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Jury Nullification: The Evolution of a Doctrine

by Clay S. Conrad

What Everyone Should Know About the
Powers of the Jury

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. Yet over the last century and a half, this 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." Published by Carolina Academic Press.

Clay S. Conrad is an attorney in private practice in Houston, Texas.

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.
--Randy E. Barnett
Austin B. Fletcher Professor of Law, Boston University

Contents: Preface; 1. Introduction; 2. The Origins of the Doctrine; 3. Revolutionary Times; 4. The Development of the Modern View; 5. The Modern Era; 6. The Current Debate; 7. Scapegoating the Jury; 8. The Capital Jury; 9. The Obligations of Jury Duty; 10. The Lawyer’s Challenge; 11. Summary; Index.

JURY NULLIFICATION: The Evolution of a Doctrine, by Clay S. Conrad

Chapter One


"Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just the nullification doctrine." Judge David L. Bazelon

There may be no feature more distinctive of American legal culture than the criminal trial jury. Americans have a deep and stubborn devotion to the belief that the guilt or innocence of a person accused of crime can only be judged fairly by a "jury of his peers." This notion is a particularly American one, although it was inherited from English common law during the Colonial era.


What Jury Independence Is All About

Jury independence is a simple doctrine, although in individual applications it has occasionally had dramatic and wide-ranging implications. The doctrine states that jurors in criminal trials have the right to refuse to convict if they believe that a conviction would be in some way unjust. If jurors believe enforcing the law in a specific case would cause an injustice, it is their prerogative to acquit. If they believe a law is unjust, or misapplied, or that it never was, or never should have been, intended to cover a case such as the one they are facing, it is their duty to see justice done.