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

Hammers are occasionally used to commit murder. That doesn't mean that a hammer should never be used for more appropriate purposes such as driving nails.

Anonymous

come back to me when a murder gets away with it because of jury nullification. Or a violent terrorists. Or a violent criminal.
Oh, wait, it has happened.
Jury nullification is illegal and is always wrong. Period.

Anonymous

By that logic, anything that is used for an unjust purpose should be illegal and banned, even if they have valid uses. Medical drugs, guns, food, cars, clothing, penises, water, capitalism, the justice system.... you name it. If it CAN be put to nefarious purposes let’s make it illegal.

Frdmftr

"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."
So? Blacks still survived the Jim Crow South and achieved the citizenship to which they were entitled. And the terrorists in the 60's were not acquitted because of jury nullification; they won on appeal because the prosecution was incompetent. And if "eco-terrorists" and "abortion bombers" were acquitted because of jury nullification, which I doubt, perhaps it was because in the specific case the "eco-terrorism" and/or "abortion bomber" was determined by the jury to be justified, but more likely it was because the prosecution failed to make its case. I was jury foreman on a murder case once, and we all believed the defendant committed the crime -- but we acquitted because the prosecution didn't prove its case: The witnesses for the prosecution were hop-heads and couldn't remember what year they witnessed the event, the prosecution could not produce the firearm used or even prove a chain of custody for it proving the defendant had a gun.

"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." Really? Then, Mr. Police Statist, tell us why we have a jury in the first place? Why not just let government crucify anyone it wants on the grounds that if government said so, it must be true? Why not let government pass any damned color of law it wants to on the grounds that the people have nothing to say about it once it has been legislated into law signed by the Governor or President? And as long as I am asking pertinent questions, why don't you move to Stalinist Russia where people get arrested and thrown in jail for purely political reasons?

Anonymous

Thank you for taking this case and for going public with this issue. Many of the abuses of the drug wars could have been lessened if more jurors were informed about nullification. Generally, courts suppress information on nullification and provide jurors instructions that give the impression that nullification is illegal.

Anonymous

I'm pretty sure you are only interested in jury nullification as long as left-wing identity groups are doing it.

Would you advocate white people using jury nullification to make a statement?

Considering the ACLU has defended the rights of nazis to march through jewish communities, I'd say yes. They are the American Civil Liberties Union. They go off the onld saying- "I may not agree with what you have to say, but I will defend to the death your right to say it". If it's a civil liberty, they defend it. They're diametrically opposed to the kind of one-sided protections that you're describing...

Clay S. Conrad

The claim that jury nullification was widely used to free racist murderers is false and ill-informed. The truth is that corrupt police officers, prosecutors and judges (themselves often with KKK ties) threw trials to the defense in such cases, then scapegoated the jury for the inevitable results. This both gave the Southern legal system credibility in the press, and provided cover for the prosecutors, police and judges involved.

How do we know this? First, we have transcripts of the trials - transcripts that I've read, but that few so critical of the jury have. We also have the simple fact that Federal trials for civil rights violations, in the same cases, almost unanimously ended in convictions, with different prosecutors, judges, and officers - but with juries drawn from the same communities.

How was it that the Federal cases ended one way, and the State cases another, even though both drew from the same jury pool? The obvious answer is that it wasn't the jury that made the difference, but the official actors in the State cases did not sincerely seek a conviction in the first place.

Ms. Gloria Anasyrma

If jury nullification makes America great again then I am all for it.

Anonymous

Jury nullification should be applied to any case involving California Prop 64. Any rule or regulation not spelled out in the Proposition at the time of the vote is vague and ambiguous by definition, and therefore unconstitutional. The power of the people under the California Constitution and propositions cannot be relegated back to the legislature anymore than we can vote to end democracy. BOYCOTT REGULATED CANNABIS

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