Robbins: What is jury nullification and why does it matter?
The Sixth Amendment of the United States Constitution assures that “…the accused (in criminal proceedings] shall enjoy the right to a speedy and public trial, by an impartial jury.” All 50 states have similar provisions in their respective state constitutions.
In Colorado, the guarantee is found in Article II of the Bill of Rights. Section 16 thereof provides that, “In criminal prosecutions, the accused shall have the right to … a speedy public trial by an impartial jury … “
The right to an impartial trial by a jury of one’s peers in all criminal matters is fundamental. It is essential to the fair and unbiased administration of justice. But what if Lady Justice is not blind? What if, instead of taking in and dispassionately weighing the evidence of a particular case, instead of calm neutrality, she is peeking around the blindfold and determined to effect a particular agenda or result?
In my last column, I wrote about stealth jurors, jurors who in the process of voir dire, or jury selection, misrepresented their biases to be picked so they could sway deliberations in one direction or another. As an example of such potential under-the-radar tactics, or stealth, I employed the example of the current Trump hush money trial in New York.
What if, I posited, one or more of the jurors had not been forthcoming in jury selection because, even before the evidence was presented, they wanted the ex-president hung … or, else, the evidence be damned, acquitted? Wouldn’t that pervert the ideals of fairness and impartiality?
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Another potential threat lies in a notion known as jury nullification.
In its simplest conception, jury nullification occurs when a jury returns a not-guilty verdict even though jurors believe beyond a reasonable doubt that the defendant has broken the law. In other words, the evidence be damned. Instead of erecting the gallows of conviction, the jury decides, instead, to hand the defendant a winning “Get out of Jail Free” card.
A quick aside before we blunder on. Why “beyond a reasonable doubt?” Simply, that is the standard in a court of law that must be met to hold one guilty of a crime, a standard that has been otherwise defined as “no other reasonable explanation.” To find one guilty in a criminal proceeding, the jury must conclude that “he done it!” and there is no other reasonable means or cause by which the criminal event(s) occurred.
Not only is nullification by a jury insidious, but particularly so because, owing to the concept of double jeopardy (a protection guaranteed by the Fifth Amendment), the not guilty verdict cannot be overturned and the accused may not be tried again for the same crime. And … because the jurors cannot be punished for what they have conceived, not only is true justice stillborn but its fair administration is said to have been, and has been, “nullified,” at least in that particular case.
Nullification is, of course, a threat to the system and the overarching concept of “equal justice under the law.” Neither a popularity contest nor the imposition of a jury’s conception of what the law should provide — instead of how the law is written — should be the metric by which guilt or innocence is measured or “justice” is doled out.
In what can be conceived of as a milder form of jury nullification, some — but not all — of the jurors (or in many cases, just one), can hang the jury by sticking to her guns by insisting upon a not guilty verdict even though they believe the defendant broke the law. As a criminal conviction requires unanimity by the jury, even a single holdout (one of 12 in a felony trial), can muck up the whole works and “hang” (or perhaps better said, “hang up”) the jury and keep it from reaching a united verdict.
While to convict, a jury must reach the unanimous determination of guilt, there is no requirement or compulsion that a juror must come to a unanimous conclusion. If the jury cannot unanimously agree on a verdict of either guilty or not guilty, the jury is hung.
Often, when a jury tells the presiding judge that they are stuck, the judge will encourage them to “try, try again.” But if the impasse prevails and further deliberation will be unproductive, the judge will declare a mistrial.
In such a case, unlike a finding that the defendant is not guilty, double jeopardy does not come into play and the prosecution may or may not retry the case. But, in the short run at least, the law is nullified. A hung jury — especially when the facts are damning — is a defense attorney’s dream. At the very least, a hung jury will delay things and at best, the prosecution will “fold tent” and determine not to give the prosecution of the matter another try.
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Sometimes — although rarely — nullification is a matter of conscience. Take for example the historic rejection of the Fugitive Slave Laws and refusal to convict which made the laws untenable and forced the laws to change. Although, in such rare instances, jury nullification may be morally correct, in the main, in quotidian matters of guilt or innocence, a jury’s failure to discharge its duty in good faith undermines the rule of law and, in so doing, undermines the fundaments of our democracy.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
