JUSTICE SEEKERS OR ROGUE JURORS? – SHINING THE SPOTLIGHT ON JURY NULLIFICATION
Jury nullification, or the power of the jury to disregard a law if they either do not agree with a law or feel it has been applied unjustly, has gained media exposure recently across the nation. The New Hampshire House has approved a bill that would allow criminal defense attorneys to include an instruction to inform juries of their right to nullify. The bill will now go to the Senate. In Colorado, a judge dismissed charges against two activists for passing out pamphlets outside a Denver courthouse, informing jurors of their right to nullify. The two had been charged with seven counts of jury tampering before the judge ruled that passing out such literature was protected by their First Amendment rights.
Stories like these are gaining significant media attention. So it should have come as no surprise that during a multiple jury Mock Trial, a juror in one group expressed her right to disregard jury instructions if she found them to be “unjust.” The woman struggled to defend her opinion as other jurors continuously reminded her that her opinions conflicted with the jury instructions. After a short discussion with quickly rising tensions, she said, “I’m keeping my opinion. Jury nullification then. I don’t have to follow the instructions.” It was an argument the other jurors seemed surprised by, and although they remained unconvinced, they received a clear message that there was no changing her mind.
In another deliberation room during the same Mock Trial, a juror expressed his duty to nullify if he did not agree with the instructions. He passionately explained to his fellow jurors that it is not until a jury refuses the instructions that laws are changed. Unlike the previously described jury, a number of jurors in this group were persuaded by his argument, and joined him in his stance.
Jury nullification is not a new concept. Before the civil war, juries at times refused to find people guilty of harboring fugitive slaves if they disagreed with slavery. During prohibition, juries often refused to convict based on alcohol control laws. But the fact that these jurors exercised what they felt was their duty to disregard jury instructions because the instructions conflicted with their conscience, seems to be a reflection of increased public awareness of jury nullification. And despite the bill in New Hampshire only applying to criminal cases, jury nullification can, and does, happen in civil cases as well.
Consider the impact this may have on your next case as you develop your case strategy. Cases that are more prone to jury nullification are those that have emotional or moral components that influence the jury’s decision-making. So even if the law clearly favors one side over the other, jurors decide the case based on their collective conscience of right and wrong. For example, in sex abuse cases, the plaintiff must prove an entity knew or should have known about the abuse. Deciding whether they meet this burden can be influenced by the strong emotional nature of the claims, and sometimes by jurors’ motivation to find in favor of the victim even if it may be unclear the entity knew or should have known about the abuse. As another example, employment termination cases that deal with sensitive claims such as gender, race, or religion are also ripe for emotional decision-making. Even if the law clearly favors the employer’s rights, jurors may disregard the instructions in favor of finding for the plaintiff.
Although New Hampshire is so far the only state considering a specific jury instruction to explain juror’s ability to nullify, any jury can make this choice. There are no protections against it – it is within the jury’s power to decide the case as they see fit. So if there could be a strong moral objection to the acts of one party, or a way to garner sympathy for that party, jurors may nullify based on their feelings of right and wrong, even if the law directs them otherwise. If the potential for nullification is beneficial for your case, your jury selection strategy should include identifying those who hold “black-and-white, rules are the rules” attitudes.
If the potential for nullification is a concern for your case, seek to identify potential nullifiers during jury selection. Of course, there is no “one-size-fits-all” nullifier – think about who would sympathize strongly enough with your opposition to disregard legal instructions in the case. During closing arguments, focus on the importance of following the letter of the law in deliberations. Emphasize the importance of fairness and equal justice based on the laws that have been established. To combat a strong moral or emotional argument, remind law-oriented jurors of the values of following the established rules and considering the evidence in a systematic way. Show them they can derive satisfaction from doing what is supported by the law. Often, some flavor of, “none of us are above the rules” has broad appeal.
As jury nullification becomes more widely publicized by the media, it’s worth considering how this increase in knowledge could impact your case – for better or for worse.