An unusual case out of Denver, Colorado has brought the long debated idea of jury nullification back into the news media limelight. Two men in Denver were charged with multiple counts of jury tampering for passing out flyers on jury nullification outside of a Denver courthouse. Jury tampering charges are usually saved for individuals who use intimidation, bribery, or other illegal approaches to try to sway jurors to reach a certain decision. Preventing jury tampering is important to preserve a fair and justice system at trial.
In Denver, prosecutors alleged that the act of handing out pamphlets on jury nullification to potential jurors was sufficient to prove multiple counts of jury tampering – judges in both the underlying criminal cases as well as a judge in a subsequent civil case disagreed. Evidently the two men are an active part of the protest community in Denver and had previously protested outside of the courthouse. Public areas, such as areas outside of courthouses, are typically areas where the First Amendment right of free speech is protected. The prosecutor who filed the charges against the two men indicated that even though he respected the First Amendment, it was his belief that based on the law in Colorado, the two men were guilty of trying to influence jurors to vote a certain way.
After the two men were arrested and charged, their attorney filed a civil rights law suit on their behalf in federal court. In a ruling on that case, the federal judge held that the two men had engaged in protected speech under the First Amendment. The civil matter is still pending. After that ruling and a subsequent motion hearing in the criminal matter, all of the pending criminal matters were dismissed by the court. Recently in New York an individual protestor was similarly charged with jury tampering after handing out information on jury nullification.
Interestingly, jury nullification has not always been portrayed in such a negative light. In fact, the United States has a long history of using jury nullification as a means to promote social change. The Legal Information Institute, a program run by Cornell School of Law, defines jury nullification as:
A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.
Throughout history juries have used jury nullification as a means to send a clear message to the government that they believe certain people and/or crimes should not be punished. For example, during the prohibition era many individuals were found to be not guilty because the jury did not believe that the possession of alcohol should be criminally punished. Likewise, there has been an apparent increase in what has been perceived as jury nullification in marijuana cases. As marijuana becomes more socially acceptable, juries are becoming less comfortable with the idea that a person could spend substantial time incarcerated for the possession of marijuana.
On the other hand, jury nullification has a dark side as well; this is often the argument judges and prosecutors use when instructing jurors they are not allowed to use jury nullification. One of the classic examples of jury nullification being used in what most would consider an inappropriate way is the pattern of white defendants being found not guilty of heinous crimes involving African-American victims. In those cases, juries found defendants not guilty despite overwhelming evidence based entirely on the skin color of the defendant and victim.
It is unlikely that the debate for jury nullification will end any time soon. In all likelihood with increased access to social media, internet, and news the prevalence of jury nullification may increase as potential jurors have more access to information on jury nullification.