This is part of a series of responses to myths, misconceptions, and misstatements about jury issues, including jury nullification and juror education outreach. There are no lawyers on FIJA’s staff or board of directors, and FIJA does not provide legal advice. These observations are provided for educational purposes and do not in any way constitute legal advice.
Q: Is it illegal to share jury nullification literature? For example, does it constitute “jury tampering”?
A: No, when juror education outreach is done properly, it is neither illegal, nor jury tampering.
Many people seem to be confused about the legality of the kind of outreach that FIJA activists and others around the country do to fully inform everyone of the traditional, legal role of jurors, including their right of jury nullification. Sometimes this is because people who have been handing out jury nullification literature have been arrested. Most recently, we have heard tell that there may be someone who is discouraging marijuana activists from discussing and publicizing this very powerful, protective tool at jurors’ disposal, saying that it is illegal or jury tampering to discuss it, or something along those lines. When many peaceful defendants’ last resort for a just verdict in their trials is jury nullification, it is very important not to let this kind of errant information discourage activists from fully informing our communities of jurors’ full authority in delivering just verdicts. Now seems a critical moment to shed some light on this topic so that activists feel confident in exercising their First Amendment rights in support of all of our Sixth Amendment rights.
First off, what is jury tampering? There are various legal prohibitions against jury tampering, so let’s just look at the federal level to get the general idea. 18 U.S.C. 1503 covers influencing jurors generally. It discusses threatening or actually injuring jurors in an attempt to influence the outcome of a specific case. 18 U.S.C. 1504 covers influencing jurors in writing. It covers attempting in writing to sway the decision of a juror in a particular case one way or the other. If you are purposely trying to sway a juror who is actively serving on a case to vote either Guilty or Not Guilty in a specific case for which they are a juror, you may be engaged in jury tampering.
FIJA outreach, however, is different. We do not advocate for or against a particular verdict in any case in progress, but rather we do general juror education outreach. Our brochures that we use for sidewalk outreach do not mention any case in progress, and our guidelines specifically advise against mixing case advocacy with general juror education efforts:
FIJA activists should make it clear that they are only passing out information of general interest to all citizens, and are not trying to influence any particular case. No case-specific literature should be distributed with FIJA literature to anyone who might be a prospective juror.
In the most recent case we’re aware of that involved general juror education outreach with FIJA literature being met with jury tampering charges, the case against the defendant was dismissed by the judge, who ruled that:
The Court’s holding merely maintains the existing balance that federal courts have found between freedom of speech and the administration of justice. Attempts to tamper with a jury in order to influence the outcome of a trial or a grand jury proceeding are still clearly prohibited under 18 U.S.C. § 1503 and 18 U.S.C. § 1504. Efforts to distribute leaflets to jurors in the immediate vicinity of courthouses may still be sanctioned through reasonable time, place, and manner restrictions such as those promulgated pursuant to 40 U.S.C. § 1315 and 41 C.F.R. § 102-74.415(c). The Court declines to stretch the interpretation of the existing statute prohibiting communications with a juror in order to cover speech that is not meant to influence the actions of a juror with regard to a point in dispute before that juror or the outcome of a specific case before that juror.
For the foregoing reasons, the Defendant’s motion to dismiss the Indictment is GRANTED. The Defendant’s other motions are now moot and are dismissed.
If there is a case of interest to you personally, we recommend that you do not just suddenly show up the day of the trial and disappear once it is over. Rather, consider establishing a presence at least two weeks prior to a particular jury trial, and continue at least a week after. This makes you a “part of the landscape” and keeps you from being associated with a specific case. (Better yet, establish an ongoing juror outreach effort in your area as activists have done in California, Florida, New Hampshire, and elsewhere.)
We also recommend the following to juror education activists doing outreach near courthouses:
1. Stick to the public sidewalk in front of the courthouse. You are more likely to have an unpleasant encounter with courthouse officials if you attempt to distribute literature inside the courthouse.
2. Offer literature to everyone without regard to who they are and do not try to single out jurors in any way. We do general educational outreach not only to avoid the mistaken impression that anything we do is jury tampering, but also because it is a more effective educational strategy. Most of the people you encounter could one day be called to serve as a juror. Even those who aren’t eligible may pass along our literature to others. We get calls in the office regularly from people who have been handed our literature by someone else, picked it up in an office waiting room where it was left by someone else, etc. Our mission is to fully inform everyone of the juror’s traditional, legal authority to refuse to enforce the law when it would be unjust to do so, and that is best served by casting a wide net.
3. Go the extra mile to be friendly and courteous, and to avoid being perceived as belligerent, profane, harassing or a nuisance.
Earlier this year, about five or six FIJA activists were canvassing the downtown Bellingham, Washington area, including the Whatcom County Courthouse, when some of us had an encounter with a courthouse official. He came out because apparently someone had reported our outreach, and indeed, had exaggerated it FAR out of proportion to what we were doing. The official was surprised to discover only two of our activists in front of a very large courthouse entrance. The others were spread out at the library, city hall, and the post office. He had been under the impression from what had been reported that there were hundreds of us blocking the sidewalk and entrance such that people couldn’t get through. Upon seeing the situation was not at all what had been represented to him, though, he simply had a friendly chat with our activists cautioning us not to block the way into or out of the courthouse and not to harass or badger anyone, which is precisely how we were already behaving.
Behaving in an assertive but still friendly and non-belligerent manner helped our activists get tacit acknowledgement from the courthouse staff that we had the right to be there and were not doing anything wrong. They let us continue our work with no further encounters since. This has helped us maintain our ability to return and continue our efforts at this location without being sidetracked from the mission of educating people about jurors’ rights by having to defend our First Amendment rights.
4. If asked by courthouse officials to leave, exercise peaceful forbearance and challenge the request through civil processes rather than getting arrested. This does not mean forfeiting your First Amendment rights, but rather acting strategically to preserve your ability as well as other activists’ willingness and ability to exercise them in the future. There are other and better means by which to challenge these requests than to get arrested. For example, with a little bit of communication with a courthouse, a peaceful but assertive FIJA activist was able to get this memo issued by the Fifth Judicial Circuit Court of Florida in Marion County specifically clarifying to all courthouse officials that it is our First Amendment right to hand out FIJA literature and that we are allowed to do so.
There are also civil legal processes that are much more advantageous and likely to succeed than being arrested, jailed, and dragged through the criminal court system for pushing back against these First Amendment encroachments. If you are asked to leave, as you magnanimously agree to temporarily suspend your efforts until the matter is sorted out, you may wish to gather pertinent information that will assist you in your efforts to assert your right to do juror education outreach. For example, you can ask some questions as you comply with the request, such as “I’m going to comply with your request, but isn’t it my First Amendment right to distribute this information?” Or you may say, “I’m going to leave, but I would first like to get your name and contact information so that I may call you as a witness if I decide to challenge this order. Do you have a business card?” You may also ask, “Where may I stand to distribute brochures?” If the person harassing you does not recommend another location, you may identify another location and ask “May I distribute literature in that location?” It puts you on a different footing if an official has specifically agreed that you may conduct outreach in a particular location.
When an individual gets arrested, no matter how well-meaning they were in their efforts, that is counterproductive to effective juror education outreach. On the rare occasions when a couple of people have gotten arrested, we have experienced fallout of that for years into the future with other activists feeling they do not want to risk doing sidewalk activism for fear of getting arrested. Often that damage cannot be repaired by explaining how following our guidelines make this a minimally risky activity. Furthermore, when uninformed members of the general public see people getting arrested for informing others about jury nullification, they often get a negative impression about jury nullification itself, thinking that it is somehow illegal or unethical or otherwise a concept that they do not want to learn more about or use when they have the opportunity.
5. Be meticulous in following the law and also administrative orders from judges in the courthouse. On the very rare occasions when someone gets cited or arrested in conjunction with their juror education outreach efforts, it is usually for something incidental going on rather than directly for juror education since most courthouse officials recognize that jury tampering charges are not valid for activism done according to FIJA guidelines, and if the case goes before a jury, the jury will be fully informed about their right to nullify because of the nature of the case and evidence (such as FIJA literature). So be sure you are not committing any offenses that make it easy for officials to harass you such as having unpaid parking tickets, jaywalking, committing driving violations, etc. This will minimize the options law enforcement officers have for bullying you.
We have seen a couple of activists arrested for allegedly violating orders in effect from a chief administrative judge in a courthouse. If you violate a judge’s order, you are not likely to be charged with jury tampering, which would probably be eligible for a jury trial, but rather with contempt of court with the judge who charged you also serving as your “jury” and sentencer. Your odds of prevailing under such circumstances are obviously very low and will likely necessitate an appeal. By the time that happens, you may have already served out your entire sentence. This legal theater is based on a script that judges and law enforcement are very expert at performing, and you are at a distinct disadvantage on this stage.
This is why we recommend pursuing a civil challenge to such orders rather than getting arrested and endangering yourself and jeopardizing the ability for anyone to do activism in that location for years to come. A civil challenge to a judge’s order can at the very least involve the order being reviewed by a second judge, rather than the criminal scenario where the judge adjudicates his own order. If a civil challenge to an illegal administrative order works, great! Problem solved. If the administrative challenge does not get the order removed and you really want to get arrested, you can still do that. But if you go the criminal route first, odds are good that a civil challenge by you or anyone else who appears to be associated with you will not be taken seriously by the court as it appears that a party to the challenge is acting in bad faith.
In summary, when done properly, informing others about jury nullification, even in close proximity to a courthouse, is generally not illegal and does not constitute jury tampering. FIJA activists have done this regularly nationwide, for many years, coming out en masse every 5 September to celebrate Jury Rights Day by distributing FIJA brochures on jury nullification at courthouses across the country. When following FIJA guidelines, the chances of being arrested or charged are vanishingly small. Our guidelines include extra precautions for safely dealing with courthouse officials who do not properly understand the bounds of their authority. FIJA does not want anyone getting arrested. We are happy to provide free training to minimize this very small risk and work with you to develop a local strategy tailored for juror education outreach in your community. You may contact us in the office at (406) 442-7800 or by email to firstname.lastname@example.org to discuss how we can set up a training and strategy session specifically tailored for your group. We are not a legal advocacy organization, we do not have lawyers on staff, and we do not defend or fund the defense of anyone who gets arrested.