Jurors as Statutory Interpreters

The standard division of labor at trial is that jurors find facts and judges interpret statutes. But this was not always the standard, and it is still not always so. Until the end of the nineteenth century, it was up to jurors not only to find the facts, but also to determine the law, at least in criminal cases. This task was considered an important part of democratic government in that it created a buffer of twelve citizens who could refuse to convict if a law was considered unduly oppressive.

This history is sometimes discussed as relevant to the practice of some juries to engage in nullification. The practice, however, is far more widespread. Juries are routinely called upon to determine whether a defendant's conduct fits within the fair and ordinary meaning of a statute, which is exactly what appellate judges must determine when deciding cases that involve statutory interpretation. More than two hundred years into the nation's history, the legal system remains ambivalent about just how broad the jury's role should range.