Mimesis Law
20 October 2021

The Pandora’s Box Of Jury Nullification

Mar. 17, 2016 (Mimesis Law) — To a defense attorney, jury nullification is a mythical creature. When the case is lost on the facts, there is always that miniscule glimmer of hope that the empaneled jurors will ignore see past the law and acquit your client because they do not want him hauled off to prison.  But in a land where mythical creatures roam free, New Hampshire is on the precipice of codifying jury nullification.

As Andrew Fleischman wrote earlier this week, the House of Representatives in the old Granite State passed an amendment to House Bill 1270 that would modify the all-important instructions a judge would give a jury prior to their deliberation. Currently, at the end of a New Hampshire criminal trial, which one can only assume usually involves the theft of milk or a dispute over Widespread Panic tickets, the judge gives the following instructions (slight paraphrasing):

If they (point at government) proved the case beyond a reasonable doubt, then guilty. If they didn’t, not guilty.

But if this bill passes, then the jury will be allowed to make an unprecedented third consideration.

Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

As Fleischman noted, a jury is free to acquit for whatever reason they choose. Lack of evidence, too much evidence, arresting officer had a poorly cut jib, or they are just pissed off about missing that Widespread Panic show.  Jury says “not guilty,” it sticks, no matter the reason.  But as the law currently stands, when a jury goes rogue and acquits in spite of overwhelming credible evidence of guilt, this decision is not sanctioned by judge or law.  For now.

There is the argument that in a system weighted so heavily against the criminal defendant, leveling the scales just a small bit would be a step towards a fairer version of justice. But “reaction” to that “action” is uncertainty.  That very counterpoint was levied by none other than Judge Richard G. Kopf.

As for Justice Sotomayor’s statement that “[t]here is a place, I think, for jury nullification—finding the balance in that and the role judges should play[,]” I will not take her statement seriously until she defines the exact “place” about which she spoke. Her statement is equivalent of muttering: “The rule of law is the law of rules, except when it isn’t.”

It should come as no surprise that the good Judge would come down on the side of the rule of law. But “the rule of law” is not merely a phrase.  It carries with it the attempted goal of certainty and predictability.

In a criminal justice system that has a certain aversion to fairness, often the only thing a criminal defendant has going for him is the certainty of the rule of law. The laws and rules within the system are, in large part, fair.  The injustice pours in when prosecutors, judges and defense attorneys abdicate their responsibility and ignore those laws and rules.

It is tempting to see a rule allowing jury nullification that would, by definition, provide an avenue for acquittal where one did not previously exist. As a defense attorney, I would want this avenue for my own clients 100% of the time.  But would inviting selective application of this law further the interests of justice?

Throughout history, law enforcement and the courts have often failed to provide adequate equal protection under our laws. Minorities, especially black Americans, have experienced a much clearer path into the criminal justice system than their white counterparts. Once in the system, institutional racism has punished minorities more harshly than similarly situated whites.

Now, going back to the New Hampshire jury nullification proposal, would such a proposal result in more acquittals?  Almost certainly.  But do more acquittals necessarily equal more justice?  Criminal trials are notorious for removing any and all peripheral, non-relevant information from the proceedings.  As it stands, the only factors upon which a jury could decide to nullify guilt would be the facts of the case presented at trial and the appearance of the defendant.  Both of those factors are the epitome of arbitrary.

It should surprise no one that if this New Hampshire bill becomes law, the beneficiaries of the “justice” option would almost certainly be the same beneficiaries of a system that is currently run disproportionately by whites. Namely, whites. It is fair to assume that the same racial disparities that currently infect our system will also tarnish this get-out-of-jail-free card.

Beyond the equal protection implications, this law would open up a Pandora’s box of admissibility. If jurors are told they may consider a “just outcome” instead of the current assessment of whether the elements to a crime have been proven beyond a reasonable doubt, evidence relevant to that question becomes almost unlimited.  The central question of guilt can become lost.

How could defense attorneys possibly be expected to advise their clients on whether or not to testify. When the case is on the line, there would now be an impossible choice.  Do we defend the case on the merits and argue that the government has failed to meet its burden, or do we put our client’s life on the stand in an attempt to convince the jury that convicting this particular person would be unjust?  The latter strategy works great for a guilty mother with three children, but is completely unavailable to an innocent drug addict.

And this brings us back to the rule of law. Determinations of guilt should have little to do with the background of the accused.  Did the defendant have the intent to kill or was this an accident?  Perhaps self-defense?  The defendant stole, but did he steal $999 or $1000?  A crime was undoubtedly committed, but was it this defendant who did it?  In theory, the questions juries face are answered similarly no matter what the defendant looks like.  Certainly, racism (and every other -ism) seeps into a jury’s decision, but at this point, at least it is not sanctioned.  A resume is appropriate for a job interview, not a jury deliberation.

This is not to say that many New Hampshire lawmakers did not have good intentions in writing this amendment.  But without recognizing the full complexity of law and life that exist in our criminal courts, even a law with good intentions can push true justice further away from those most in need of it.

14 Comments on this post.

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  • a leap at the wheel
    17 March 2016 at 10:17 am - Reply

    Totally agree. Everyone knows that the only people responsible enough to have discretion in seeking a prosecution are judges – who hold an office rightfully designed to insulate them form the community – and prosecutors – who are surrounded in incentives to seek guilty verdicts without consideration of the facts.

    My God, we tried jury nullification once. First we let those rascals the Quakers hold their own services. Then we let that low man Zenger print whatever he wanted! Shortly after that, boom. Revolution.

    There aught to be a law!

  • Ken Womble — The Pandora’s Box Of Jury Nullification | Ordinary Times
    17 March 2016 at 10:29 am - Reply

    […] Mimesis Law — The Pandora’s Box Of Jury Nullification […]

  • Keith
    17 March 2016 at 10:55 am - Reply

    Suppose you have a defendant accused of marijuana possession and you ask a potential juror during voir dire if they think marijuana should be illegal. If they tell you no, would striking that juror be for cause if they are permitted by the rules to nullify a law? Or would that be a peremptory challenge?

    • Ken Womble
      17 March 2016 at 12:34 pm - Reply

      Great question. I could definitely see an argument as to why such a statement would be in line with allowing jurors to independently determine justice and therefore, not a challenge for cause.

  • David M.
    17 March 2016 at 11:13 am - Reply

    So because this element of the set of ways to get a client off is tarnished by teh racisms – like so many other things in the criminal justice system, including other ways – it and only it deserves to be thrown out?

    No. Let’s be consistent here. Jury nullification – free criminal trials are, as you point out, still more likely to result in a guilty verdict for blacks than whites? Fine. Get rid of them. Can’t have that. Must be race-neutral at all costs.

    Throw out baby. Leave bathwater.

    • Ken Womble
      17 March 2016 at 12:37 pm - Reply

      The difference as I see it is that a jury nullification rule would almost invite racism. Trials, at least in theory, do not.

      • David M.
        17 March 2016 at 3:16 pm - Reply

        Different issue. That’s not a concern about racism, but rule of law. Could be well-founded – the prospect of jurors deciding everything based on their feels doesn’t thrill me either – but the validity of the objection doesn’t rest on whether the feels are racist or not

        If racism in the criminal justice system really is an endemic problem, smashing symptoms (inconsistently!) isn’t gonna fix things. And you’re throwing away a lot of good with the bad.

  • Marc Whipple
    17 March 2016 at 1:21 pm - Reply

    Are you concerned that juries will read the unwritten and decide to start convicting people because they’re bad people not because the case was proved BARD?

    If so, do you think this will be significantly more important than the proclivity juries already have to convict people because the cops and prosecution said they were bad people?

    If not, do you think it is more important that something which will disproportionately benefit white defendants be stopped than it is to provide something which might at least have some chance of benefitting any given defendant?

    • Ken Womble
      17 March 2016 at 1:52 pm - Reply

      Not at all. My concern is that juries will nullify only for people that look like good people. It invites a dog and pony show into a venue that should be focused entirely upon whether the government met their burden.

      And something that disproportionately benefits white people is necessarily unjust to non-whites.

      Another way to look at it is how differently this rule would affect men vs. women. Since women are vastly underrepresented in the CJ system, they seem a bit out of place as defendants, or at least much moreso than men. So if someone doesn’t fit the preconceived notion of what a criminal defendant should look like (generally speaking), then they are more likely to benefit from nullification. This assessment is completely detached from the facts of a case.

  • Mouseketeer
    17 March 2016 at 1:43 pm - Reply

    “Ten innocent men….”

    In 1792, both civil and criminal juries decided all questions of fact AND law. The NH Constitution loosely mimics language from Magna Carta: “No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” NH Const. art. 15. A Seventh Amendment jury trial entrusted those decisions to the jury (according to the Framers, this was an antidote for “corrupt judges” [Elbridge Gerry]), which was “preserved” (the only time that word was ever used in our organic law). All the NH law does is force judges to tell the jury that they still have these rights.

    The law is what it is. All this does is keep judges from substituting their pleasure for the actual state constitution holds. The law isn’t perfect, but by what right do judges change it?

  • Jason
    17 March 2016 at 1:44 pm - Reply

    I think it would be very useful when facing mandatory minimums. I have seen more than one jury regret the consequences of their verdict (they generally aren’t told of minimum mandatories in Georgia) after Judge sentences.

    But, I’m a little worried prosecutors could argue or imply the reverse… “we didn’t quite prove our case, but it would be unjust to let this criminal walk free.”

  • Jordan
    17 March 2016 at 2:01 pm - Reply

    Only nullifying for people who look like good people is vastly preferable to what we have now, especially considering that jury verdicts are already influenced by such factors anyway. Juries shouldn’t be a rubber stamp for State power.

  • Opera Man
    17 March 2016 at 4:29 pm - Reply

    On this point you should read Judge Kozinski’s terrific article in the George Washington Law Review (it was in the preface). American criminal justice today is about punishing anything and everything and the old saying ignorance of the law is no excuse no longer holds true. The reaches of the various conspiracy and other statutes is still evolving; prosecutors are cunning, as they should be, and defense attorneys are unlikely to be able to cut them off. Even former Judge Mukasey has decried overcriminalization.

    As for jury nullification, I think a better context to examine this phenomenon is when a jury acquits and yet the judge finds by a preponderance of the evidence that the defendant most probably committed the alleged conduct and increases his sentence on other counts of conviction (if any). This results in a winner take all. So, for instance, when dealing with a multi-count indictment, unless we are dealing with certain offenses that trigger automatic statutory minimums, a not guilty verdict on some counts is pretty useless so long as there is a guilty verdict on other counts. I believe this phenomenon is called acquitted conduct or relevant conduct sentencing in the federal system where the tail can often wag the dog. There is a lot of academic articles on that point with the title “acquitted conduct sentencing,” but I think the issue here is not so much jury nullification but the over reliance on relevant conduct.

    Many juries may think they are doing a defendant a favour when they return a not guilty verdict on some counts, but they dont understand that a single conviction on an indictment is enough.

    As for relevant conduct, I remember from Judge Kopf’s blog (and forgive me if I am wrong) that he is in favor of the more fuller picture that relevant conduct in a PSR provides but takes additional steps where there is “acquitted conduct.” The issue I have with either of the two (and again they are closely intertwined) is that the sentencing statute 18 USC 3553(a), which purports to be based on retribution and utilitarian ideals, does not support acquitted or relevant conduct sentencing.

    Retributivists almost uniformly reject the notion that a person should be punished for conduct that is either not charged or which has resulted in an acquittal. Utilitarians, which Judge Kopf and many others prescribe to (again my apologies if I am wrong), seeks to maximize social welfare: but this can lead to overpunishment, with a disparate impact on minorities, and sacrifices some crucial fundamental rights, i.e. the 6th Amendment.

    I think attorneys have a very difficult time both at trial and in advising their clients: with the exception of Vermont and some other state courts, attorneys cant tell the jury or explain jury nullification or jury nullification by the judge/prosecutor after the verdict. Worse, a lot of defendants go into a trial with the false perception that if they score a not guilty verdict on a multi-count indictment that they have scored some type of victory only to be shocked and disappointed when they get the PSR and appear at sentencing to receive punishment for acquitted or uncharged conduct.

    Judge Merrick Garland, which just got nominated to the Supreme Court, recently wrote in an opinion denying en banc reconsideration,in a case involving acquitted conduct/relevant conduct sentencing that the issue urgently needs to be taken up by the Supreme Court. Although, I doubt he will even get a hearing, here is hoping that that is at least one issue that’ll get resolved sometime soon.

  • Keith
    21 March 2016 at 5:16 pm - Reply

    What exactly is your concern?

    If the concern is that they will nullify the law because they like the individual (e.g. the all white jury acquitting the white defendant), that would clearly be a problem. However, if they acquit because they will find a problem with the actual law, that’s a very different set of preferences and I’m not sure I’d have such an issue with it. Or is the concern something completely different?

    It’s been my experience that most people fit into the “rule abiding” status in Kohlberg’s Moral reasoning (although I suppose it just takes one for some juries). Short of an activist who already is against a particular law (e.g. drug prohibition), what kinds of laws do you see them nullifying?