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.

View comments (51)
Read the Terms of Use

Anonymous

How is telling a jury about the law any different from reading someone their Miranda rights? You have to twist the logic around pretty badly - and then squint really hard - for the government's case to make any sense.

Anonymous

If we had more information about what cases were tried that day (or even the date so we could look it up ourselves) we might have answers to your questions.

Kieran

The inherent power of the jury to "nullify" the law in a particular case is inseperable from the jury's constitutional independence. Both derive from Bushell's Case (1670) in which the trial judge refused to accept verdicts of acquittal and locked the jury up until if returned "a verdict the court will accept." In a precedent setting appeal the verdicts were set aside as having been obtained in violation of the jury's independence.

The defendant? William Penn, the later founder of Pennsylvania. His crime? Preaching Quakerism in public. Was he guilty? Yes. It was definitely against the law, but the jury didn't care. Jury nullification is essential to freedom from legalized tyranny and oppression.

Anonymous

We don't have the same laws now as we did when we were British Colonies.

Nick

A rigged game is what the "judiciary" is in the good old USA. That said, ever heard of legal precedent? Common law comes from the days of the Magna Carta. That's a thousand years ago.

Mike Hill

The Constitution *does* permit the government to restrict speech when it has a compelling reason. For example, at attempt to influence a jury pool to an illegal position is within the government's interest. Jury nullification is an invalid concept in American jurisprudence, and these people were plainly lying to the jurors in order to obstruct justice. Defending them is a farce.

Anonymous

Jury trials and during all of the Quetion are both a vital component of keeping a row government in check thereby retaining the ultimate power in this country in We the People.

Johnny G

MikeHill, are you stupider than a cardboard brick, or a nazi or a RUMPHORROID - - but i repeat myself...

Tom Belmore

Mr. Hill, I am sure you are well educated on jury and free speech issues. However, so was a man named John Jay. As a matter of fact, the founders made him Chief Justice of the Supreme Court. He recognized the right of the jury “to determine the law as well as the facts” (which is jury nullification). He wvengave that as part of his instructions to the jury. But I am sure you are more knowledgeable than he. Or maybe not.

Clay S. Conrad

The Founders would certainly not agree with Mike Hill.

Perhaps one of the most interesting things I discovered in researching this issue (as I have, at length) is that the term "jury" was defined, in legal dictionaries of the late 1700's, as - in criminal cases - having the authority to judge both law and facts.

Remember that this was in an era in which natural law doctrine was widely accepted, so judging the law meant judging the justice of the law.

In fact, the ONLY Supreme Court Justice ever impeached, S. Chase, was impeached in part for DENYING juries the right to judge the law. His rebuttal? He stated that he never doubted the right of juries to judge the law, and that he'd never contradicted or contracted that right in any way.

Jury Nullification has a proud background, stretching back at least to the days of Magna Charta. Prohibition was ended after as many as 2/3 of juries refused to convict. The Civil War began when Northern juries refused to enforce the Fugitive Slave Act of 1850, and Slavery ended in MA when juries refused to recognize property rights in slaves. The Battered Spouse Defense was recognized by juries long before it was recognized by courts.

The list goes on and on. The jury has a legitimate role to play as the Conscience of the Community, and much of the division in our country stems from our refusal to listen to that voice.

Pages

Stay Informed