Attention to the trial of Luigi Mangione has renewed debate about nullification—the jury’s inviolate power to acquit a defendant contrary to the evidence presented. Jury nullification proponents hold that it is a mechanism of last resort for refusing to apply laws that conflict with the public conscience. Opponents, by contrast, argue that nullification undermines the law by diminishing its legitimacy. To prosecutors and defense attorneys, however, these arguments are immaterial: Jury nullification is part of the institutional landscape of the contemporary jury trial and thus must be treated as a potentiality—a feature of the agnostic, strategic, and ethical terrain of legal practice. The critical empirical question, largely overlooked by scholars, is how the possibility of jury nullification affects legal practice and whether that effect is desirable.
This Article addresses that issue. It proceeds in three Parts. The first Part reviews the contested place of jury nullification in the legal system. Th e second Part draws on original data collected via participant observation and interviews with federal and state prosecutors and defense attorneys to show that the relative strategic significance of jury nullification depends on the type of case, community demographics, and sociocultural contexts. Among attorneys, perceived nullifi cation risk can prompt sustained and critical reflection on community values at different phases of case preparation, including charging decisions and plea discussions. Contemporary legal practice, I argue, is deeply responsive to the specter of jury nullification.
Building on these findings, the third Part contends that the predominant judicial approach to jury nullification—that is, discouragement with emphasis on the duty to follow the law—reflects its perceived deleterious effects and not its actual effects on legal practice. Th e possibility of nullification imprints the trial in a way that forces legal actors to think about the relationship between laws and local mores—a process that enhances the dynamic and democratic character of our legal system by opening laws themselves to questioning. In the wake of McElrath v. Georgia, a 2024 Supreme Court decision that reaffirmed the finality of not-guilty verdicts, I argue that certain common anti-nullification judicial practices are unconstitutional. As an alternative, courts should develop a standard instruction for every trial that affi rms that the jury’s right to acquit is protected and cannot lead to the sanctioning of the jury. Although jury nullification might loom large as a spectral presence in the contemporary court, it has salutary effects even in this form that should be protected and enhanced.
