the emotional state of the jury and trial outcomes. The emotion of anger, for example, can evoke a certain manipulated outcome.

Peter-Hagene 2013:
Smith and Ellsworth (1985) found that emotions are associated with appraisals of the environment – in other words, thoughts that interpret the emotion in light of the immediate situation and help us deal with the situation. Some of the cognitive appraisals associated with anger are certainty, tendency to blame others, desire to punish, and desire to correct a perceived injustice (Lerner & Tiedens, 2006; Smith & Ellsworth, 1985). Because anger is associated with certainty appraisals, it tends to reduce depth of processing (Tiedens & Linton, 2001), perhaps because certainty serves as an internal cue that one’s judgment is already accurate and decreases motivation to process information systematically (Tiedens & Linton, 2001). Lerner and colleagues (1998) found that angry participants relied on fewer informational cues (i.e., how much free will the target had) in making their judgments compared to non-angry participants. Further, angry (versus not angry) participants are more likely to rely on heuristics such as racial stereotypes or other readily available information (Bodenhausen, Sheppard, and Kramer, 1994). In addition, attitudes are more likely to influence verdicts when information processing capacity is low (Giner-Sorolla et al.,2002).[11-12]

And...juries can be and oft-times are manipulated by prosecutors and defense attorneys.

The goal when developing your trial themes and arguments is to make the jurors feel that a result contrary to the one you advocate in some fashion is threatening to them, and hence, fundamentally unjust from their perspective....The challenge is to make the jury feel that if your opponent prevails against you, somehow that will translate to an increased risk that the jurors will somehow, someway, suffer a similar fate....This isn’t always easy, but it is probably more important than all the document review, depositions, legal analysis and other aspects of trial preparation combined. With a sense of injustice guiding its decision-making process, juries will arrive at conclusions that will leave those who ignore the realities of the human psyche wondering as they walk out of the courtroom, heads down, “How in the heck did the jury come up with that verdict?” This is what “jury nullification” is all about. Juries will figure out a way to avoid injustice, even if that means ignoring the facts and the law or at least distorting them to the extent they would lead to an unjust result if followed...As you get used to giving less attention to proving (or arguing) what is just, in favor of concentrating on arousing a sense of injustice, the initially subtle distinction between the two concepts will become more and more clear, and more important your ability to convey that sense of injustice will start to come naturally.[ellipses added for brevity]
The very nature of the proceeding of the trial; jury selection, instructions to the jury, rulings of evidence admissibility all have subtle but measurable impacts on the decision calculus of juries. These influences alter perceptions which affect trial outcomes.

Peter-Hagene 2013:
Nullification instructions seem to have a direct effect on verdicts by priming jurors to be more lenient. After all, the instructions are meant to allow jurors a not guilty verdict even though the law demands otherwise; they are not meant to do the opposite, and allow jurors to vote guilty despite a lack of evidence. Nullification instructions, however, can also lead to harsher verdicts when the crime is perceived as severe (Horowitz, 1985),[32]

The power of nullification can also result in other injustices.

Bellin 2010:
Significantly, if the jury acquits because it believes the consequences of conviction to be excessive, its verdict will be just as final as a verdict based on the weakness of the government’s evidence. Under the Federal Constitution, an acquittal, even if “based upon an egregiously erroneous foundation,” cannot be disturbed.[2236]

In the footnote of this comment, Bellin explains how this power disrupts the justice system and ultimately creates additional injustice.

Bellin 2010:
It is important to recognize that jury nullification is an imperfect mechanism for dispensing justice. In fact, nullification in the face of severe prison sentences can create a windfall for undeserving defendants. For example, two offenders arrested for an identical burglary may face vastly divergent punishments based on their criminal records. It is a clumsy system that, upon allowing a jury to find out that an unrepentant recidivist is facing life in prison, releases the recidivist (through jury nullification), but punishes the first-time offender. Thus, in many ways, statutory reforms of sentencing provisions are a more desirable mechanism for tempering injustice occasioned by those laws.[2236 note 40ff]

Injustice as a Standard

Juries are not questioned after they render their decisions. There is no review, no attempt to reconcile which factors influenced their conclusions, or which perceptions may have shaded their vision.  In fact, quite often individuals' opinions and perceptions are influenced by circumstances which may not be directly applicable to the matter at hand The general (or unrelated) perception of injustice affects the outcomes of even legitimate, fair legal proceedings unrelated to the matter under consideration. For example, if the citizens of a community feels the government is being unjust in certain issues,it fosters a general distrust which carries over into other proceedings in which, ordinarily, the citizens would probably not nullify.

Bowers & Robinson 2012:
Even a credible and just government may commit some salient misstep, and such a blunder may trigger a pernicious spillover effect that leads citizens to misperceive as unfair or unjust even normatively defensible governmental actions, standards, or rules.[179]  These misperceptions could thereafter lead to a loss of deference—for instance, the nullification of a justifiable prosecution or the violation of a justifiable law.  Some scholars have posited that this is precisely what happened domestically during the Vietnam conflict: frustrations with the government’s foreign policies contributed to the counterculture’s perception that the nation’s drug laws were similarly unjust.

Researchers note that the perception of moral correctness of laws affect general compliance with them. While it may not seem shocking that individuals would be inclined to not comply with a law which violates their intuitions of moral correctness, studies show this non-compliance affect spills-over into broader non-compliance.

Bowers & Robinson 2012:
These studies demonstrate that perceptions of the moral correctness of particular laws can affect compliance with them.  Other studies have gone further to show how perceptions of the immorality of a particular law or of some act of the criminal justice system can lead to more generalized effects on compliance.  One, in particular, is a recent investigation by Janice Nadler that looked at how knowledge of injustices by the criminal justice system can affect intentions to comply with the law.  Nadler found that subjects exposed to cases that they viewed as unjust were more likely in a subsequent mock trial to engage in juror nullification.

All of these reasons bring into question the reliability of a jury's intuition or perception of justice as a standard for deciding the law should in a particular case ought to be nullified.

Reason Enough

I think the average debater can find many additional sources to support the Negative side based solely on the illegality of the act as ruled by the Unites States Supreme Court and its massive potential for abuse.

Crispo et al 1997:
In United States v Dougherty, defendents were convicted of breaking into Dow Chemical offices and destruction of private prperty in protest of Dow's manutacture of napalm used in bombs in Vietnam. They appealed on the basis the jurors where not instructed of the power to nullify the law. In his majority opinion, Judge Harold Leventhal noted that the right of jury nullification, although put forth "in the name of liberty and democracy," is the "ultimate logic of anarchy." s His expressed disavowal of jury nullification went further:
To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable. Toleration of such conduct would not be democratic ... but [would be] inevitably anarchic. [16]

In many cases, nullification is portrayed as a conscience-stricken minority acting in behalf an innocent defendant being "railroaded" by an abusive legal system. But, a rogue jury, acting in disregard of its vows and instructions under the law can itself pervert justice.  We have historical precedence in many cases in which southern white juries acquitted obviously guilty white defendants accused of crimes against black victims as an example.  Most courts view nullification of the law as a step toward anarchy and even in cases where some laws may be totally out of step with social views, nullification is not a legitimate way to promote change in the status-quo.

U.S. District Court 2008:
The notion that nullification will change the law is drivel. Those who would characterize it as a noble form of civil disobedience are deeply delusional. Under the theory of civil disobedience followed by Gandhi and Dr. Martin Luther King, Jr., it is only appropriate to disobey the law if one does so publicly, in an effort to change the law, and then accepts the punishment. As Dr. King explained in his Letter from Birmingham Jail, “In no sense do I advocate evading or defying the law . . . . That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.” An Open Letter from Dr. Martin Luther King, Jr. to Alabama Clergymen (April 16, 1963), available at birmingham.pdf (last visited June 18, 2008). Nullifiers do not openly disobey the law in order to change it. They conspire behind closed doors and cast the law aside at their caprice. This is not civil disobedience; it is anarchy. One who engages in such a practice cannot hope to change the law, but only displace laws altogether. History has not vindicated nullification. To be sure, there have been isolated instances of “benevolent” nullification that “some may regard as tolerable.” United States v. Thomas, F.3d 606, 614 (2d Cir. 1997). Proponents of nullification often cite the acquittal of William Penn in 1670, “John Peter Zenger, the publisher of the New York Weekly Journal [who was] acquitted of criminal libel in 1735, and the nineteenth-century acquittals in prosecutions under the fugitive slave laws.” Id. at 614. But these examples, culled from bygone centuries, are exceptions to an otherwise abhorrent strain of lawlessness. By and large, when juries have felt free to apply their own law the result was what Professor Randall Kennedy has described as a “sabotage of justice.” [31-32]

The Negative Values

When considering the value framework of the Neg position, one is drawn to the value of social order upheld by the protection of the rule of law.  The overwhelming message of the judiciary is jury nullification is the literal definition of anarchy, a society without uniform law.  The U.S. government is empowered by laws established by a representative democratic republic. The nullifying jury represents a dissenting element; a rogue minority which attempts to operate as a law unto itself.  It is possible, therefore for Neg to consider the value of democracy upheld by equal protection under the law.  While the basic definition of democracy is related to the ideal that everyone has an equal voice, the practical implementation of democracy requires those voices to be guaranteed by institutions and laws. In 2011, Anne Applebaum in an op-ed for the Washington Post, understood democracy to be something more than a group of citizens, voicing their opinions in defiance of established norms.

Applebaum 2011:
In New York, [Occupy Wall Street] marchers chanted, “This is what democracy looks like,” but actually, this isn’t what democracy looks like. This is what freedom of speech looks like. Democracy looks a lot more boring. Democracy requires institutions, elections, political parties, rules, laws, a judiciary and many unglamorous, time-consuming activities, none of which are nearly as much fun as camping out in front of St. Paul’s Cathedral or chanting slogans on the Rue Saint-Martin in Paris.

Consistency of voice is essential to sustaining democratic guarantees of fairness and equality.

Delaune 2013:
The concern that nullification undermines equal protection has some bite, given that defendants accused of the same crime in circumstances where the evidence of guilt is equally clear might obtain differing verdicts depending upon the attitudes of their respective juries toward themselves, their prosecutors, and the crime charged. But at the end of the day, unless all instances of any given crime will be both detected and prosecuted according to the same terms, and tried before the same judge or jury, who will rule upon them consistently despite human fallibility, there is and can be no such equal protection at criminal law.


Jury nullification is a power which on-face appears to be a justifiable exercise of separation of powers, reflected in the oft-repeated notion the Founders have granted to the citizenry the power to check an abusive government.  Permitting such power to a small group of individuals risks the potential for minority rule supplanting the will of the majority and leads to unequal application of the law at best and social disorder at worst.  The U.S. has a system for change within the representative political system and indeed there are many examples of how small movements have grown into a force for effective and worthy change.  The harms inherent in nullification of the law are lightly dismissed by proponents as a small price to pay for the greater good of checking judicial abuse. But nullification is very infrequently used and when it is used, it does not usually represent a consistent expression of public opinion.  Jury nullification is an unfortunate consequence of the American government's attempts to constitutionally protect the rights of the accused. Whereas, clauses such as the right to a trial by jury, and prohibition against double-jeopardy are explicitly granted, nullification is not. We can conclude despite its application in the early periods of U.S. history, jury nullification was never foreseen as essential to American jurisprudence.


Applebaum, A. (2011), What the Occupy protests tell us about the limits of democracy, Washington Post, accessed 10/18/2016 at:


Bowers, J. & Robinson, PH, (2012), Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility, Wake FOrest Law Review, Sep.5, 2012, accessed 10/15/2015 at:

Crispo LW, Slansky JM, Yriarte GM (1997), Jury Nullification: Law Versus Anarchy. Loyola of Los Angeles Law Review, Vol. 31:1, 11-1-1997, accessed 10/10/2015 at:

Delaune, Timothy A., "Democratizing the Criminal: Jury Nullification as Exercise of Sovereign Discretion over the Friend-Enemy Distinction" (2013). Dissertations. Paper 787. Accessed 10/10/2015 at:

Mazzarrella, MC (undated), TIPS FROM THE TRENCHES: Creating the Sense of Injustice, Noteworthy Articles, Law of Office of Janice Deaton, accessed 10/19/2015 at:

Peter-Hagene, CL, (2013) Nullification Instructions and Anger Increase Jurors’ Reliance on Attitudes in Verdict Decisions, Thesis, University of Chicago, accessed 10/15/2015 at:

US District Court, Massachusetts, United States v Robert C. Luisi, 2008, decision accessed at:


  1. Do you have a source for your "literal definition of anarchy?"

    1. It is not a direct quotation or I would have cited it. It is an inference made from multiple sources in particular U.S. District Court 2008 which says "[Jury nullification] is not civil disobedience; it is anarchy."

  2. im a novice ld debater so this may be a stupid question, but is injustice the value?( again I'm sorry if this is completely obvious but i have such a hard time with values and criterions)

    1. I don't think anyone would value injustice. However, everyone values justice, and so the resolution kind of gives the idea, jury nullification may be a way to stop injustice and give a "just" outcome. You can find help with values here.

  3. My value is justice, so what would you suggest to be a good criterion. Furthermore, what are some good examples/arguments to include in my contentions? (I'd like a broad answer on that one please, not specific examples, just a brief overview of what to include) Thanks !

  4. Do you define the key terms to this debate? Sorry I'm new to LD debate so I'm not sure what I'm doing yet.

    1. If by that question, you mean, "do you define key terms while presenting a case", yes, *see here*. If you mean, have I done so as part of this topic analysis, yes, click the link at the top which says, "For the start of this analysis, begin here."

  5. My value is justice, so what would you suggest to be a good criterion. Furthermore, what are some good examples/arguments to include in my contentions? (I'd like a broad answer on that one please, not specific examples, just a brief overview of what to include) Thanks !


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