First, Marder sets out three types of jury nullification.
First, a jury may nullify to avoid applying a law to a particular defendant. Second, a jury may nullify to avoid applying a law that it regards as bad. Third, a jury may nullify as a response to social conditions.Second, Marder distinguishes the two competing views of jurors' responsibility to the law. In the first, which Marder calls the "conventional view,"
...the jury is supposed to find facts and apply the law. In some cases, this might be a mechanical operation; in others, the jury might have to work harder to decipher ambiguous terms. However, in both cases, the jury is supposed to apply the law consistent with the legislature's words and the judge's instructions. To the extent the jury does more than this, it is intruding upon the legislature's or judge's respective roles. This conception of the jury exists more in theory than in practice, but the theory has proven compelling to both judges and some academics, and it is this theory of the jury that judges convey to jurors throughout the trial.Marder goes to great lengths to deconstruct this view, and the way it essentially dehumanizes the participants, ideally making them into fact-finding robots, dispassionate and utterly objective.
What is the alternative? A "process view," which situates the jury alongside the judge as an interpreter of the law.
This view recognizes that the jury does more than find facts or apply the law; inherent in all of the jury's activities is an interpretive role. The jury engages in interpretation whenever it is asked to find facts or apply a legal standard that is vague or ambiguous. In addition to its interpretive role, the jury also plays a political role; it provides feedback to other branches of government about when they are overstepping their own roles.The implications are fairly straightforward. The "conventional view" tracks strongly with the Negative's position that jury nullification is unjust.
Under a conventional view of the jury, the three situations in which nullification can occur are all causes for concern. In each, the jury is usurping the responsibilities of another branch. The conventional account of the jury means that any time the jury does more than find facts or apply law, such as nullify, it is doing something harmful. The myth of the nullifying jury, as told by proponents of the conventional view, is that nullification is always harmful.The "process view," on the other hand, squares with the Affirmative's advocacy.
Under a process view, however, the jury does more than just find facts and apply law; it also plays interpretive and political roles. Under this broader conception of the jury's roles, the three situations when nullification occurs provide more benefits than harms. In all three, though perhaps to a lesser extent in the third, nullification is consistent with the jury's broad role, and nullification enables the jury to provide valuable feedback to the legislature, executive, or judiciary.There's much more that can be said about the merits of Marder's analysis. Luckily for you, the article is available in its entirety online.