In one of the few existing recordings of American juries deliberating in an actual criminal case, Wisconsin v. Reed, we observe jurors struggling with how they should apply a statute in a case in which the facts are not in real dispute. The defendant is charged with felon in possession of a gun, and all agree that he has a felony record and owned a pistol until he turned it over to the police upon their request. The statute contains three elements. The defendant must (a) have a felony conviction, (b) have possessed a gun, and (c) have known that he possessed the gun. Despite the apparent simplicity of the case, the jurors deliberate for two hours and acquit. Their deliberations include some intriguing, and perhaps worrisome, statements. "I think we have more capabilities than to say, one-two-three, these are met on a very simple level. I don't think, as jurors, that is necessarily our role," says one juror. "Is he a threat to society? - And if we decide he's guilty, is that just?" another asks. "What about sending a message? I'm thinking of a message I'd like to send to the DA's office." In the latter part of the discussion, jurors struggle to interpret this simple statute. "I'm having trouble with that word 'gun,' but I'm really having trouble with this word 'to know,'" says one. "Perhaps he didn't, in the full sense of the word, know he possessed a firearm," suggests another. The Reed jury's acquittal is often described as nullification. Yet the deliberation reveals jurors engaged in an extended, thoughtful, and - I will argue - necessary effort of statute application. Seen as a project of statutory interpretation, the deliberation raises the interesting issue of whether jurors interpret statutes in a manner that at all resembles the well-studied strategies of judicial statutory interpretation. The considerations that these jurors raise, it turns out, mimic concerns familiar from judges' construction of statutes. If jurors are sometimes led into complex interpretive debates, what prompts this? Many would probably respond that untrained, undisciplined jurors are inclined to exceed the mandate that limits them to "applying the law" to the facts they find. Yet we already know from the voluminous literature of statutory interpretation and from earlier, legal-realist insights that "application" can be a complicated, value-laden, and ambiguous task rather than a rote, mechanical one.
Darryl K. Brown,
Plain Meaning, Practical Reason, and Cuplability: Toward a Theory of Jury Interpretation of Criminal Statutes,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol96/iss5/3