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Cato Policy Report, January/February 1999

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Jurors Should Know Their Rights

A historical look at jury independence

The atomic bomb introduced Americans to the nuclear age. The result is that many Americans still fear anything with the word “nuclear” in it. In a similar way, the general American population was first exposed to the concept of jury nullification in the closing days of the O. J. Simpson trial. Most people have a negative view of jury nullification because of Johnnie Cochran’s closing arguments. Cochran’s argument also brought publicity to George Washington University law professor Paul Butler. Butler advocates race-based jury nullification (e.g., black juries should acquit black defendants for nonviolent offenses even when the evidence of guilt is clear).

A new book from the Cato Institute by Clay Conrad attempts to reintroduce the concept of jury nullification to a general audience. In Jury Nullification: The Evolution of a Doctrine, published by the Cato Institute and Carolina Academic Press, Conrad concludes that there is nothing “wrong” with jury nullification; nullification is part and parcel of what a jury is all about. Conrad argues that the nullification power has sometimes been abused, as has all power. The abuses have been exaggerated to discredit the nullification idea itself.

Central to the history of trial by jury is the right of jurors to vote “not guilty” if the law is unjust or unjustly applied. When jurors acquit a factually guilty defendant, we say that the jury “nullified” the law. The Founding Fathers believed that juries in criminal trials had a role to play as the “conscience of the community” and relied on juries’ “nullifying” to hold the government to the principles of the Constitution. John Adams wrote, “It is not only the juror’s right, but his duty to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the instruction of the court.” Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”

Conrad traces the doctrine of jury nullification from it roots in England up to the present. Although opponents of jury nullification often point to the civil rights era when some all-white juries refused to convict whites accused of brutalizing and killing blacks, Conrad notes that jury nullification was also used to protect people who were prosecuted under the Fugitive Slave Act in the years before the Civil War. Jurors routinely refused to convict people who were helping slaves attain their freedom.

Yet over the last century and a half, the power of jurors has been derided and ignored by American courts, to the point that today few jurors are aware that an important part of their role is, in the words of the Supreme Court, to “prevent oppression by the government.” Several state constitutions explicitly say that juries shall have the power to judge the law as well as the facts in criminal cases, but those provisions have been watered down by judicial rulings.

Jury Nullification has drawn much praise. Randy Barnett of the Boston University School of Law says, “This is the most important book on the independence of juries since Lysander Spooner’s Trial by Jury in 1852. It is meticulously researched and balanced. The enjoyment of reading it stems as much from the beauty of Clay Conrad’s writing as from the comprehensiveness of his analysis and the fascinating and important nature of his subject.” Stephen B. Presser of the Northwestern University School of Law says, “Mr. Conrad’s book is sure to become the standard work on jury nullification. It is the best and most informed defense of the notion that jurors have the right as well as the power to depart from the instructions of the judge that I have encountered.”

Conrad is currently an attorney in private practice in Houston, Texas. He previously served as a staff attorney for the Texas Criminal Defense Lawyers Association.

This article originally appeared in the January/February 1999 edition of Cato Policy Report.