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Print Vol. 107, Issue 2


Jurisdictional Elements and the Jury

G. Alexander Nunn, Assistant Professor of Law, University of Arkansas School of Law

26 Apr 2022

Do jurisdictional elements in criminal statutes actually matter? Of course, formally, the answer is obvious; jurisdictional elements are of paramount importance. In fact, they often serve as the entire justifying basis for a federal (rather than state) criminal prosecution. But beyond mere technicalities, do jurisdictional elements actually make a difference in a jury deliberation room?

In pursuit of an answer, this Article undertakes a novel empirical study designed to assess the antecedent issue of how laypeople weigh jurisdictional elements when determining guilt. The project’s experiment ultimately finds that when one increases the amount of evidence demonstrating a defendant’s substantive guilt, laypeople improperly transmute their decisions regarding that substantive guilt into determinations regarding supposedly independent jurisdictional elements. That is, the study suggests that individual laypeople increasingly—and improperly—deem jurisdictional elements satisfied as a defendant’s substantive guilt becomes more apparent.

Given that empirical finding, the Article offers a number of contributions to the normative literature. For one, it directly raises follow-on questions as to whether jurisdictional elements truly constitute a meaningful barrier to federal prosecution, especially when a defendant’s factual guilt seems clear. Of course, a jurisdictional requirement that ebbs and flows based on layperson perceptions of a defendant’s substantive guilt is no jurisdictional requirement at all. Additionally, the project informs enduring debates in courts and Congress. Namely, the Article’s insights about layperson epistemology encourage renewed scrutiny of the optimal balance of decision-making authority in the courtroom.

To read this Article, please click here: Jurisdictional Elements and the Jury.