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Schopp in Southern California Law Review (1996) 69. Copyright 1996, Southern California Law Review. Used by permission.


Consider three types of atypical criminal defendants. The first trespasses at a nuclear weapons plant (or a segregated bus station or women's health clinic) in order to publicly protest a law or public policy represented by that facility or by the activity that occurs there. The second operates an underground railroad in violation of the Fugitive Slave Act (or smuggles South American residents into the United States or breaks into a women's health clinic in order to disable equipment and prevent scheduled abortions). The third causes the death of a loved one by disconnecting that person from life sustaining medical machinery in order to fulfill a promise to that person or to spare that person the pain or indignity of such an existence.

All three types of defendants violate legally valid laws out of a sense of conscience. All understand the nature and consequences of their acts, and none suffer any disability that might ground a legal excuse. No ordinary defense clearly applies, yet punishment may raise intuitive discomfort. Many readers might ask, "Are these the types of people and conduct we had in mind when we built the prisons?"

Such defendants sometimes seek judicial instructions regarding either jury nullification or the necessity defense. Although appellate courts almost universally reject these requests, trial courts occasionally instruct regarding the necessity defense, and these instructions sometimes generate acquittals. Because commentators debate the propriety of jury nullification and the necessity defense separately, they do not clarify the relationship between the two or between each and crimes of conscience. Those who favor nullification tend to cite apparent examples in which juries nullify in service of noble causes, including free speech and resistance to slavery. Those who oppose nullification tend to cite apparent examples of jury nullification motivated by racial bias or animosity.

This Article examines the appropriate roles for jury nullification and the necessity defense as jury responses to crimes of conscience. It clarifies the role and parameters of each and examines the relationship between the two. Finally, the analysis considers the significance of these doctrines in understanding the juror's responsibilities both as a subject of and a temporary official in the criminal justice system and as an individual moral agent. As such, this Article presents a preliminary inquiry into the manner in which a person should understand the normative force of legal obligation in relation to individual conscience.

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