It’s Perfectly Constitutional to Talk About Jury Nullification

Eric Patrick Brandt and Mark Iannicelli were handing out pamphlets outside a Denver courthouse in July 2015. They wanted to inform the public about jury nullification — that is, the power of jurors to vote against convicting criminal defendants under laws that the jurors believe are unjust.

Brandt and Iannicelli were trying to participate in a centuries-old and still-thriving discussion. The pamphlets they were handing out included statements such as:

  • “Juror nullification is your right to refuse to enforce bad laws and bad prosecutions.”
  • “Once you know your rights and powers, you can veto bad laws and hang the jury.”
  • “So, when it’s your turn to serve, be aware: 1. You may, and should, vote your conscience; 2. You cannot be forced to obey a ‘juror’s oath’; 3. You have the right to ‘hang’ the jury with your vote if you cannot agree with other jurors.”

But the two activists’ attempts to educate the public led to their arrest. Brandt and Iannicelli were each charged with seven counts of criminal jury tampering under a Colorado law that bars any person from communicating with a juror with the intent to influence the juror’s vote in a case.

On Tuesday, we filed a friend-of-the-court brief in the Colorado Supreme Court arguing that the application of the jury tampering law to Brandt and Iannicelli’s pamphleting is an unconstitutional restraint of speech.

The most essential function of the First Amendment right to free speech is to protect discussion and debate over government affairs and public issues. From access to effective counsel to the selective enforcement of criminal laws, the criminal justice system and the way criminal trials are conducted are quintessential matters of public concern.

The role and power of juries, in particular, have been subjects of debate and discussion since before the founding of the republic. English courts first recognized the jury’s power to acquit a criminal defendant — even when the weight of the evidence points to the defendant’s guilt — in 1670. Juries in colonial America used jury nullification to protest the power of the British Parliament over the colonies, and Alexander Hamilton, John Adams, and prominent judges in the early days of the nation all believed that jurors had a duty to vote their conscience regardless of the evidence.

Important discussions about jury nullification aren’t limited to lawyers and scholars. Different views about the topic have popped up in popular articles, podcasts, lifestyle blogs, and advice columns. This isn’t surprising: Jury service is the most intimate interaction with the criminal justice system that many people ever experience, and many individuals completing jury duty may find themselves in the difficult position of having to apply a law that they believe is unfair or immoral.

Nullification often occurs today where people are prosecuted under draconian drug laws for low-level drug offenses or face harsh mandatory sentences. Historically, jurors have acquitted against the weight of the evidence in cases against Vietnam War protesters charged with destroying draft files and in Fugitive Slave Act prosecutions against escaped slaves and individuals who aided them.

Of course, the state can and should prevent individuals from intentionally tampering with a jury in the hopes of influencing the outcome of a specific case. But far from trying to tamper with any particular case, Brandt and Iannicelli sought to educate all jurors — including potential jurors — about the concept of jury nullification. Courts have recognized that such advocacy is protected by the First Amendment.

Troublingly, the government’s argument that Brandt’s and Iannicelli’s speech was criminal jury tampering could extend to almost any statement advocating jury nullification that a juror might see, from a newspaper op-ed to a tweet.

The government may prefer a jury pool that has never heard about jury nullification. The Constitution, however, prohibits the government from banning speech that it doesn’t like. The public benefits when ideas — good or bad — are aired out. We all suffer when they’re criminalized into silence.

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Anonymous

How is it always wrong? Because morals are SUBJECTIVE. Letting jurors use THEIR own morals to decide whether laws should be upheld or not is unfair and trials must be fair. Jurors views of whether a particular law is "moral" will be influenced by their opinion of the accused and the victim. As in, the law is probably moral when applied to that stranger who is not part of my group but when it comes to applying it to a member of my group....maybe not so much because of extenuating circumstances. If the victim is from a group that the jurors have an unconscious bias of that's going to influence the jury too. If the accused is just plain ugly that will influence the jury, too - we all know that attractive people can get away with more. If the law is Unconstitutional, the defense attorney can, and should, argue that. You can also lobby your Congressional reps to change a law.

Robert Chase

Jury tampering refers to an attempt to sway a jury in a specific case, not to an attempt to inform potential jurors that they can and should vote their consciences, hang juries if they cannot agree with other members, and cannot be prosecuted for doing so. You fail to identify any element of what Eric Brandt and Mark Iannicelli communicated that is a lie; the content of the Fully Informed Jury Association's pamphlets is fully protected speech. If anyone is guilty of dishonesty, it is you for ignoring the history of the issue in American jurisprudence and falsely claiming that jury nullification is an invalid concept. Rather than permitting them even propose abrogating the First Amendment to stamp out jurors of conscience, we should instead destroy the fascists' criminal injustice system outright and start over. Anyone involved in their prosecution should be considered a public enemy.

Walter Sbresny

You must be a prosectutorial Supporter. Likely with the idea that if a person is in court there must be a valid reason because LAW ENFORCEMENT arrested them and they know what the law is. MIKE HILL YOU ARE AN IDIOT

Anonymous

There is no where in the constitution that I know of that prevents the jury from speaking out against government's case against an accused.. There is no such thing as American Jurisprudence, Americans have had no, absolutely no, say in how the court interprets the Constitution of the USA. All interpretation has been made under Article III in one way or another, Article III is the government.. Americans have never agreed to a rule that would allow the government to deny citizens Bill of Right Guarantees; therefore the rule you refer to is a USA rule (jurisprudence if you want to call it that). but it ain't acceptable to us Americans.
Amendment V, says No person shall be deprived of life, liberty or pursuit of happiness ..without due process.. informing and educating juries of their rights and duties to the accused in government challenges to a defendant's life, liberty or pursuit of happiness, is depriving by rule 1. the human rights of the accused, 2 the first amendment rights of the public, and 3. the duty of the jury to fully, proximately and accurately become prepared to execute the purpose of the Right to a Trial by Jury (since most courts refuse juries access to most evidence), due process cannot be just when Juries are rusty or uninformed about their duties and rights and obligations as Jurors.
"your comment that the Constitution denies the people when the government has a compelling reason, . is how judges appointed under the Constitution interpret the constitution, but no government has a reason sufficient to justify overriding human rights, because Human Rights are inalienable.. every citizen has the inalienable right (even the constitution cannot deny) to speak and the first Amendment clearly says Congress shall make no law.. prohibiting ..or bridging the freedom of speech, or the of the press.. (unless it was the intention of the Framers to trick the people by not including in the text that judges as well as congress cannot deny the First Amendment?) neither of the enumerated sources excluded talking to juries. . unless the government wants to admit the Bill of Rights is for show and the constitution claims its authority allows it to suppress human rights when convenient to government, it would seem to me passing out preprinted pamplets that inform juries about to hear a case of the rights and duties of Juries is both constitutionally protected, as well as a welcome refresher course for juries, because it allows juries to be educated and to become sufficiently aware to be sure the human rights of the accused are fully protected.

Jan Church McAlpine

Thank you for taking this case. An example of the reason I contribute to the ACLU.

Anonymous

What case? The were acquitted by a judge and an appellate judge and I didn't find any mention of it going any higher. It would be helpful if the case name had been included in thus rant but, unfortunately, the author was more interested in making a case for "jury nullification" than giving us the facts about the case.

Jan Church McAlpine

Thank you for taking this case. An example of the reason I contribute to the ACLU.

Anonymous

Jury nullification was also used to acquit white defendants when they committed crimes against blacks. And used to acquit people who committed terrorist acts. Like the terrorists in the 60's. And eco- terrorists. And abortion bombers.
There is nothing good about jury nullification. It is always wrong. Period. Telling people about jury nullification is not only spreading false information, it is an example of jury tampering.

Anonymous

How is jury nullification “always wrong” when there are so many laws today that directly violate the Constitutional restraints placed upon the federal and state governments? And the people who enforce these laws blatantly violate their oath to support the Constitution by enforcing such un-Constitutional laws?

Jury has the absolute power to debunk such laws. Through this power We the People retain the ultimate power in the United States.

Anonymous

It is ridiculous to say that jury nullification is always wrong. Governments routinely enact immoral, unjust, unnecessary and unconstitutional laws. Also, the USA is not a genuine democratic republic with all interest groups being equal. More often that not, big money interests prevail in the legislatures.

The appeals process to remove an unjust law takes years, even decades. Repealing unjust laws also takes years since law enforcement and corporate interests often profit from bad laws and prevent reforms. Jury nullification can protect the victims of unjust laws from paying an extremely high price (years of prison) for our government's bad decisions.

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