The Necessity to Nullify: On the Jury and Entrapment

Abstract

Jury nullification, the power of a jury to issue a not guilty verdict regardless of the evidence, is the paradigmatic open secret of the criminal justice system, deeply embedded in the tradition of the common law on which it was founded and yet perpetually controversial. It is also one of the clearest indicators of the political nature of jury service, a task of citizenship that goes beyond serving as legal functionaries to include engagement on the fundamental question of who deserves to be punished. This article suggests that the jury’s role within entrapment cases has been under-theorized at great disservice to its central task. Through an examination of how the entrapment defense was manifested and responded to in three cases, I argue that such cases, even more so than in other criminal cases, give clarity to precisely what legal judgment by laypeople, who are unconnected to the effort, expense, and ideology of law enforcement, requires. Using nullification as a beacon sheds light on key aspects of the process of judgment including: a heightened sense of the jury’s watchdog function in relation to the state, the limits of legalism in determining punishment, the need for scrutiny around juror’s biases, and the law enforcement standards necessary for maintaining the presumption of innocence of the defendant that the Constitution requires.