CRMJ 254 Lecture Notes - Lecture 11: Jury Nullification, Peremptory Challenge, Hung Jury
19 May 2018
School
Department
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Week 11
How to make a prima facie case…?
• According to the Supreme Court, peremptory challenge can be
scrutinized on basis of “all relevant circumstances” including:
o Statistical analysis of jury pool
o Side-by-side comparison of struck and empaneled jurors
o Disparate questioning
o Evidence of historical discrimination
• If successful, burden shifts to opposing counsel to provide neutral
explanation for elimination
• Prosecution and defense each get a limited number of peremptory
challenges, so they must be used wisely
• Defense granted slightly more peremptory challenges than
prosecution… WHY?
o Voir dire is intended to guarantee an impartial jury an
accordance with defendant’s due process rights… so ensuring
that jury is not blatantly anti-defendant is of paramount
importance
Prosecutors might have special concerns regarding jury decision-
making…
“CSI effect”
• Popularity of criminal forensics shows like “CSI” have given the public
unreasonable expectations regarding physical evidence
• Some jurors will refuse to convict without it (despite an otherwise
strong case)
• The reality: Most crimes (even violent ones) will NOT have DNA
evidence left behind!
Jury nullification
• An acquittal or mistrial (because of hung jury) results even though the
evidence presented strongly indicates that the defendant is guilty -some
or all of the jurors REFUSE to convict based on legally irrelevant
factors
• “Prosecutor’s worst nightmare”?
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o At least some jurors are completely disregarding strength of
prosecution’s evidence!
• “Legally irrelevant” factors?
o Have nothing to do with the defendant’s guilt – rather they are
circumstances that might make the defendant’s actions
understandable
Defense might attempt to encourage it by playing on jury’s
emotions… and trying to make the accused as sympathetic as
possible!
• Possible reasons for the jury nullification result:
o Sympathy towards defendant’s actions
o Fondness for defendant (potential issue w/ celebrity defendants!)
o Dislike of victim (“He had it coming!”)
o Opposition to the law in question (For example: Juror is opposed
to criminalization of narcotics, and it’s a drug possession case)
• Prosecutors rarely know for sure if this is the reason behind an
acquittal or mistrial… Although they may suspect it!
o Doesn’t matter – verdict will stand regardless!
Peremptory challenges are controversial!
• Some in the legal community believe they should be eliminated
altogether! WHY?
o Based on hunches and stereotypes, not any overt display of bias!
o How do we REALLY know if a potential juror was not actually
improperly eliminated (i.e., on the basis of race or sex)?
• Once all unsuitable potential jurors are eliminated and the trial
jury is selected… the jury will be seated, and the trial can begin!
Trial Process
1. Selection of jury *
2. Opening statements
3. Presentation of prosecution’s evidence
4. Presentation of defense’s evidence
5. Presentation of rebuttal witnesses
6. Closing arguments
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