Clay Conrad on Jury Nullification

A few weeks ago, the Drug Policy Alliance had its annual convention in Denver.  I was on a panel that addressed jury nullification.  The other panelists were Clay Conrad (author, Jury Nullification: The Evolution of a Doctrine), Kirsten Tynan (Fully Informed Jury Association), and Steve Silverman (Flex Your Rights).  Steve Silverman transcribed the discussion.  Here is an excerpt:

Clay Conrad

Clay Conrad: Jury NullificationToday judges tell jurors to commit injustice in the name of the law, and we call that progress  –Clay Conrad

Clay Conrad is currently a lawyer in private practice.  He discusses the history and background of jury nullification. (Jump video of Clay’s talk.)

What is Jury Nullification?

“Jury nullification is the act of a criminal trial jury in refusing to convict on conscientious grounds in spite of proof of guilt beyond a reasonable doubt, because they think the law is unjust, the law is misapplied, or the punishment is inappropriate.”

“Juries have always had [a political] role. That’s what the founders intended to protect in the 6th Amendment, and that’s what’s guaranteed in the constitutions of all 50 states.”

“The understanding of the phrase ‘judges of both fact and law’ has changed over the years because our understanding of where the law comes from has changed. Back in that period of history, people believed in natural law doctrine. That was the generally accepted view of where the law comes from. Law was considered part of natural science to be discovered.”

“Today we have a much 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 you say the jury is the finder of fact and law, it means they can determine where justice lies, because justice is what the law was. It was the understanding of what was just that was their understanding of the law.”

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

Cato will soon be releasing an e-version of Clay Conrad’s book.