Jury Nullification

Jury nullification is “a juror’s ‘knowing and deliberate rejection of the evidence or refusal to apply the law because the result dictated by law is contrary to the juror’s sense of justice, morality, or fairness.’” See People v. Waller, 412 P.3d 866, 878 (Colo. App. 2016) (quoting State v. Nicholas, 341 P.3d 1013, 1015 (Wash. App. 2014)). Let’s say a defendant is caught with crack and because of the old war on drugs laws in place, that defendant faces a minimum of fives years in jail for simple possession of a small amount of crack. Even though all the evidence supports a guilty conviction, jurors have the power to nullify or find the person not guilty if they believe that law is wrong.

Jury nullification can be dated back as far as the Magna Carta in 1215 and was used in colonial America prior to and during the Revolutionary war. See Juries: A History of Jury Nullification, Liberty Int’l (June 12, 2001), https://liberty-intl.org/2001/06/juries-a-history-of-jury-nullification/; see also Waller, 412 P.3d at 878. For the founding fathers, jury nullification was a final safeguard or veto for a government enacting laws that violated human rights or were not accepted by society. See Juries: A History of Jury Nullification, supra. The basic concept is, if the government makes unfair laws and no representatives, senators, president, or judge stops them, the jury can ultimately refuse to find someone guilty of the law even if the facts support a guilty verdict. The jury’s power to nullify is also rooted in the Sixth Amendment right to a trial by jury. See Waller, 412 P.3d at 878.

In Colorado, while judges have the discretion to stop an attorney or defendant from arguing jury nullification, there is no rule against it. See id. (citing People v. Wilson, 972 P.2d 701, 706 (Colo. App. 1998)). However, a defendant cannot get a jury instruction telling the jury that they have the power to nullify. See id. Additionally, police in Denver recently charged two people with jury tampering for handing out pamphlets about jury nullification outside the Denver courthouse. See Naomi Gilens, It’s Perfectly Constitutional to Talk About Jury Nullification, ACLU (Jan. 22, 2019, 4:30 PM), https://www.aclu.org/blog/free-speech/its-perfectly-constitutional-talk-about-jury-nullification; People v. Iannicelli, --- P.3d ---- (Colo. 2019). However, the Colorado Supreme Court recently overturned the defendants’ convictions because the jury tampering statute requires a defendant to tamper with a juror for a particular case not just randomly hand out pamphlets to any juror that could possibly be serving for jury duty on a particular day. See Iannicelli, --- P.3d at ¶31. While the Colorado Supreme Court decided the case without reaching the constitutional question of “is handing out pamphlets informing jurors of jury nullification protected activity under First Amendment free speech?”, it’s clear that advocating for jury nullification to a general audience and not to a particular jury cannot be considered jury tampering. See id.

So, remember, next time you serve on a jury, you have the power to nullify or return a not guilty verdict, even if the evidence supports a guilty verdict, if you feel that the conduct that violated the law should not be illegal, if the sentence imposed is too harsh for the conduct involved, or for any other reason you believe a not guilty is the right verdict to achieve justice.