FIJA Q&A: Jury Nullification Instructions in Particular Trials
I've received some variation of this question many times over the years, but most recently, someone wrote to ask it with respect to the January 6 trials. My answer is pretty much the same as it would be in other cases, though, so I will answer it generally here as well as with respect to the particular cases in question. The gist of the question is:
Have the January 6 defendants (or substitute in other defendants of interest) been receiving a jury nullification instruction?
Thank you for the question.
I do generally keep an eye out for this sort of thing, but I rarely have anything to report. And there is a reason for that, as you will soon see.
In the January 6 cases in particular, I have not heard of any jury nullification instructions being given in these cases. Those who have been in the courtrooms in these trials, such as the defense attorneys might have other information. You might reach out to some of them to find out for sure.
I can say, though, that in my experience, it would be highly, highly unlikely that such instructions were given. That is because accurate jury nullification instructions are not given in almost ANY any trial in the United States. The government has virtually no incentive to fully inform jurors and has great incentive to keep them off of juries.
Think about it. If you are a judge, you are most likely a former prosecutor. You have almost certainly risen int he ranks through a culture of coercion and force, winning at almost any cost, cheating people out of their supposedly guaranteed rights, and punishing people unduly harshly—even those who are factually innocent. You are now top dog in the courtroom. Or at least you sit on your chair hovering above everyone and looking down on them. But in terms of power, you do have rivals—those pesky 6 to 12 people in that box off to the side who, for any reason they see fit, can let the people dragged into your courtroom go free.
These rivals of yours can decide the person the government is accusing is factually innocent. They can decide that they may not be innocent but it has not been proved beyond reasonable doubt that they are guilty. And, horrors! They can even decide to show mercy to someone they believe HAS been proved to have broken the law. They don't have buy into the culture of coercion and force, of might over right, of violating Constitutional rights as a ho hum matter of daily business, or needlessly punishing people for no good reason.
Gah! Are you really going to go out of your way to tell them about that last option when higher courts all the way up to the Supreme Court have told you that you need not do so? No. Probably you are not. You're going to preserve your stranglehold over them to the greatest extent you can get away with. Best to keep them in their little place, you think, lest they realize they and not you are actually the most powerful people in the courtroom.
In the rare case where some form of jury nullification instructions are given, they are almost always falsely instructing jurors against engaging in it.
That is why the Fully Informed Jury Association exists. Instead of trying to get the government to properly instruct jurors, which it has no incentive whatsoever to do, we provide accurate information directly to members of the public who will one day serve as jurors. We work to prepare folks before they ever get to the courthouse so they can confidently deliver just verdicts, regardless of faulty jury instructions.
If you or someone you know is called for jury duty, I highly recommend checking out or sharing our guide to jury duty for fully informed jurors. The shortcut link, if you want to copy and paste it, is:
Kirsten C. Tynan
Fully Informed Jury Association