As has been discussed in the previous two articles, the practice of jury nullification has a historic basis that predates our own Constitution. That there exists a power to nullify seems to be without question; however, opinions vary as to whether or not jurors have a right to nullify that requires an instruction from the bench and whether nullification is a “recipe for anarchy ”1 or a valuable check against government tyranny.
This article will look at the tactics used by a particular organization to advocate for nullification and will also explore whether it is wise to try to actively discourage the practice.
The latter debate is alive and well in part because of the activities of the Fully Informed Jury Association (FIJA). FIJA (regarded by many judges as a “nuisance ”2 ) perceives nullification as a constitutionally-mandated3 privilege and advances its position through its newsletter, website and leaflets distributed to prospective jurors. Founded in 1989 in Helmville, Montana, FIJA is a nonprofit association “dedicated to education of all Americans about their rights, powers and responsibilities as trial jurors.”4 The organization claims “about ”2,000 current paid subscribers at $25 per person, but advertises “tens of thousands of activists at the state level, in all 50 states.”5 FIJA ’s on-line “Activists ’Supply Shop ”offers a variety of t-shirts, posters, bumper stickers, videotapes, audiotapes and books on the topic of nullification.
The FIJA website also offers a “Trial Directory,“ an update on the status of current cases and defense fund listings. The Association is careful, however, not to advocate for a particular verdict: “FIJA [does not ]take a stand on the guilt or innocence of any party, or upon the merits of the law or laws which the defendant [sic] has been charged with violating. FIJA provides these descriptions as examples of cases where juries might wish to judge the law itself ...”6
Spokesmen for FIJA advocate nullification as an important check to legislative power and the jury as an Article III “fourth branch ”7 of the government: Legislation, being the last pronouncement of the community standard by our General Assembly, is sometimes out of step or behind the times, since the community standard is forever evolving. Fully informed jurors, by their verdicts, send legislators non-political democratic feedback about the laws they have enacted, which is essential for the proper functioning of our constitutional Republic.8
FIJA has found a rallying cause in the recent case of Laura Kriho, a Colorado juror who was found in contempt for allegedly misleading the court about her attitudes toward drug use during voir dire.9 FIJA ’s position is that Kriho was convicted not for her comments during questioning of prospective jurors, but rather for her attempt to nullify the law.
In his contempt ruling, District Judge Henry E. Nieto denied that the case was about jury nullification:
No juror can be punished for their [sic] vote in deciding a case. Even if the juror’s vote amounts to jury nullification and flies in the face of the evidence and the law, they cannot be punished in any way. However, if a juror deliberately misleads the court and the attorneys during jury selection with the intent to obstruct the legal process, it is a totally different situation.10Nieto continues, though, with a condemnation of jury nullification:
If the jury can, as a matter or right, acquit in the face of contrary evidence and law, could they not also convict, flying in the face of evidence and law? A system which allows jurors, as a matter of right, to pick and choose among the rules of law which they will apply, has extremely dangerous implications…11In April,1999,the Colorado Court of Appeals found that, Nieto’s denial notwithstanding, the Kriho case was, in fact, about jury nullification and reversed the lower court.12 Judge Sandra Rothenberg, writing for the majority, stated that Kriho’s conviction should be reversed because the court should not have considered any evidence from jury room deliberations.
We … adopt the conclusion … that the secrecy of jury deliberations is a “core principle” in the American system of justice, that excursions into the jury deliberation process are anathema to our system, and that jury secrecy may be invaded only under the most carefully delineated circumstances.13In response to the Kriho case, various writers have criticized efforts to prosecute nullifiers as a violation not only of the secrecy of jury deliberations but also of the privacy of a juror ’s thought processes. A 1997 editorial in the Rocky Mountain News condemned Kriho’s contempt conviction:
[I]t’s not the business of the court to ascertain jurors’ political philosophies. When you command their appearance, you should take what you get and be grateful for it.… . But lawyers and judges seem to prefer Know-Nothings, blank slates who neither read nor think, uncritical accepters of the status quo … Nieto seems to be creating a new legal duty in which a juror is obliged to confess not only to past deeds but to current thought crimes… . It goes against the whole concept of the jury to purge it of those who are critical of the government and some of its laws. That’s why juries were created in the first place – to be a check on runaway government.14No less respected an authority than the Los Angeles Times argued that a contempt finding would have more to do with Kriho’s political attitudes than her actions:
Kriho may not have been on trial for her beliefs. But if she’d revealed them she would never have gotten on a jury, and that is the crux of the matter. Lawyers and judges use voir dire to weed out not only biased jurors but also those distinctly rich with conviction, knowledge, education and will. For the most part, lawyers on both sides want malleable blank slates, not people who read newspapers and attend meetings and sign petitions. If juries represent the voice of the community, it’s only a slice, carefully carved.15Given the issues at stake – the importance of empanelling as impartial a jury as possible and the sanctity of secret deliberations – should judges actively discourage nullification? Should they attempt to control nullification advocates?
One author advocates a “neutral ”approach to “resolv[ing] the growing tension between nullification protestors or leafleters and the judges whose power these advocates hope to undermine.”16 The author suggests that time,place and manner considerations relevant to the First Amendment should be taken into account when judges attempt to curtail the activities of such organizations as FIJA:
Although jurors must be protected from intimidation and influence while they are serving as jurors, they must not be shielded, before they are called upon to serve, from debate about the role of the jury and the decisions juries must make.17A cautious approach to dealing with the nullification issue is appropriate while jurors are in deliberation as well:
If jurors know that the judge will scrutinize their deliberations, remove them from the jury, and even sanction them for misstatements, they may avoid discussing matters they mistakenly believe are off limits.18In the end, perhaps jury nullification should be regarded as a necessary evil. “The question is not whether the particular message [of nullification advocates] is accurate, or even lawful, but whether it poses a sufficiently high risk of actually influencing jury behavior ….Jury nullification is not protected by the Constitution as an independent good, but rather, is tolerated as a by-product of the careful defense of other fundamental values.”19
2 Nancy King, Silencing Nullification Advocacy Inside the Jury Room and Outside the Courtroom,65 U.Chi.L.Rev.433 (1998).
3 Ibid. Scholars have suggested that the Constitution protects the practice of nullification. Supporters of nullification look to three definitions of nullification as justification for Constitutional defense: as an unstated “fundamental right;” as a function of the Sixth Amendment and the right to trial by jury; or as related to the Article III separation of powers.
4 Fully Informed Jury Association website (www.fija.org).
5 Ibid.
6 Ibid.
7 King, supra,n.2.
8 R.J. Tavel, J.D.,Indiana State Coordinator, FIJA,Amicus Curiae Brief re: Indiana Constitution,Article I, Section 19.
9 People v. Kriho,996 P.2d 158.
10 Ibid.
11 Ibid.
12 Colorado Court of Appeals #97CA0700.
13 Ibid. However, in the dissenting opinion, Judge Kapelke writes,“[U]nder Clark [ v. United States ,289 U.S.1 (1933)]...there is no absolute bar to admission or consideration of evidence in juror deliberations in a later proceeding concerning alleged juror contempt. Rather, the Court stated in Clark that there first has to be a prima facie presentation sufficient to show the court ‘that the light should be let in.’…Here, the trial court in its written findings determined that such a prima facie showing had been made ….While Kriho could not be punished for her statements in deliberations or for how she voted as a juror, she could be found in contempt – as she was – for obstruction of justice stemming from her deliberate failure to disclose critically pertinent information on voir dire. Accordingly, I would affirm the trial court’s contempt order.”
14 Rocky Mountain News, Saturday, February 15,1997, p.56A.
15 Barry Siegel, “Holdout Juror Accused of Criminal Contempt,” Los Angeles Times, Tuesday, February 4,1997
16 King, supra,n.2.
17 Ibid. (Emphasis added.)
18 Ibid.
19 Ibid.
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