Juries

Jury Nullification: The Current State of the Law

Louisa Heiny

Abstract

In 2018, the Utah legislature considered a proposed bill that would have explicitly granted jurors the right to nullify in criminal cases. This research, done in preparation for committee testimony, contains the most up-to-date law on the topic. It includes a fifty-state survey on whether juries in various jurisdictions are (1) given the right to consider the possible sentencing penalty before rendering a verdict; (2) told they may disregard the law; or (3) instructed on the right to nullify. Additionally, the research includes fifty-state survey data on whether judges may lie to juries about the right to nullify, and how various jurisdictions treat attempts by outside organizations to notify potential jurors of their right to nullify.

Federal Judge Says Group can't hand out jury-nullification material at Denver court

US District Judge William Martinez on Thursday reversed a jury-nullification advocacy group's permission to pass out pamphlets outside a Denver courthouse. Martinez said the group was insulting judicial employees, and he also held Denver in contempt for not properly notifying its police officers of the injunction that had allowed the group to distribute pamphlets.

Courthouse News Service 

Radiolab Podcast on Jury Nullification

Here is the write-up on the podcast.

 

Today, a hidden power that is either the cornerstone of our democracy or a trapdoor to anarchy.

 

Should a juror be able to ignore the law? From a Quaker prayer meeting in the streets of London, to riots in the streets of LA, we trace the history of a quiet act of rebellion and struggle with how much power “we the people” should really have.

Produced by Matt Kielty and Tracie Hunte

Special thanks to Darryl K. Brown, professor of law at the University of Virginia, Andrew Leipold, professor of law at the University of Illinois, at Urbana-Champaign, Nancy King, professor of law at Vanderbilt University, Buzz Scherr law professor at University of New Hampshire, Eric Verlo and attorneys David Lane, Mark Sisto, David Kallman and Paul Grant. 

To access the podcast go here.

Jury Nullification in NH

New Hampshire has drawn one step closer to creating a new law requiring courts to inform "the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”  This week the New Hampshire state house passed (HB133) which reads, in part, as follows:

At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows:  “If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.  Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”

It remains to be seen if the New Hampshire state senate will go along with the house and approve this bill.  Last year, a similar bill did not make it out of the state senate. 

 

 

 

Injunction Allowing Jury Nullification Pamphleteering in front of Courthouse Affirmed by 10th Circuit

In Verlo v. Martinez, the 10th Circuit Court of Appeals upheld an injunction issued by a federal district court that struck down an earlier state court ban prohibiting peaceful pamphleteering in front of a Denver state courthouse.  The pamphlets in question informed the public and presumably potential jurors about jury nullification.  While the 3-judge panel ultimately held that the district court did not abuse its discretion in issuing a preliminary injunction, the appellate court reserved making a decision on whether a permanent injunction should issue.

 

WAPO Op-Ed Series on Jury Nullification

The Washington Post is running a series of Op-Ed articles on jury nullification.  The first article is available here.  Below is the line-up of writers who will be submitting articles. 

    Clay Conrad, criminal law attorney and author of “Jury Nullification: The Evolution of a Doctrine”

    David Neiwert, investigative journalist and writer for the Southern Poverty Law Center

    Paul Butler, Georgetown University  law professor

    Glenn Reynolds, University of Tennessee law professor

    Orin Kerr, George Washington University law professor

To access prior posts on jury nullification to include a post on the New Hampshire jury nullification bill that is currently under consideration in the state go here.

Jury Nullification Bill Advances in New Hampshire

Jury Nullification Bill Advances in New Hampshire

Last week the New Hampshire House of Representatives voted 184 to 145 to pass a bill (HB 1270) requiring courts to instruct jurors about juror nullification.  At present, defense attorneys in New Hampshire have the right to tell jurors about nullification.  This bill goes the next step and requires courts to instruct jurors about nullification.  The bill is provided below.

1  Findings.  The legislature finds that the New Hampshire Constitution, Part 1, Article 21 identifies trial by jury to be an inestimable privilege indicating its importance in the application of law and justice.  Furthermore, Part 1, Article 12 identifies a role of the people in approving law; the only location for this consent is the jury.

2  Jury Nullification.  RSA 519:23-a is repealed and reenacted to read as follows:

519:23-a  Jury Nullification.  In all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.  The jury instruction shall be as follows:  "The test you must use is this:  If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  If you find that the law does not apply to the proven facts of the case, you must find the defendant not guilty.  However, if you find, that the state has proved all of the elements of the offense charged beyond a reasonable doubt, but you find that based upon the facts of this case a guilty verdict will yield an unjust result, you may find the defendant not guilty."

To read more about the bill see the links below.

Wall Street Journal Blog: Just Say No: Jury Nullification Bill Advances in New Hampshire

Washington Post: Jury nullification instructions coming to New Hampshire?

New Hampshire Public Radio: N.H. Legal Explainer: What is Jury Nullification?

Jury Nullification and Marijuana

Clay Conrad has a very well written op-ed on jury nullification and the legalization of marijuana.  The premise of Conrad's argument is that through jury nullification citizens can informally legalize marijuana by acquitting those charged with low levels of possession.  Conrad, a practicing attorney and author of Jury Nullification: The Evolution of a Doctrine, has written extensively on the topic of nullification.

According to the article,

Jurors have the prerogative to take a broader view of their jobs, one more in line with the history and purpose of the institution of trial by jury. Jurors can take an active role in the administration of justice and apply that “warm, living public opinion” to determine whether to label one of their neighbors a criminal. In doing so, they just might save a morally innocent (albeit technically guilty) individual from an unjust conviction and save our prisons, probation officers and social workers the expense of dealing with one more unnecessarily shattered life.

Jury Nullification: Right vs. Power

The Chicago Tribune has an interesting editorial on jury nullification.  I like the article because it discusses the difference between the jury's power to nullify and the jury's right to nullify.  As of late, some are trying to convert this power into a right (go here for an example).

Chicago Tribune: The Dangers of Jury Nullification

 

Juror Nullification Bill Introduced in New Hampshire

New Hampshire Representative Frank Sapareto recently introduced legislation that requires jurors in a criminal trial to be told about nullification.  Specifically, HB1452 mandates that jurors be informed of the following:   

The concept of jury nullification is well established in this country. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

According to the legislation, failure to tell jurors this information would result in a mistrial.

For other posts related to juror nullification go here.  For other posts about juror nullification in the "Live, Free or Die" state go here.