Core Jury Nullification

Jury Nullification Houston


Jury Nullification Houston

Clay S. Conrad: Jury Nullification

“Today judges tell jurors to commit injustice in the name of the law, and we call that progress” –Clay S. Conrad

Jury Nullification: Evolution of a Doctrine, written by Clay S. Conrad, is the leading academic work on jury nullification. At a conference hosted by the International Drug Policy Reform, the announcer described Clay as a “jury nullification heavyweight.” The panel discussion focused on how strategic jury nullification can be used to dismantle the war on drugs.

Independent verdicts have been in the interest of justice for over 800 years.  Juries serve as the final check on the power of the government to pass unjust, immoral or oppressive laws. Those laws can leave citizens at the mercy of sometimes jaded or corrupt courts and legislatures. The Founding Fathers feared that and is the reason why they guaranteed trial by jury three times in the Constitution.  Trial by jury is mentioned in the Constitution more than any other right.

Jury Nullification:  The Evidence of a Doctrine

In Jury Nullification, Clay examines the history, the law and the practical and political implications of jury independence. He examines the role of nullification in capital punishment law.  Clay details the dark side of jury nullification in Southern lynching and civil rights cases.  He also describes the purpose and legal effect of the juror’s oath.  Historians, trial lawyers, criminologists, political scientists and everyone interested in how our criminal justice system works should read this book.  Clay also describes methods to improve the system.

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What is Jury Nullification?

Jury nullification happens when a criminal trial jury refuses to convict on conscientious grounds in spite of proof of guilt beyond a reasonable doubt.  This happens because the jury believes the law is unjust, is misapplied or the punishment is inappropriate.

Juries have always had [a political] role. The founders intended to protect this in the 6th Amendment, and is guaranteed in the constitutions of all 50 states.  The phrase ‘judges of both fact and law’ has changed over the years.  The reason is because our understanding of where the law comes from has changed.  Historically, people believed in the doctrine of natural law, the generally accepted view of where the law comes from. Law was considered part of natural science to be discovered.

Today we have a more technocratic understanding of the law.  Natural law doctrine has given way to a positive, formalistic conception of law. But under natural law doctrine, when it is stated that the jury is the finder of fact and law, it means they can determine where justice lies.  This is because justice is what the law was. Today, judges tell jurors to commit injustice in the name of law, and we call that progress.

Key Historical Cases

imageIn the 1670 case of William Penn and William Mead, jurors were punished for acquitting the two men of tumultuous assembly.  That assembly was conducting a Quaker meeting. This is important because it is the only time in history where a Quaker meeting was deemed a tumultuous assembly.

[Edward] Bushell’s case did not deal with jury nullification, which is a common misunderstanding. Bushell found that jurors couldn’t be punished for his verdict because the judge could not determine how jurors decided facts.

The Zenger case involved two issues.  It was the foundation of our understanding of where a jury comes from and of freedom of the press. This is the history the founders knew. This is the background they had in mind when wroting the 6th Amendment. They understood the power of the jury to acquit in law and facts when the law is wrong.  The Zenger jurors were told by Alexander Hamilton, “Where a jury does not question the law they become useless”.

In 1985, the Supreme Court examined the murder case in Sparf vs. US.  The Court determined that a court didn’t have to allow jury nullification to be argued in front of the jury. They didn’t say that a court couldn’t allow it; they just said they didn’t have to.

Understanding Jury Nullification

imageDuring the Prohibition era nearly 60% of cases ended in acquittals.  The challenge for lawyers is to get jurors to understand and act on the jury nullification prerogative.

Most people are obedient to authority.  The Stanley Milgram experiment emphasizes the point that people do what they’re told to do. One of the jobs of lawyers is to free juries from that obedience to authority.

Activists must educate potential jurors because they’re not going to learn about this prerogative in court. They have to know about jury nullification before they come into court so they’ll be able to act on it.  Most citizens show up for jury duty and feel the need to stay quiet during jury selection.

Watch Clay’s presentation here:

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Jury Nullification Houston

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Jury Nullification Houston


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