Jury Nullification: The Evolution of a Doctrine

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Summary: You must read this book!!
Review: A fascinating study of the often-ignored history of jury nullification in America. Today we mostly think of this phenomenon in the context of the O.J. Simpson trial, or the juries that refused to convict racist killers in the South during the Civil Rights era. As the author points out, that's a small part of the jury nullification picture. The Framers considered such injustices well worth it in light of the jury's ability to frustrate the actions of would-be tyrants. Such discretion on the part of juries has its downside, of course -- but so does the unbridled discretion of prosecutors, which is generally considered to be a Good Thing by many of those who fear giving the same discretion to juries. As Conrad makes clear, it's not obvious why this should be the case.

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Summary: Jury discretion: no scarier than prosecutorial discretion
Review: A fascinating study of the often-ignored history of jury nullification in America. Today we mostly think of this phenomenon in the context of the O.J. Simpson trial, or the juries that refused to convict racist killers in the South during the Civil Rights era. As the author points out, that's a small part of the jury nullification picture. The Framers considered such injustices well worth it in light of the jury's ability to frustrate the actions of would-be tyrants. Such discretion on the part of juries has its downside, of course -- but so does the unbridled discretion of prosecutors, which is generally considered to be a Good Thing by many of those who fear giving the same discretion to juries. As Conrad makes clear, it's not obvious why this should be the case.

Rating:
Summary: You must read this book!!
Review: Just before a jury retires to deliberate in a criminal case, the judge tells the jurors that they "must follow the law--even if they do not agree with it." This book shows that such an instruction is very misleading. A ton of evidence is presented to show that juries are supposed to "check" the government by returning "not guilty" verdicts whenever they conclude that the person on trial is being treated unjustly. Our second president, John Adams, said "it is not only the juror's right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, even though in direct opposition to the direction of the judge."

These days judges influence the outcome of trials by counting on the average citizen's ignorance and by "excusing" any citizen who knows about the doctrine of jury nullification. Interestingly, a single vote can make a big difference. Because a unanimous vote is necessary for a conviction, a single juror who votes his or her conscience (and withstands the peer pressure to go along with the others) can obtain a hung jury. The person on trial may be retried again, but prosecutors will surely think twice about the matter before expending more time and money on the case.

The author explains how jury nullification got a bad wrap and convincingly answers the common objections. I was surprised to learn that defense attorneys can be punished for mentioning seemingly important pieces of information at trial. For example, if someone used marijuana to relieve nausea stemming from AIDS, the judge typically "bars" any mention of the person's illness as "irrelevent." The jury never hears about it. That does not sound like a "trial by jury" to me

Rating:
Summary: A Most Excellent Book
Review: Many have heard how juries bravely refused to convict people accused of assisting runaway slaves in the 19th century but few know the full history of jury nullification. Clay Conrad aims to remedy that ignorance in this excellent book from the Cato Institute. Starting with cases from hundreds of years ago, the history of jury powers is meticulously detailed with all the major episodes covered including recent events such as the Laura Kriho conviction. Jury independence is shown time and again to have been on the right side of issues such as slavery, prohibition, the labor movement and draft resistance. The modern jury power movement is also examined.

This isn't just a history book, though. The author looks at constitutional issues, studies of jury behavior, and also addresses many of the criticisms of jury power. The most widely repeated criticism is that jury nullification was largely responsible for the lack of convictions in the South of whites committing crimes against blacks. Conrad makes a strong case that it was racist judges, police and prosecutors as well as the practice of preventing blacks from serving on juries that resulted in so few convictions.

The book is rounded out with a chapter full of interesting tactics on how lawyers can introduce nullification arguments in court.

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Summary: About Time!
Review: With the growth of interest in juries since the OJ and Kevorkian cases, it is about time that someone wrote a truly well-researched work on how juries actually work, and why. This work is long overdue. Conrad does an excellent job in developing the history of the criminal jury, and explains why criminal juries have the "prerogative" of nullifing laws that are unjust or unjustly applied.

Whether liberal, libertarian or conservative, it is hard to argue that juries have to follow the law no matter how unjust the law is. Now, there is a well-researched and well documented book explaining how and why the jury's nullification power became a part of American law. It is about time.