If I conscientiously acquit, can I legally be punished?
In short, it is not legal to punish a juror for their verdict. This well-established principle of trial by jury has been the case in the American legal system since its inception and, preceding it, English common law since Bushel's case in 1670.
This has been upheld in practice. Very rarely, there have been attempts made by displeased government officials such as judges or prosecutors to punish people who openly indicated they were considering conscientiously acquitting. We are aware of only two documented examples, which we will discuss below. Both cases ended with the government failing to make any sort of legal punishment stick. Moreover, both cases depended on jurors having openly discussed the possibility of conscientious acquittal with their fellow jurors—something that is easily avoided by simply voting your conscience without discussing your conscientious objections or the possibility of nullification.
Laura Kriho was the lone, holdout juror in the drug-related case of People v. Brannon in Colorado. She was initially charged with three counts of contempt of court after a fellow juror wrote a note to Gilpin County District Court Judge Kenneth Barnhill complaining about her deliberations and asking that she be replaced by an alternate juror. By this time, however, the judge had dismissed the alternates and instead declared a mistrial. Two months later, Kriho was initially charged for:
1. failing to volunteer information that was not directly asked for during voir dire,
2. informing fellow jurors about what she learned online regarding the potential punishment if they convicted the defendant, and
3. trying to persuade fellow jurors to nullify one of the charges against the defendant.
The second and third charges against her—including the one for discussing nullification—were withdrawn by the prosecution. She received no legal punishment whatsoever for them. Further, her conviction on the single remaining count was overturned in 1999 by an appeals court. Kriho’s attorney, Paul Grant, point out that, “You have to go back to [the trial of William Penn in] 1670 to find a case in which the judge tried to punish jurors for returning a verdict he didn’t like.”
Since the Kriho case, we have only been able to confirm one other case in which a juror faced a serious possibility of being punished for her verdict—the 2005 prosecution of juror Carol Asher.
Asher was one of four jurors who maintained a Not Guilty vote in the prosecution of William Edward Clark, prosecuted in the state of Idaho over .15 of a gram of meth, the street value of which was in the neighborhood of $5. The evidence was found in a company vehicle which was not owned by Clark and which was used by many people. Asher pointed out that no evidence was ever presented which linked Clark to the drugs. In addition to the lack of evidence, Asher further had doubts about the legality of the search being performed without a warrant and without the defendant’s consent and mentioned this during deliberations. The jury foreman, she says, argued that the judge had already ruled that the search was legal and that the jurors could not consider that. According to Asher, she and the jury foreman had a different understanding about what their purpose was, with the foreman insisting they were to not to impede the state’s power and Asher arguing that their role was to uphold the law rather than to rubber-stamp the prosecution.
In the course of deliberations, Asher mentioned that she answered to a higher authority than just the judge and was bound by her conscience to render a just verdict, to which the jury foreman reportedly responded that she could be charged with perjury. In the end, the jury remained split and a mistrial resulted, upon which time the jury foreman reportedly tattled to the judge about Asher’s comments during deliberations. Despite three other jurors also agreeing the defendant was not guilty, Asher alone was subsequently prosecuted for felony perjury, putting her at risk for up to 14 years in prison. Asher’s case never made it to trial. Rather, it was hastily dismissed in early 2006 after an evidentiary hearing.
So what is the big picture here? In nearly two decades, there are just two jurors that we are aware of being prosecuted for their verdicts. Both prosecutions failed and courts continued to uphold the long-standing tenet of our legal system that jurors cannot be punished for their verdicts. That means that still today jurors cannot be formally punished for their verdicts. The risk of de facto punishment in the form of having to fight malicious legal charges is extremely low. This is true even for jurors who openly discuss jury nullification and matters of conscience, though you can essentially eliminate even this small risk by not disclosing jury nullification as a possible reason for your verdict.
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