Juries & their rightful powers

University of Tennessee law professor Glen Reynolds (Yale Law School 1985) of InstaPundit reviews "Jury Nullification: The Evolution of a Doctrine" by Clay S. Conrad in the Cornell Journal of Law and Public Policy. It's a few years old now, but worth a read

This very short historical summary leaves us at an interesting place. In truth, not many lawyers or scholars disagree with Conrad's thesis as a matter of law. It is widely agreed that juries have the power to refuse to convict - or, in civil cases, to refuse to render a verdict for the plaintiff - where they believe that the result would be unjust, or inconsistent with their view of what the law is or should be...

The real question is not whether juries can do this, but whether they should be told that they can do this. [FN30] And not just whether they can be told by courts or lawyers. As Conrad recounts, those who attempt to *691 inform jurors of this truth by engaging in what certainly looks like classic First Amendment conduct, such as leafleting near courts, often find themselves targeted for suppression by prosecutors and judges when the subject of their leaflets is a jury's right to judge the law. [FN31] Well, that question, at least, should be easy. Suppression of such efforts is simply inconsistent with the First Amendment...

Similarly, the efforts of courts and prosecutors to punish jurors for nullification, chillingly described in Conrad's book, further undermine any claim that such efforts are undertaken in the interests of justice. As Conrad tartly notes, jurors are never prosecuted for convicting wrongly, only for holding out for acquittal...

Bazelon goes on to note that where juries decline to convict on such grounds, it is an important source of information about the popular perceptions of a law's legitimacy:

The reluctance of juries to hold defendants responsible for violations of the prohibition laws told us much about the morality of those laws and about the "criminality" of the conduct they proscribed. And the same can be said of the acquittals returned under the fugitive slave law as well as contemporary gaming and liquor laws. A doctrine that can provide us with such critical insights should not be driven underground.

Reynolds proposes an interesting check on bad judges, prosecutors, and defense attornies.