Fully Informed Jury Association

Are you fully informed about jury nullification?

Function of Juries & Jury Nullification | 18 Feb 2014

-Misinformation in “Jury Nullification: The Law You Won’t Be Told”

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While we’re happy to see a video on jury nullification getting lots of views, it unfortunately contains some incorrect and misleading information, which we will address here:

IMG_02671. “A video, such as this one, simply acknowledging the existence of jury nullification and in no way advocating it is totally okay… So why can’t you do this?”

Well, you CAN do this, and FIJA activists do this regularly, usually without any problems. Advocating jury nullification is, in fact, generally okay. It is HOW you do it that is important, which is why we have guidelines for doing courthouse outreach.

Per the United States District Court, Southern District of New York:

The relevant cases establish that the First Amendment squarely protects speech concerning judicial proceedings and public debate regarding the functioning of the judicial system, so long as that speech does not interfere with the fair and impartial administration of justice. In Wood, the Supreme Court held that even speech to a grand juror may be protected by the First Amendment if it does not present a clear and present danger to the functioning of the courts. 370 U.S. at 395. At the same time, the First Amendment does not create a right to influence juries outside of official proceedings, Pennekamp v. Florida, 328 U.S. 331, 366 (1946) (Frankfurter, J. concurring), because “[d]ue process requires that the accused receive a trial by an impartial jury free from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Consistent with this interpetation, the court in Turney found that the narrow category of speech knowingly made to jurors outside of an official proceeding and “with the intent to influence the outcome of a specific case” was not protected by the First Amendment. 400 F.3d at 1201 (emphasis in original).

A broad construction of 18 U.S.C. § 1504 that encompassed speech to a juror on any subject that could be considered by a juror would arguably chill protected speech because it could sweep within its prohibitions speech that was not made with the intent of influencing the outcome of a particular case and that did not pose a clear and present danger to the administration of justice.

Based upon the plain meaning of the text of 18 U.S.C. § 1504, reinforced by relevant judicial interpretations and the doctrine of constitutional avoidance, the Court holds that a person violates the statute only when he knowingly attempts to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of written communication made in relation to a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.

FIJA literature does not discuss any case in progress, and on the very rare occasions when individuals are arrested handing out literature advocating jury nullification, it has typically either involved being arrested maliciously for something not specifically related to advocating jury nullification (such as for violating a judge’s order instead of challenging it through the civil legal process) or has involved advocating jury nullification in a particular case rather than just doing general juror education outreach. Twice this year I have myself done general juror education at a courthouse in Bellingham with no problems. We had a couple of dozen events across the country last year on Jury Rights Day, mostly at courthouses, with zero arrests. We recommend that people read and follow FIJA’s guidelines for juror education.

Advertisement for sale of Shadrach Minkins, 1849

Advertisement for sale of Shadrach Minkins, 1849

2. “The go to example of jury nullification is the Fugitive Slave Law when northern juries refused to convict escaped slaves and set them free.”

If you learn just one thing today about jury nullification today, please let is be this: SLAVES were not tried under the Fugitive Slave Act and set free through jury nullification. It was those who AIDED in their rescue who were afforded trials by jury. To say that northern juries set slaves free not only WRONG, but it also reflects dramatic ignorance of the depths of abuse people were subjected to under slavery.

This past weekend was the anniversary of the arrest of Shadrach Minkins, who was arrested in Boston under the Fugitive Slave Act. Shadrach Minkins never had a jury trial, and he never WOULD have had a jury trial. His case would have been decided in a hearing by a judge who had a clear incentive to return him to the person claiming to own him. Everyone standing in Minkins’ corner knew this and so the postponement was requested in order to buy time to find a way to save him. Ultimately, a daring rescue was mounted, the likes of which are barely imaginable today.

3. “And also juries have two options for where their thoughts may differ from their words. Jury nullification usually refers to the not guilty version, but juries can convict without evidence just as easily as they can acquit in spite of it. This is jury nullification, too, and the jurors are protected by the first rule [jurors cannot be punished for their verdicts], though the second [their Not Guilty decision can’t be changed] doesn’t apply. And judges do have the ability to overrule the guilty verdict if they think the jurors aren’t the best. And, of course, a guilty defendant can appeal, at least for a little while, which make the guilty form of jury nullification weaker than the not guilty kind. Cold comfort, though.”

In most courts, jurors must come to a unanimous verdict to convict or outright acquit someone. To state that juries can convict just as easily as they can acquit is technically correct; however, it is misleading. Instead of comparing the cases of conviction and outright acquittal, let’s compare the cases of convicting and not convicting. In the case were jurors THINK a defendant is Guilty but VOTE Not Guilty, it takes only 1 juror in most courts to prevent conviction by hanging the jury. In cases where jurors THINK a defendant is Not Guilty but VOTE Guilty anyway, 1 juror or even a simple majority of jurors, is insufficient in every court in the United States to convict. It is clearly much harder for juries to convict than it is to prevent conviction.

Further, it is harder to make a conviction stick than it is to sustain an outright acquittal. An outright acquittal is the end of the case. A judge cannot overturn an acquittal, nor can the prosecution appeal an acquittal in the United States. On the other hand, defendants DO have the right to appeal their convictions, and in some cases, such as capital cases, an appeal is automatic. If they are unsuccessful in their appeals, defendants’ sentences may be softened or overturned through commutation or pardon (an executive’s nullification power).

The system was specifically designed this way, purposefully making conviction of defendants MUCH harder than non-conviction, either through acquittal or a hung jury. As English jurist William Blackstone expressed in his work Commentaries on the Laws of England in the 1760s, which were in print in the English colonies just before the American revolution and which were a strong influence in crafting the American legal system and on later American jurisprudence, “It is better that ten guilty persons escape than that one innocent suffer.”

It is true that jurors can vote whichever way they want without punishment-including guilty, but calling “the guilty kind” a form of jury nullification is questionable at best. Jury nullification is referred to as “nullification” because in NOT enforcing the law, jurors nullify the law. What the video refers to as “the guilty kind” of jury nullification does not involve nullifying the law, but enforcing its penalty on someone even though they have not broken it. This is more like the opposite of nullification-affirming and enforcing a legal penalty on someone and not nullifying it.

4. “Do you have any beliefs that might prevent you from making a decision based strictly on the law? If, after learning about jury nullification you think it’s a good idea, answer yes [during voir dire] and you’ll be rejected. But answer no with the intent to get on the jury to nullify, and you’ve just committed perjury, technically a federal crime, which makes the optimal strategy once on a jury to zip it. But this introduces a problem for jurors who intend to nullify. Telling the other 11 angry men about your position is risky, which makes nullification as a tool for fixing unjust laws nationwide problematic.”

As is the case with any tool, jury nullification is not a universal way to fix everything. That said, empirical evidence shows it to be an extremely powerful and effective tool. Jurors voting Not Guilty undermined the Fugitive Slave Acts and opened the door to Emancipation and the Thirteenth Amendment in the United States. Juror refusing to convict their neighbors under alcohol control laws brought about an end to alcohol prohibition in just 13 years. This past Valentine’s Day, we saw laws against same sex marriage take some major legal blows in two Southern states. But long before now, long before the U.S. Supreme Court’s historic ruling in Lawrence v. Texas, juries were refusing to convict under anti-cohabitation and anti-sodomy laws. In just the past couple of years, we have seen juries refuse to convict

  • farmers on licensing violations related to raw milk,
  • political activists for offenses related to their right to free speech,
  • numerous defendants for marijuana and other victimless drug violations,
  • a man who mistakenly had a firearm in his glove box when he traveled to Manhattan and was pulled over for turning right on red,
  • a man who admitted to punching a priest who he accused of sexually abusing him and his brother 40 years before,
  • and more.

So even very recently, we see that people are successfully getting seated on juries where they successfully protect others through their use of juror veto power. Sometimes this protection comes in the form of outright acquittals; sometimes it is in the form of hung juries. Hung juries, while not as extensive a form of jury nullification as outright acquittal, do at least nullify the law in the trial at hand. This is a much better outcome for a defendant than a conviction. Sometimes prosecutors will not refile charges after a hung jury, believing their odds of securing a conviction the next time to be insufficient. They may offer a much better plea bargain to the defendant than they had previously. Other times judges themselves will not permit a retrial. Even if the defendant is retried, they are likely making their case in court from a much stronger position than they would be if they were appealing a conviction.

But how do you get on a jury if you know about juror veto power? We suggest you browse the brochure Surviving Voir Dire (.pdf). Give careful thought ahead of time to what questions you might be asked and how to answer them. Once on a jury, we do recommend that unless you are very confident in the sympathies of your fellow jurors (or you are in New Hampshire), do not discuss jury nullification with your fellow jurors. While jurors cannot be punished for their verdicts, jurors can be removed from the jury-even as late as deliberations-if they indicate that they are intending to nullify. Jurors cannot, however, be removed for expressing doubt about the defendant being guilty.

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