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Why FIJA Educates Rather than Lobbies

Why FIJA Educates Rather than Lobbies

by Kirsten C. Tynan
Executive Director

Once people learn about the power of fully informed jurors to protect individuals’ rights and liberties by conscientious use of jury nullification, they often want to make sure every person seated on the jury knows this information as well. To that end, it is very common for people’s thoughts to turn to the usual: “There oughta be a law!” 

The law they have in mind usually has to do with requiring the judge to include some sort of statement in the jury instructions explaining the concept of jury nullification as a third option that jurors have the right to exercise.

I sure can appreciate the sentiment behind that. If it were a simple matter of passing a few laws and being done with it, that would certainly make things a lot easier! We could just get that done, the Fully Informed Jury Association could close up shop, and we could all go work on something else important, resting assured that the government would unfailingly and accurately educate people on jury nullification at the most relevant moment.

But does that really sound realistic to you? This government that has gone to incredible lengths to hide from jurors any hint of their right to engage in jury nullification will suddenly mend its ways and accurately and thoroughly inform jurors once there is a(nother) law? 

If it does seem plausible to you, please read on as I share with you my observations of the history of jury nullification legislation and law and how its codification in law has played out when people have tried to use it.

In the more than three decades of the FIJA’s existence, numerous attempts have been made in various states to pass a bill that would require (or at least allow) information about jury nullification to be provided to jurors. Though these attempts reflect noble intentions and a great deal of effort, such attempts have historically failed.

When I first started working with FIJA, my heart fluttered each time I saw such a bill introduced, get past committee, and even on occasion pass one of the houses in a state legislature. After seeing this scenario play out over and over, that is no longer the case.

I am aware of a single jury nullification bill since FIJA was founded that has been passed by a legislature and was signed into law. At the time that bill was being shepherded through the legislative process in New Hampshire, it was widely being discussed as and understood to be a jury nullification bill. Shortly after it went into effect, however, the New Hampshire Supreme Court unanimously (and let’s politely say “creatively”) ruled (.pdf) that this law had nothing to do with jury nullification after all:

"In conclusion, although RSA 519:23-a requires the trial court to allow the defendant "to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy," it does not require the court to allow the defendant to inform the jury that it has the right to judge the law or the right to ignore the law. In other words, it is not a jury nullification statute."

But we don’t have to look just at statutory law to understand that jury nullification legislation is not fruitful. A number of states have jury nullification written into their constitutions. And yet, where do we see this being argued openly in court? 

Judges regularly grant preventive motions in limine requested by prosecutors to forestall even the vaguest hint, let alone clear and accurate explanation of jury nullification, to the jury. They will also quickly shut down any attorney who tries to argue for jury nullification and go to extensive lengths to bully and intimidate jurors out of exercising their right of jury nullification—even to the point of outright lying about jurors’ full authority and array of options.

I’m aware of a single attorney in Georgia who has from time to time successfully brought up the guarantee in that state’s constitution that “the jury shall be the judges of the law and the facts.” Even in those trials, she has gotten pushback from the judges who try to counteract the effect of this by scolding her in front of the jury. 

That is just about the best case scenario—and it is very rare. I know of no other attorney who so openly takes cases to court with a jury nullification strategy in mind. 

More typically, I have come to expect things like what happened in Maryland in January of 2021.

Maryland has explicit provisions in its state constitution guaranteeing that jurors may engage in jury nullification:

First, in Article 5 of its Declaration of Rights it explicitly guarantees trial by jury “according to the course of [English Common] Law”—which included the right of jury nullification:

“That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on the first day of June, eighteen hundred and sixty-seven; except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.”

But it gets even more explicit in Article 23 of the Declaration of Rights, which spells out that:

“In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.”

What this provision says is that the only time the Court can overrule the jury’s judgment of the law and facts is to err on the side of liberty for the accused if the Court feels the evidence does not support that guilt has been proven beyond reasonable doubt. Otherwise, in “all criminal cases”, the jury’s judgment is supposed to carry the day, not only regarding the facts of the case, but the law as well. This includes when jurors temper the law with mercy and engage in jury nullification.

This was actually tested recently in Maryland in a trial where a jury explicitly asked a judge three times about jury nullification. In response to these questions, the judge in the case repeatedly told the jury such things as:

  • that their verdict must be based on the evidence as they found it, 
  • that they must apply the law as the judge explained it to them (i.e. they were NOT to judge the law for themselves), 
  • that a jury cannot engage in jury nullification, 
  • that jury nullification is improper and contrary to the law, 
  • that they would would violate their oath if they engaged in jury nullification, and
  • that jury nullification would violate the court’s order.

Many of these outright lies were appropriately rebuked by Maryland’s Court of Special Appeals in 2020 (.pdf) with reversals of the convictions in those cases, but the Maryland Court of Appeals (the highest appeals court in Maryland analogous to supreme courts in other states) then reversed that ruling in early 2021.

In light of the Maryland state constitution passages I cited earlier, their unanimous opinion crosses the vast desert of dishonesty all the way to border on gaslighting (.pdf):

“We hold that, despite the circumstance that jury nullification occurs, jury nullification is not authorized in Maryland and a jury does not have a right to engage in jury nullification. No case, statute, or rule in Maryland authorizes or gives juries the right to engage in jury nullification, i.e., there is no grant of authority permitting a jury to nullify. Rather, Maryland case law makes clear that it is improper for an attorney to argue jury nullification to a jury, and that jury instructions on the law are binding and trial courts must advise juries as much.“

This opinion gained the support of six of the seven highest judges in the state of Maryland’s judicial system. 

Even the lone dissenting judge (.pdf) hesitated to go so far as to refer to this constitutionally-guaranteed right as a “right”, instead repeatedly referring to it as a “power”:

“The trial court denied the jury’s power of nullification at a pivotal moment in the trial. The jury sent several notes reflecting that it struggled to reach consensus. The jury asked the court, “[d]o we have the right to use jury nullification of a charge?” An hour later, the jury asked, “can you answer the jury nullification question with a yes or no response?” The trial court responded with an incorrect statement of law, “the answer is no, you can’t have jury nullification.”

By stating that the jury cannot resort to jury nullification, the trial court’s instruction disregarded the recognized power of juries to nullify verdicts in Maryland. The instruction conflated the jury’s obligation to render a verdict and obey court instructions with its fundamental power to nullify. A jury can nullify a verdict, notwithstanding the trial court’s binding instruction to apply the law as given.”

She also took care to provide for future courts alternate ways of misleading jurors that she felt would pass legal muster:

“A trial court abuses its discretion when it incorrectly states the law in a jury instruction... 

The trial court could have avoided misstating the law by not commenting on whether the jury can resort to nullification. The trial court could have encouraged the jury to continue deliberating without having to explore the subject of nullification. Alternatively, the trial court could have reemphasized to the jury that they must apply the law as provided by the trial court and they are not legally authorized to disobey the trial court’s instructions. If the jury nonetheless decides to exercise the power of nullification, the trial court has not articulated an incorrect statement of law, nor has it sanctioned the practice.”

The simple facts are that:

  1. the government has no incentive to tell jurors that laws the government has put in place and uses to oppress us need not be enforced, and 
  2. the government is suffering from no shortage of liars who will bend over backwards not to enforce the law—as the cases of New Hampshire and Maryland so sadly illustrate.

If government will not properly enforce laws attempting to fully and accurately inform jurors about their right of jury nullification—not even explicit codifications in their constitutions—what good is yet another law of this kind?

This is why FIJA exists as an educational organization rather than a legislative advocacy one. There is no point in endlessly beating our heads against capitol and courthouse doors kept firmly shut against us by government gatekeepers. Instead, FIJA meets the people who will one day serve as jurors, literally and figuratively, in the public square. 

Volunteers around the country share jury nullification information outside of courthouses and are even going door to door in an effort to establish the first ever Fully Informed County where a jury can’t be seated without fully informed jurors. Our donors make it possible to provide the public a wealth of documented information on our website, via social media, and through other platforms such as this one. Their support has made it possible for us to develop and conduct training to teach people how to deal with juror oaths, survive the process of jury selection, and participate in deliberations without being removed for considering jury nullification. We offer the public free access to vetted speakers, webinars with experts on in-depth topics, and much more.

Perhaps you see value in both legislative and educational approaches here. I once did, too. One might imagine that they are not mutually exclusive, so why not do both?

In my time with FIJA, I’ve realized that loss after loss after loss on jury nullification legislation in particular has a uniquely detrimental effect on the educational outreach that we conduct. Many people are under the false impression that the only rights they have are ones that the government gives them by codifying them into law. Therefore, they presume, if I do not produce before them a law that explicitly says “jurors are allowed to engage in jury nullification”, then it must be illegal.

Just like it is illegal to wear a red hat on Sunday if there is no statute that says “no person shall be punished for wearing a red hat on Sunday”.

Oh, wait... That’s not how it works after all, is it? But for some reason I don’t fully understand, it is much harder for people to recognize that jury nullification is no different in this regard than wearing red hats on Sunday.

I’m sure it has something to do with the increasingly intimidating oaths people are required to swear to in order to serve on a jury and the misleading statements and outright lies being injected into jury instructions. That’s not all, though. I get this same pushback from people who have never even been in a courthouse.

Regardless, the effect I’ve seen over the years is that when people see that a jury nullification bill was proposed but did not pass, they often walk away under the false impression that they cannot use jury nullification because it is not in the law yet. And with them walks away some unfortunate defendant’s chance that a hero juror will stand up for them against malicious prosecution.

My impression is that on balance it is counterproductive to have legislative advocacy of this type undercutting much more effective educational efforts. 

I don’t see government action being an effective avenue any time soon (or possibly ever) for ensuring jurors are fully informed about jury nullification. But there are a lot changes needed to support jury nullification that will depend on a legislative or policy fix. Better still—it is likely that these changes would find bipartisan support in today’s setting of criminal justice reform. 

In the coming weeks, I will share a series of educational notes detailing several possible areas in which legislative or policy action could potentially be fruitful right now and how reform in these areas would support accused people having access to fully informed jurors when they need them. Those who have had a legislative or policy solution for jury nullification education on their minds might consider redirecting their efforts to these areas.