Clay Conrad

A Texas jury was recently lambasted in open court for committing jury nullification by visiting judge Jerry Ray because they acquitted a defendant in a driving while intoxicated (DWI) case. Judge Ray went so far as to equate the jury’s verdict with the acquittal of O.J. Simpson. Unfortunately, like many judges, Judge Ray did not understand what jury nullification is, what juries do, or his own obligations as a judge.

Jury nullification occurs when a criminal jury votes not guilty, in spite of proof of guilt beyond reasonable doubt, because they believe the law is either unjust or is being misapplied. Jury nullification has a heroic history, having laid the foundation for the First Amendment, helping to bring about an end to slavery, and precipitating the demise of Prohibition. It was because juries refused to send all killers to the gallows that American courts carved out degrees of homicide; it was because juries refused to convict women who killed their abusive husbands that courts began to recognize Spousal Abuse Syndrome.

Social change moves more rapidly than legal change, and that is probably for the best. We do not want the laws whipsawing with every trend or fad. On the other hand, we don’t need to be filling prisons with harmless people who violated laws that no longer serve to protect society. Jurors, acting in a deliberative body, are capable of properly balancing social change with the law, acting as a safety valve to prevent the law from destroying good people who have run afoul of outdated or ill-conceived legislation. In the process, jurors can send a message to the legislature as to how the law needs to change to better serve society.

In short, jury nullification is not a “bug” within the criminal justice system – it is a feature. Jury discretion was protected by the Founders, who understood that legal professionals did not have all the answers. The Founders guaranteed a right to jury trial to ensure the public has a voice in seeing that justice is done – a very different thing from merely seeing that the law is enforced. That is why the jury is so often referred to as the “conscience of the community.”

But a jury cannot nullify the law by acquitting a defendant who has not been proven guilty. The first step is for the jury to decide the evidence is adequate to prove guilt; if the jury cannot get to that point, they have nothing to nullify. There is no reason to believe the Tarrant County jury in this case nullified.

Clay Conrad

Clay S. Conrad is the author of Jury Nullification: The Evolution of a Doctrine, recently released as an e-book from the Cato Institute. He is a partner with the Houston law firm of Looney & Conrad P.C.