Jury Nullification as a Defendant

There has been much discussion the the SDMBs lately about jury nullification. As I was reading though them there is one think I was wondering about that doesn’t seem to be answered and my google fu for the query isn’t working. (I can’t think of specific non common terms for the question.)

If I were a defendant (I’ve never been to a hearing even. I’m pretty clean as far as my record is concerned) is there any way for me to tell the jury about their rights?

Say I am the defendant. Is it legal to either request or have my lawyer inform the jury? If not is there any way I could do it without it being struck from the record and told to be ignored by the judge? Is it within the Judges power to tell a jury to ignore a jurists right. Would I have to be on the stand? What if I chose to defend myself (I know it is usually not the best option :wink: ) could I tell the jury during my closing statement. Especially if I quoted a previous case.

There was one specific thread that got me wondering about this but I need to leave for a little while so I can't find the link but it was about a man being arrested for handing out pamphlets regarding this practice and many people believe that it would be tampering if he was doing it about a specific case but not if it had not single motivation.  Inside the courtroom during the case would it be allowed under any of these circumstances.  I have never heard or anyone using the "Jury Nullification DE-FENCE!!!"

I’m pretty sure you, as a defendant, are not allowed to directly tell the jury anything. Typically your attorney would let the judge know of your concern and the judge would decide whether the jury needed to be instructed.

I would think most judges would frown on this since it’s normally their job to instruct the jury on their rights and responsibilities.

No, lawyers and pro se defendants are not allowed to advise the jury that it is within their power to disregard the statute that the defendant is charged under and find the defendant not guilty against the weight of the evidence. You can only make legal arguments within the strictures of the jury charge, and judges as a rule do not allow anything regarding jury nullification into the jury charge. A clever lawyer can make that argument indirectly, but outright requesting that the jury disregard the criminal statute and find the defendant not guilty in spite of it will find an immediate objection from the prosecution and a stern admonishment from the judge.

Put it this way - if your attorney does tell the jury that, you aren’t the only one who is going to prison. He’d better have brought his toothbrush with him because you are going to be looking at one pissed off judge.

It’s not exactly that juries have a “right” to nullify- it’s that the courts and the government have very little legal recourse if they do. The government, whose prosecutors are certain someone is guilty of a crime, can’t punish a jury for refusing to return a guilty verdict without obviating the whole point of having a jury.

They can’t be punished-that much is true.

I think the best you can do is have your lawyer try to play to the jury’s sympathy, and convince them that your actions were normal and reasonable, with the implication that the law is unreasonable. But any overt statements to that effect or that the jury can ignore the legal statutes will be stepped on heavily by the judge before they get rolling.

So neither my attorney not I if I was were to defend myself in this mock case would be able to in for example closing statements where there is more leniency in how I am able to present the case would be able to say something like.

In Sparf vs US (156 US 51), the court ruled that although juries have the right to ignore a judge’s instructions on the law, they don’t have to be made aware of the right to do so.

Or even quote a supreme court ruling on the subject without it being stricken from the record. And if it was stricken from the record but since your can’t “unhear” something the jury decided to decide not guilty I could be imprisoned for quoting a supreme court ruling?

Not for the quote of coarse but for obstruction of justice I presume.

You could be held in contempt (assuming you were representing yourself). And I would think the prosecution if it asked for a mistrial would get one (this is guess work from a non-criminal lawyer).

You’d certainly get an outrageous instruction against you - the judge would make damn sure that the jury was told hundreds of times that they should disregard that, and the law and facts would be summed up in such a way by the judge that the only way the jury would acquit was by nullification.

On a trial where I was a juror, the Defense Attorney was clearly angling for the jury to do a nullification. His client was going up for his 3rd strike and the evidence was overwhelming, but after the defense attorney spent 3 hours hammering at the arresting officer, the judge finally called a 15 minute recess with the attorneys and came back and clarified that whether the officers had a right to stop and investigate the situation was being decided in a different court and that we were not allowed to take that into account in our deliberations. (This was when racial profiling was big news in NY/NJ a couple of years back.) Questions were like: Why did you stop? What were you planning on finding? If there were four guys hanging out in the neighborhood where you live, would you stop? At what point did you believe you were witnessing a crime? When did you believe with certainty that there was a crime? Was it possible to witness the crime from your car as you drove by?

So the defense never came out and asked for it, but they were certainly trying to lead us there. But in many ways it backfired as they basically said we don’t really have a defense and the defendant is absolutely guilty (ooh, except he should never have been caught.) So I would never advise someone to take the jury nullification approach; plead guilty, show remorse, and pay smaller consequences.

Again, it’s not that juries have a right to ignore the law, it’s that they can’t be punished if they ignore the law.

It really is a bad thing if juries ignore the law, as shown by the thousands of cases of juries refusing to convict white people who murdered black people. These jurors ignored the law. Did they have the right to do so? No they did not. Can they be punished for doing so? No, because otherwise we might as well do away with the jury system. If the jury is just a rubber stamp for the judge, we should be honest and exclusively have bench trials instead.

So even though an acquittal by a jury cannot be reviewed by a judge or prosecutor, that does not give a defense attorney the right to argue to the jury that they should ignore the law. An attorney is an officer of the court. They have a duty to uphold the law, and if they don’t like the law they should try to get the law changed, not tell people to ignore the law. So if an attorney enters a judge’s courtroom and argues to the jury that they should ignore the law, the judge is going to hold that attorney in contempt of court, and rightly so.

First I want to say thank you for the answers provided so far and that I am sorry about the long posts. I just have a lot of thoughts about this and a belief that it is wrong that we can’t become informed citizens about ANY relevant aspect of the law during court. I do not condone using this in situations like lynching etc but there are places where I disagree with the law or for example a situation where someone unknowingly broke a law in a situation where I wouldn’t have known it was illegal. How many things do you know of that a good that can’t be used for bad? Even love can be used for bad.

I find all of this amazing as I know of no other time when a lawyer on either side of a case is unable to present a previous precedent as long as it holds bearing on a case. I know precedent has been set about this in drug cases as I have read previously on the SD. Is this not considered persuasive precedence if it is a drug case? Why is this one aspect the only time in which previous rulings in a similar case dismissed outright other than the fact that it is frowned upon by judges.

While I was researching this I do see that the courts are able so say we can’t instruct and the defense cannot bring it up thus causing the judge to instruct the jury on nullification. As in all law there must be a loophole.

I see in one case U.S. v. Datcher that they were able to speak to the jury about possible sentencing length to try and cause “bleeding hearts” I guess but can’t bring up nullification specifically. It seems you can’t even quote the 6th amendment and the fact that England had this right and that is why we do.
The only way I can see around this quagmire would be to mention during voir dire for potential jurors whether they are aware or nullification. If there was enough people aware of this then the prosecution would be unable to strike them all and you would be able to pick at least one juror who is in the know about the practice and would be able to inform the others without the judge ever having to let the people know their right. (and I do see it as an actual right as in the 6th amendment the juror has a right to a general verdict.)

So instead or specifically entailing jury nullification would the defense be able to speak of the constitutional right to a general verdict and then to define general verdict as chosen solely by his/her peers. (without mentioning against the word of the law or judges instructions.)

Lastly although probably not the best case in point (pun intended). In closing statements would you be able to say something like "while controversial Jack Kevorkian was acquitted after in my opinion sufficient evidence was found that the law was violated. My defendant (in this fake case accused of murder for assisted suicide also) faces a similar charge and has signed documentation and psychological reports for his patient.
Would any of these ways that do not force the judge to instruct on jury nullification be a viable strategy. I would be willing to bet the prosecution would be able to ask about a jurors knowledge or jury nullification during voir dire to attempt to weed out people in the know. Why would it not be allowed for the defense.

I believe you’re reasoning from a false premise.

I wonder how long a country can last on a foundation of suggestions instead of a foundation of laws?

You do not argue case law or “precedent” to a jury. Juries determine facts based on the evidence presented to them in the particular case for which they are empaneled. Judges then apply the law to those facts. Legal arguments are addressed to the Judge, usually outside the presence of the jury.

You misunderstand the law. There is no law that says a jury can ignore the law. There is only a law that says a jury can’t be punished for finding a defendant not guilty.

As has been pointed out, that’s exactly how it has been used. You’re either okay with the concept of jury nullifcation knowing that’s one of the consequences, or you’re not.

If you disagree with a law you have the right peaceably to assemble, and to petition the Government for a redress of grievances.

DAMN. I finally found a resource that answered pretty much all my questions.
http://www.caught.net/juror.htm

My favorite suggestion was the voir dire argument but it seems that was tried to in 1993. I should have been born earlier so I could have been the first one to try it :slight_smile: . Of coarse then I would have had to become a lawyer.

I guess I will have to go to prison for my plan to disseminate leaflets informing people of their rights. I have no reason to believe I would ever need this to be applied to me as a defendant and would not put any information about any specific cases and would not do it in front of a courthouse, BUT I believe it is so un-American to restrict lawful knowledge pertaining to a case that I must. And judging from the previous cases of trying to inform communities of the law I would be brought to court over the fact that judges have judged that this can’t be said because then the judge has less power to judge what the jury is allowed to judge about the law and the person they are supposed to not be rubber stamping a verdict on.

All law is grey. There is no black and white. Of coarse there are going Let’s take a ludicrous but horrible example because I know some would say that some laws are black and white, good or evil etc. A law which I believe almost no one would say is unjust. Say Person 1 puts a gun to #2’s head and threatens to blow their brains out unless they rape person 3. (I do believe there is something other than nullification that would get 2 off the hook in this case but I can’t come up with a better scenario right now than the fear of being murdered) Cops can’t find 1 and prosecute 2. 2 is obviously guilty of the crime and even admits to it on the stand but he did so so that both 2 and 3 would live out their lives however scarred as I’m sure 2 would be as much of a wreck as 3. I seems wrong to not let the jury know that they don’t have to send someone to life in prison for something that was out of their control (I know some people would claim, while they aren’t under gunpoint, that they would just let the guy shoot them but number 2 does not want to die) but they can’t be told they don’t have to let the guy fry.

Again sorry about the grizzly anecdote but that’s about as black and white as well as just that I can see a law. IMO juries are there to determine the circumstances of the case as well as fact and decide a verdict based on the law as well as their morals.

As the question in my original post was answered I now know the truth. Any further comments I guess would be on whether or not people agree on whether or not juries SHOULD be told as well as whether we should return a verdict based in part on personal morals.

Is it fair to restate the quoted piece as “I’m not sure that my scenario is accurate, but if it were, that would suck”?

If so, I agree, but your inability to come up with an accurate hypothetical isn’t evidence of much. In fact, your misunderstandings are legion and I’d suggest, one non-lawyer to another, that you focus more on reading and understanding than on your search to find the Grey.

The hypothetical is just that. It doesn’t have to be about this specific hypothetical. What I am not sure of is I believe there is some clause about actions when facing mortal danger. That aside there are situations where someone can be forced to do something against the law that I’m sure are not covered by a mortal danger clause.

Maybe it would have been better if I had thought of the people who were being prosecuted for assisting the underground railroad and freeing slaves which has cases acquitted by nullification as that also opposes other’s comments on how it is so bad because some were acquitted for lynching also. The world is constantly changing as are our moral beliefs and nullification is one way to ensure that the laws are still bases on the moral concerns of our peers buy which the juries are made of.

You certainly could in Missouri.

Not to mention: