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Model Legislation

Model Legislation

 

Why FIJA's Mission is Educational, Not Legislative

While it is understandable that people optimistically hope they can get some legislation enacted to fully inform people about jurors' right to show mercy via jury nullifcation and then the job will be done, that is not, in our experience, proving to be realistic. That is why the Fully Informed Jury Association exists as an educational organization and not a legislative advocacy organization.

In our experience, on the rare occasion since FIJA was formed that jury nullification-related legislation has been able to pass a legislative chamber or, just once, when it was actually signed into law, it is generally done so by watering it down to the point that it is unenforceable, easily circumvented, or otherwise ineffective. This proved to be the case, for example, in New Hampshire, where the state's supreme court gutted the what was intended to be jury nullification legislation by unanimously ruling that it was merely a restatement of the law as it stood before the bill was passed and made no substantive change. Unfortunately, even many years after this legislation was essentially voided by the state supreme court, we are STILL hearing from folks who are under the mistaken impression that legislation took care of fully informing New Hampshire juries about jury nullification and that no further education is needed.

That is not the only problem with trying to legislate fully informed juries. Every juror in every court in the United States ALREADY has the right to vote their conscience, including voting not guilty despite proof beyond reasonable doubt that the accused broke the law. When legislation is pushed to codify this and fails, we hear from many individuals who think since it was not passed, they must not be able to legally exercise jury nullification when seated on a jury. Why then, the thinkng seems to go, would legislation need to be passed if this is a right people already have? Surely, it must be that we do not yet have this right and have to wait for government to grant it to us. Thus, failed legislation (and these bills almost always fail to pass) can discourage people from exercising a right they already have and are legally able to use.

Finally, it is worth pointing out that even in states where it is explicitly codified in the highest state law—the state's own constitution—that jurors have the right to judge the law as well as the facts in the case before them, the courts think nothing of undermining it in practice. You can find a more extensive discussion on FIJA's Substack on Why FIJA Educates Instead of Lobbies, including details of a Maryland Supreme Court decision in recent years that undermined the protection of jury nullification that has long been codified in its own state constitution. 

But the bottom line is the same: the government does not now and never will have an incentive to fully and accurately inform us of our right to refuse to enforce the government's punishment schemes. 

 

Model Legislation Examples

For reasons explained above, FIJA's national office does not lobby for or otherwise promote legislation regarding jury nullification. As part of our educational mission, however, we do track and report on legislative efforts for informational purposes. The below examples of legislation are provided for those looking for model language for their own efforts to pass legislation or citizen initiatives as well as students participating in Congressional Debate competitions or other mock legislature activities.

 

Washington

In 1995, HJR 4205, a resolution for an amendment to the Washington state constitution regarding jury nullification, was introduced in the Washington legislature. This language is included in former Washington State Supreme Court Justice William Goodloe's essay Jury Nullification: Empowering the Jury as the Fourth Branch of Government, printed and distributed by FIJA. 

HJR 4205

BE IT RESOLVED, BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE STATE OF WASHINGTON, IN LEGISLATIVE SESSION ASSEMBLED:

THAT, At the next general election to be held in this state there shall be submitted to the qualified voters of the state for their approval and ratification, or rejection, an amendment to Article IV, section 16 of the Constitution of the state of Washington to read as follows:

Article IV, section 16. (1) Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law, except as provided in subsection (2) of this section.

(2) An accused or aggrieved party’s right to trial by jury, in all instances where the government or any of its agencies is an opposing party, includes the right to inform the jurors of their power to judge the law as well as the evidence, and to vote on the verdict according to conscience.

This right shall not be infringed by any statute, juror oath, court order, or procedure or practice of the court, including the use of any method of jury selection that could preclude or limit the empanelment of jurors willing to exercise this power. This right shall not be infringed by preventing any party to the trial, once the jurors have been informed of their powers, from presenting arguments to the jury that may pertain to issues of law and conscience, including (a) the merit, intent, constitutionality, or applicability of the law in the instant case; (b) the motives, moral perspective, or circumstances of the accused or aggrieved party; (c) the degree and direction of guilt or actual harm done; or (d) the sanctions that may be applied to the losing party.

Failure to allow the accused or aggrieved party or counsel for that party to so inform the jury shall be grounds for mistrial and another trial by jury.

BE IT FURTHER RESOLVED, That the secretary of state shall cause notice of the foregoing constitutional amendment to be published at least four times during the four weeks next preceding the election in every legal newspaper in the state.

For those who wish to include specific jury instructions in the text of proposed legislation, we share the following jury nullification instruction for trial judges to give to juries, proposed by former Washington State Supreme Court Justice William Goodloe:

You are instructed that this being a criminal case, you are the exclusive judges of the evidence, the credibility of the witnesses and the weight to be given to their testimony, and you have a right also to determine the law in the case. The court does not intend to express any opinion concerng the weight of the evidence, but it is the duty of the court to advise you as to the law, and it is your duty to consider the instructions of the court; yet in your decision upon the merits of the case you have a right to determine for yourselves the law as well as the facts by which your verdict shall be governed.

It is your duty to reconcile the statements of witnesses so as to give credence to all of the testimony, if you can, on the theory that the defendant is innocent; but if you cannot do this on account of contradictions, then upon you rests the responsibility of determining whom you will or will not believe.

You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. In determining the credit to be given any witness you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.

From all of the evidence, you wll determine the guilt or innocence of the defendant, and make your verdict accordingly.

Utah

Legislative language promoted by the Libertas Institute in Utah in a public policy brief entitled Ensuring Justice through Juror Discretion included two proposals. One proposal would have created an affirmative defense with proposed language as follows:

It is an affirmative defense to prosecution for any crime that the application of a law or the law itself may be considered by a jury to be unjust.

A second proposal they offered was to fully inform jurors of the potential consequences of their guilty verdicts. They suggested the following language to do so:

The defendant’s right to trial by jury includes jurors who are instructed, upon the request of either party, of the potential sentence faced by the defendant for each alleged offense. This right may not be infringed by any statute, juror oath, court order, or procedure or practice of the court.

They also supported HB 332 along these lines in Utah's 2017 General Session which would have modified provisions related to criminal procedures such that:

 1. In criminal prosecutions the defendant is entitled to have a jury that is informed of:

  •  the potential sentence and direct legal consequences of a guilty verdict; and
  •  the jury's power to find a defendant not guilty when a guilty verdict would be manifestly unjust.

2. The jury shall be informed of:

  •  the potential sentence and direct legal consequences of a guilty verdict; and
  • the jury's power to find a defendant not guilty when a guilty verdict would be manifestly unjust.

This legislation did not pass the House.