Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification after Bushell's Case
Stern, Simon, The Yale Law Journal
Sir John Vaughan's opinion in Bushell's Case (1) constitutes an important milestone in the history of jury nullification in Anglo-American law. In ruling that jurors may not be fined or imprisoned for returning a verdict that conflicts with the judge's assessment of the evidence, Vaughan made a formative contribution to our understanding of the jury' s independence, and his opinion continues to be cited in discussions of this issue. (2) Vaughan did not defend nullification: His opinion nowhere speaks of a juror's right to disregard the law or to find according to "conscience," a term that some contemporary commentators used as a code word for nullification. (3) Insofar as Vaughan addressed the issue at all, he insisted that the jury must follow the judge's directions concerning the law. Nevertheless, Bushell's Case would prove to be a valuable resource for those who did advocate jury nullification. Vaughan relied in part on the observation that reasonable people may disagree about a witness's credibility or the reliability of the evidence; in such cases, he argued, the jurors should form their own views and should not be punished if these views differed from the judge's. Modern defenses of jury nullification that draw on Vaughan's opinion often rely on this strand of his argument. (4) When Bushell's Case was first publicly debated in the early 1680s, however, the journalists and pamphleteers who cited it focused on a different justification. Besides defending the right to form an independent view, Vaughan also reasoned that because jurors were chosen from the vicinage (the locality where the crime occurred), they might have personal knowledge about the facts of the case. As John Langbein has noted, this argument was completely implausible, since the English had abandoned the vicinage requirement for a countywide venire system in the sixteenth century. (5) Nevertheless, Vaughan's latter justification played a crucial role in the process by which Bushell's Case came to stand for the principle that jurors have the right to nullify. By the end of the eighteenth century, the "personal knowledge" claim no longer seemed defensible; however, by that point, largely because of the debates of the 1680s, Bushell's Case had long been viewed as supporting the jury's right to find both law and fact--a right that Vaughan had never defended.
Previous discussions of Bushell's Case have underestimated its impact on the nullification debate. Langbein has argued that the 1670 ruling had little immediate effect, because judges could still comment freely on the facts of a case, terminate the trial at any point prior to the jury's verdict, require the jury to redeliberate, and seek royal pardons for defendants whom the jury convicted against the judge's direction. (6) These options, however, applied only to petit jury trials, not to grand jury proceedings, and it was in this latter context that Bushell's Case would first command public attention. Though Thomas Andrew Green has discussed two of the early responses to Bushell's Case, (7) his discussion does not address their relation to the jury hearings that prompted them, or to the other books, pamphlets, and newspaper editorials that also contributed to the nullification debate. Barbara J. Shapiro has examined a number of the contributions to that debate and has addressed their political motivations, but her account focuses on the debate's role in the history of proof standards in English law. (8)
What has not been sufficiently explored, then, is the process by which Vaughan's defense of jury independence was translated into a defense of jury nullification in the early 1680s. Vaughan's comments on the distinction between fact and law suggest that nullification, though impermissible, is virtually impossible to prevent; however, the rhetorical battle over the meaning of Bushell's Case would turn nullification into a right. …