Silencing Nullification Advocacy inside the Jury Room and outside the Courtroom

Reflections on Government Appeals of Criminal Sentences, 78 Mich L Rev 1001, 1012 (1980). The frequency of nullification is unknown, but most commentators agree that it rarely occurs.See Harry Kalven, Jr. and Hans Zeisel, The American Jury 56-57, 116 (Chicago 1971) (providing data that indicates judges attribute to nullification only about 4 percent ofjury acquittals in criminal cases in which the judge would have convicted).See also Roger Parloff, Race and Juries: If It Ain't Broke .... Am Law 5, 5 (June 1997) (reporting acquittal and hung jury rates for several jurisdictions).Compare Clay S. Conrad, Jury Nullification as a Defense Strategy, 2 Tex Forum Civ Lib & Civ Rts 1, 26-33 (1995) (collecting many recent examples of nullification).2 See Kalven and Zeisel, The American Jury at chs 20-27 (concluding that jurors nullify where they believe the defendant has been punished enough, where the punishment threatened is too severe, where the state has given a codefendant preferential treatment, where the police or the prosecution have acted improperly, where the defendant's conduct was inadvertent, where the defendant was insane or intoxicated at the time of the offense, or where the defendant or victim is a member of a particular group or subculture).See, for example, Gail Diane Cox, Jurors Rise up over Principle and Their Perks, Natl L JAl (May 29, 1996) (reporting that jurors in a recent San Francisco case refused to continue deliberations when they learned the defendant would be subject to the "three strikes" law); Aaron T. Oliver, Jury Nullification: Should the Type of Case Matter?, 6 Kan