How Juries Can Refuse to Convict People for Breaking an Unjust Law
Editor’s note: The following is a lightly edited interview with Kirsten Tynan, executive director of the Fully Informed Jury Association. The organization works to informed potential jurors about the nature and importance of juries, and the power jurors have to refuse to convict defendants of violating an unjust law.
Libertas Institute: Why are juries important?
Kirsten Tynan: In the legal system, there are many parties involved who have a vested interest in a certain outcome. Really, the only independent party in the courtroom is the jury—or, if you prefer, each individual juror. The judge obviously is paid by and works for the government; judges often come from the ranks of prosecutors. They have an interest in keeping business rolling by keeping the courtroom full. Prosecutors, of course, are often elected officials whose livelihood depends on getting prosecutions and whose continued employment often depends on appearing to be tough on crime.
Defense attorneys are also not always independent; although we may think of them as always on the side of the defendant, that’s not always true. A lot of public defenders, who incidentally are also paid by the government, have a cozy relationship with the other government employees in the courtroom and may not steer their client in a direction that is in their client’s best interest.
So really, the purpose of the jury is to be an independent body that stands between the defendant and a malicious prosecution, unjust law, or corrupt process. They are there to be a bulwark for liberty.
LI: What is jury nullification?
KT: In its strictest sense, it’s when a jury votes to acquit the defendant even though they believe that the defendant has been proven guilty beyond a reasonable doubt. That said, people often use the term a little more broadly to mean other things. They may use it to refer to when a mistrial happens because a jury is hung because some of the jurors are attempting to nullify.
LI: Does jury nullification mean that the law itself becomes nullified?
We’re asking people to consult their conscience in their deliberations, and not just blindly rubber stamp a conclusion they’re led to by the judge and prosecutor.
KT: I don’t necessarily like the term jury nullification; it’s not ideal. But the nullification part is supposed to refer to the fact that the law was not enforced in the case at hand. If a jury does acquit somebody via jury nullification, that does not change the law; it can still be applied in future cases. What does happen over time, for particularly objectionable types of laws, it does influence how the rest of the system deals with those laws. Sometimes if juries refused to convict repeatedly in many different cases, police may stop arresting people for whatever offense that is, prosecutors may use their power to stop prosecuting those charges, and eventually legislators may end up changing the law. So while the jury is not able to change the law itself, and can only deal with the case before them, over time the cumulative effects of many different jury decisions can influence the rest of the system.
All that said, you might hear it referred to more accurately under the term “conscientious acquittal,” which I really like. It really emphasizes what we’re talking about here—we’re asking people to consult their conscience in their deliberations, and not just blindly rubber stamp a conclusion they’re led to by the judge and prosecutor.
LI: Why is jury nullification an important tool?
KT: It’s really the final check on a law. Everyone in the system has discretion. Police decide whether they’re going to arrest someone for a particular offense. Prosecutors decide whether or not they will charge someone for a particular offense, and what charges they are going to level. Judges even have discretion inside the courtroom, to a certain degree, and they can sometimes overturn guilty verdicts if they believe that verdict was unjust.
Where the buck stops is with the jury. When they deliver a not guilty verdict, that cannot be overturned and they cannot be punished for delivering that verdict, no matter what their reason was.
If there is an unjust law, which I think most of us have some ideas about the injustice of some of our laws; if there are laws being unjustly applied in ways that were not intended for them to be used; if there is a law that prohibits something properly but then punishes its violation disproportionately severely, which we see in the cases of three-strikes laws and mandatory minimums in a lot of cases; or if there’s a law that is generally good but in the particular case at hand there are some unique extenuating circumstances that would make enforcing it unjust—in all of those cases, if the jury votes not guilty, that cannot be overturned. So they are really the final check on overreach by government, against corruption, and against malicious prosecution. That’s how the jury has real power in the courtroom.
If the jury doesn’t also have the right to judge the law, then the law can simply dictate their fact-finding role out of existence.
If they didn’t have that power, there is certainly nothing that they could do in the courtroom that wasn’t basically prescribed by the rest of the system. In An Essay on the Trial By Jury by Lysander Spooner, he says:
But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence.
Often times we’ll hear myths spread, especially by prosecutors and judges, that the jury’s role is finding fact, and it’s a judge’s role to determine the law. But as Spooner explains, if the jury doesn’t also have the right to judge the law, then the law can simply dictate their fact-finding role out of existence.
LI: There’s a rigorous process to be selected as a juror. If an individual were to admit that they would be willing to acquit a defendant of violating a law they believe to be unjust, is it likely that they would be able to be seated as a juror to begin with in our modern court system?
KT: That’s a good question. There is a threshold beyond which it would be impossible to remove all of these people. If there are only a few people who talk about jury nullification during jury selection, then almost certainly they’ll be removed.
But when we have people who have common knowledge of it—when it’s part of the culture the way it was during the time our country was founded—you simply wouldn’t be able to form a jury by excluding these people. That’s where we want to get to.
Activists spread FIJA literature in Denver.
A good example of where we’re starting to see that is in Denver. There’s a group of activists there who have been leafleting since last year. We’re hearing from them reports that these questions are getting asked in the courtroom, and people are admitting they know about it and are still getting on juries. We think that’s because it’s become so saturated with this information that a jury couldn’t be formed anymore if they were excluded.
To give a specific example of that, even though these people didn’t call it jury nullification, there was a case in Montana a few years back where a guy was being prosecuted for simple possession of very small amount of marijuana. During jury selection, so many people were saying that they wouldn’t vote guilty and were asking why taxpayer dollars and their time were being wasted, and were being excused as jurors, that the judge saw that a jury couldn’t be formed and told the prosecution and defense to revisit the idea of a plea bargain. The defendant ended up taking a plea that involved no punishment and not admitting guilt.
The end result, if everyone knows about this right and is prepared to use it in appropriate circumstances, is that jurors can’t be screened out on that basis, otherwise you can’t get a jury.
LI: You mentioned a past cultural awareness of this issue, which appears to have changed. Why was jury nullification better known in the past, and what forces caused the lack of knowledge about it today?
It was better known in the past because the denial of the benefits of trial by jury—specifically, jury nullification—was one of the reasons we had an American Revolution to begin with.
KT: It was better known in the past because the denial of the benefits of trial by jury—specifically, jury nullification—was one of the reasons we had an American Revolution to begin with. If you look at the Declaration of Independence, there’s a very specific sequence. In the list of grievances you’ll find taxation without representation (basically), followed by depriving colonists “of the benefit of trial by jury” (note that it specifically refers to the benefit, not just trials themselves), and then after that it’s the grievance about being transported overseas to be tried for pretended offenses.
What that series of grievances really tells a story of, is that at the time that the Declaration was written, what was going on was that to avoid what were considered unjust taxation laws, colonists were breaking the law to evade them. Their neighbors, in many cases, were not convicting them. Grand juries wouldn’t indict them, and it was hard to get juries to convict.
So to get around that, i.e. to circumvent jury nullification, the Crown decided to remove the accused from that environment to eliminate the protection of the jury of their peers, and that way they could get convictions. This is a main reason why this power of juries was so well known long ago.
Why it is no longer well known is an evolving story. What most people will point to is an 1895 U.S. Supreme Court ruling, Sparf v. United States, where it was ruled that judges are not required to inform jurors about their rights to nullify. It did not take that right away—in fact, the ostensible reason for the ruling was in part because it was so commonly known at the time, that it was not necessary for judges to educate jurors.
Since that time, it’s gone from “judges are not required to inform jurors” to courts ruling more and more against even allowing the notion into the courtroom—to the point where it is virtually a secret thing.
Whether or not that characterization is accurate is a matter of debate, because at the time there was some history going on that suggested that certain judges may have had reason to be unfavorable to jury nullification. So they may have overstated how commonly known it was, but at that time you could make a social statement that would be somewhat plausible that jury nullification was well known.
Since that time, it’s gone from “judges are not required to inform jurors” to courts ruling more and more against even allowing the notion into the courtroom—to the point where it is virtually a secret thing. Almost invariably, with a few unique exceptions, you’re not going to hear about this jury power within the courtroom.
The only way you’re going to find out about it is if you know before you get to court, or afterward, possibly to your horror. Now we are seeing prosecutors file motions before trial begins not only to exclude explicit mention of jury nullification, but to exclude any line of argument that might hint in that direction. We’ve seen rulings that redact relevant information from evidence in order to dissuade the jury from nullifying. It’s just ridiculous the lengths to which judges and prosecutors go.
Noah Kleinman stands outside the court where he was convicted of distributing marijuana.
I should mention the Noah Kleinman case, in which a man was prosecuted under federal law for medical marijuana. In his trial, there was a mid-trial voir dire (the process of jury selection). What basically happened was, there were people holding signs outside the courtroom about jury nullification and things like that. When it came to the attention of the prosecutor and judge in the case, they stopped the trial and individually interviewed each juror in a rather intimidating manner to find out if they had seen any of the signs, if they understood what it meant, and if they thought it applied to the case at hand. They were intimidated to the point that even if they had thought of nullifying, they probably weren’t going to. And they did convict him.
All that’s happened is that it’s become secret because these courtrooms are so tightly controlled in an effort to tilt the scale in favor of conviction.
You’ll hear it said that jury nullification is illegal, which is untrue. Or that it’s extra-legal or not lawful, which are untrue. The facts are these: a juror has every right to acquit somebody and cannot be punished in any court in the United States for their verdict. It’s totally within their rights. It’s not legally prohibited. All that’s happened is that it’s become secret because these courtrooms are so tightly controlled in an effort to tilt the scale in favor of conviction.
LI: Is that your allegation as to why prosecutors and jduges have become hostile to the concept itself, because of the incentive to convict?
KT: I think that is absolutely right.
LI: Critics point out that jury nullification can also be used in bad ways, such as in the Jim Crow South. How do you respond?
While it is true that jury nullification can be used for nefarious purposes, we believe in our system that that is less of a sin than it is to punish somebody who has not harmed another.
KT: I have a few comments on that. The first thing is that any situation that involves imperfect information and people will have error. The way that our legal system was designed was based on Blackstone’s formulation, which says that “It is better that ten guilty persons escape than that one innocent suffer.” The playing field was tilted purposefully in the direction of non-conviction, on the notion that if we are going to err—and we know that any political system will always have error—we want to do so in the direction of liberty.
While it is true that jury nullification can be used for nefarious purposes, we believe in our system that that is less of a sin than it is to punish somebody who has not harmed another.
The second point is that even in situations such as a Jim Crow South, where juries nullified for egregious reasons, that’s not so much a feature of jury nullification as it was of the culture at that time. One of the important things that people who bring up this opposition point usually omit is that at the time, it was illegal for black people to serve as jurors. That means you had all-white juries deliberating on somebody’s fate, and that changes the deliberation process. When someone doesn’t have to look another person in the eye and be accountable to them for wrong behavior, they are somewhat more psychologically primed to do something wrong.
What we’ve seen evidence of in more recent studies is that when there is even one person of color on a jury, a large amount of racial disparity in jury verdicts disappears. That’s an important element that was missing in the Jim Crow South.
Now let’s say we got rid of jury nullification by getting rid of the jury. Let’s say these were bench trials. Would a racist judge be a better solution than the jury? If you didn’t have that bad thing happening because of the jury, it would still be happening because of the judge. And the reason why, is that there was a much more fundamental problem there in that era. It was endemic social racism.
Finally, another feature is a Jim Crow era law still in existence today that relates to jury nullification. Somewhat shortly after the Civil War, Louisiana had to revamp its constitution and did so with the specific, overtly stated intent of disenfranchising newly freed black citizens from the political process. They did that through two channels: the voting process and juries. People were excluded through literacy tests that nobody could pass, poll taxes, and those sorts of things. The jury exclusion analog in Louisiana is that they did away with a unanimous requirement for a verdict. That still exists today; you could convict someone on a 9-3 vote, and today it’s a 10-2 vote in some cases and 11-1 in others. Capital cases are unanimous.
While jury nullification can be used for unsavory purposes, the fact is it would be much, much worse if we got rid of the jury or overruled the jury’s power.
What that did is exclude the ability of a black juror to try and nullify. This makes it so that the majority has all the power and doesn’t have to listen to the minority. At the time, that was a racial minority, but now this law means that any minority on the jury is going to have their voice extinguished. Someone who is a pro-liberty person in the minority, or somebody who has a conscientious belief that is not common, will not have their voice heard.
While jury nullification can be used for unsavory purposes, the fact is it would be much, much worse if we got rid of the jury or overruled the jury’s power. The jury represents a cross-section of the community. A judge is a single person who doesn’t have to deliberate with other people, doesn’t have to be socially accountable to other people for the reasons behind his verdict, and is a specialized segment of society—often white, male, wealthy people who have had the opportunity to get a law degree and be hired into government positions and work their way up the chain. That doesn’t represent the community. Even if they have the best of intentions and mean to be as fair as possible, there are situations where they’re just not going to see all points of view.
The only way to get rid of jury nullification is to put all the power in the hands of the judge. That is going to deliver far, far worse outcomes—not just in jury nullification cases, but in all cases.
One of the things we’ve seen evidence of is that, for example, when you have a jurors who are told that the defendant was found carrying a knife, often times upper class jurors will interpret that as a kind of malicious intent. Lower class jurors will often interpret that as being because of a need for protection or for work. So you can see, even where there isn’t a malicious intent to be unfair, we all come from different backgrounds and have different knowledge and points of view.
The only way to get rid of jury nullification is to put all the power in the hands of the judge. That is going to deliver far, far worse outcomes—not just in jury nullification cases, but in all cases.
LI: Juries often render their verdict without having any idea the impact of their decision—in other words, what punishment the defendant faces. If they knew the potential sentence, do you think juries would act differently?
KT: We have seen over and over people make public statements, or call us directly, after they’ve served as a juror and were unwittingly led into punishing someone more severely than they thought was appropriate. And they are devastated. These jurors went in with the intention of trying to deliver a just verdict, and their hands were tied because the court said not to consider the sentence, and that jurors are only there to say whether something was done or not. “Pay no attention to the consequences of the choice you’re making while you’re holding somebody else’s life in your hands,” jurors are effectively told.
There is no other aspect of our lives where we are told that it is not only responsible, but our duty to ignore the consequences of our choices while we are making those choices. We would actually be considered irresponsible, probably unethical, and in some cases even criminally liable if we ignored the consequences of our actions and harmed somebody as a result.
It’s beyond appalling, and we know that jurors in many cases would make different decisions had they realized the full effect of their verdict.
In contrast, jurors are told that this is their only option. It’s beyond appalling, and we know that jurors in many cases would make different decisions had they realized the full effect of their verdict.
LI: Some activists around the country have been prosecuted for distributing some of your literature in order to inform juries. Can you share a story or two about that?
KT: The one thing I want to stress here is that when there is a charge of so-called “jury tampering,” or anything along those lines, we’re seeing win after win after win for free speech. The only loss I’ve seen is when someone was charged with contempt of court for distributing literature in violation of a judge’s anti-free speech zone order, and when you have a contempt case, guess who adjudicates that—it’s the judge who held you in contempt. It’s not a stretch to see why that judge would convict you.
Julian Heicklen distributes literature informing prospective jurors outside the court building.
We have seen pretty much every other case in the past few years either have the indictment thrown out, as in the case of Julian Heicklen in New York, because the judge basically explained in her order dismissing it why what we do is not jury tampering. We’ve seen, in Colorado, seven felony counts each against Mark Iannicelli and Eric Brandt dismissed by a state judge. We have a preliminary injunction in place against the Denver police from enforcing the illegal anti-free speech zone order that came after those felony charges.
I do want to stress that these arrests are often reported in the media, and almost never do these victories get reported.
Also going on right now is the case of Keith Wood in Michigan who was charged with jury tampering and felony obstruction of justice. So far, the obstruction charge has been thrown out and they’re working on getting the tampering charge dismissed. If not, it will go to a jury trial. What will be presented as evidence at a jury trial? Probably our brochures that he was handing out, so that will be a well-informed jury if the county is foolish enough to go forward with that.
I do want to stress that these arrests are often reported in the media, and almost never do these victories get reported. That really irks me, because it’s really important for people to understand that what we do is legal, and that if they are being harassed, there are ways to push back against that. If someone is arrested, there is a high likelihood that they will win.
LI: There’s a strong appetite right now for what is broadly classified as criminal justice reform. How integral a component of that would you consider jury nullification to be?
KT: I’m going to broaden that a little bit. I do think it’s integral, but I don’t think it’s only jury nullification education specifically that’s crucial, but rather reclaiming our right to trial by jury. Virtually no criminal cases at this point go to juries anymore. It’s a very small percent that do. People are strong-armed into plea bargains.
First, a jury trial is very expensive. Second, the person may not have the resources to pay for a jury trial because their wealth may have been confiscated through asset forfeiture. Third, there is a phenomenon known as a trial tax, where when a person turns down a plea bargain and goes to trial by jury and happens to lose, they are going to serve on average a substantially longer amount of time in jail or prison than they would have if they had taken the plea bargain. So essentially they are being charged a certain amount of time for the offense, and then a certain amount of time—usually far more than the plea bargain, or what the prosecutor thought was appropriate for the offense—just for exercising their constitutionally guaranteed 6th amendment right.
Not only is it crucial to have fully informed jury, but we need to be able to get in front of a jury to begin with.
When nobody can get a jury trial, or when they are intimidated or priced out of it, and when they only get a jury that is basically controlled by the judge and the prosecutor, that’s a big indicator of an unhealthy system and probably a big contributor to this out-of-control criminalization. Not only is it crucial to have fully informed jury, but we need to be able to get in front of a jury to begin with.
LI: Many people, when they receive their jury summons in the mail, consider it a burden and something to be avoided. Do you think that’s the proper perception one should have toward potential jury service?
KT: I understand it, but I don’t like it. I understand it, because in today’s courtrooms, we often see people who are basically led to a conclusion after being kept ignorant of relevant information, such as the sentence or details of the trial that the judge maybe doesn’t want them to see.
Vernon Hershberger and his wife, joined by a few jurors from his case.
There’s an example of this in the Vernon Hershberger case. There was a charge against him for breaking a hold order on some goods on his property. That order that the jury got to see was so heavily redacted that they were unaware that the hold order was invalid if they found him not guilty on the other charges levied against him, which they did. So they inadvertently convicted him of something out of being led to it by the judge selectively filtering information.
So I understand when people feel like they are just pawns in the system, they certainly don’t want to forgo their time and money to sit on a jury. But I think when people learn about jury nullification, and learn about the real power and purpose of the jury, their attitude often improves substantially. Because then they understand that they are not just there to be somebody else’s minion and do what they are told. They are actually the most powerful people in the courtroom, and they have the most responsibility.
Also, when people think about what they would want if they were the defendant, that really changes things. We all think “I’m doing nothing wrong, nothing could happen to me,” but as the book Three Felonies a Day points out, any one of us—especially if we fell out of favor with certain government officials—could be easily finding ourselves unjustly prosecuted. When people realize that they could be a defendant, they wonder who they would want judging them. Do they want a government employee, who has an incentive to convict, to be their judge? Do they want people who don’t want to be there, who are going to do whatever it takes to get out of there the quickest, and not care about the defendant? Or do they want a conscientious person sitting in that seat? When we understand that it could be us, that definitely improves a person’s attitude a lot of the time toward jury duty.
We should stop calling it jury duty. It’s not a duty to me—it’s an opportunity. Jury opportunity.
LI: If you could speak to the public for two minutes on this issue, what message would you convey?
KT: If we saw someone drowning in a lake, and around that lake was a pretty, grassy area with a “Don’t walk on the grass” sign, would we look at that sign and say to ourselves, “I would love to go save that drowning person, but unfortunately I can’t walk on the grass”? None of us would ever do that. Nobody with a conscience could wake up the next morning and feel good about themselves.
As jurors, we’re told that’s what we’re supposed to do. We get an instruction that says we should ignore the potential consequences. We’re to ignore our personal feelings about the law. We’re supposed to just do what we are told. And people will think they have no options—but that’s simply not true. You always have the option to vote not guilty when you believe that is just. And with your two simple words—not guilty—you can save a life.