The Chewbacca Defense made famous on South Park originally aired during my first year of law school. It is a powerful satire of trial advocacy, mocking the closing argument from the OJ Trial.
Ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!
Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor, with a bunch of 2-foot-tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I’m a lawyer defending a major record company, and I’m talkin’ about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you’re in that jury room deliberatin’ and conjugatin’ the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests
In the story, Capitalist Records sued Chef for harassing a major record company after Chef sought to enforce his copyright on a song and be credited with its authorship. However, once the fictional Johnny Cochran made his Chewbacca Defense in closing argument, the jury returned a verdict of Chef being guilty of harassing a record company. The fine was $2 million and payable within 24 hours or a jail sentence.
I’ve Got a Bad Feeling About This
It is Jury Nullification, which is a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness. (From Black’s Law Dictionary App).
The jury rejected Chef’s prior copyright evidence, instead siding with the record company because of the nonsensical red herring argument made by the cartoon Cochran. This result demonstrates jury nullification of Chef’s copyright claim. Additionally, while jury nullification is generally in criminal proceedings, given the size of the fine and jail sentence threatened against Chef, what originally was a civil action has significant criminal law overtones.
Here is how one court described jury nullification:
“[A jury] has the power to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury. But jury nullification is just a power, not also a right, [ ], as is shown among other things by the fact . . . that a trial error which favors the prosecution is harmless if no reasonable jury would have acquitted, though an actual jury might have done so.”
Sorich v. United States, 709 F.3d 670, 678 (7th Cir. Ill. 2013), citing United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988).
So, why use Chewbacca to get the jury to ignore the copyright evidence? Because neither an attorney or judge should instruct or encourage juries to use their nullification power. United States v. Appolon, 695 F.3d 44, 64-65 (1st Cir. Mass. 2012), citing United States v. Manning, 79 F.3d 212, 219 (1st Cir. 1996) and United States v. Bunchan, 626 F.3d 29, 34 (1st Cir. 2010). Purposefully telling a nonsensical story about Chewbacca would be the most direct way to get the jury to ignore their duty to apply the facts to the law with an extremely dangerous weapon in court: confusion.
This conduct would be both highly unethical and violate the rules of evidence, because the Chewbacca Defense is 1) Not relevant to the litigation and 2) The prejudicial effect outweighs the probative value of presenting Wookiees and Ewoks to a jury in a copyright case. To put it simply, there is too much danger of a jury just letting the Wookiee win. A judge likely would say, “I have a bad feeling about this” and possibly declare a mistrial if such an argument was made in court.
A party successfully using the Chewbacca Defense to confuse the jury into engaging in jury nullification in a civil lawsuit runs the risk of the losing party winning on a Judgment Notwithstanding the Verdict (JNOV). In Chef’s case, the copyright violation should have entitled him to a judgment as a matter of law.
What a Wookie
He likely would be imposing co-counsel in a trial, delivering howling cross-examinations.
Chewbacca would also give closing arguments no one would forget.
Sadly, Court Reporters would fear him.
However, actually using the Chewbacca Defense to get a jury to nullify the law would end with the judge feeding the lawyer to the Rancor.