By Dr. Ken Broda Bahm:
Jury nullification is treated as a deep and dangerous secret. The idea that a jury can decide to follow its own moral guidance instead of following the law, is the legal doctrine that dare not speak its name, at least not anywhere near a courtroom. It’s been used as ammo in the war against the drug war, led to accusations of jury tampering, and even served as the basis for a criminal indictment of a retired professor who made it a practice to hand out pamphlets about nullification in front of courthouses. As stories like these become more well-known, the official secret of jury nullification might be turning into something more like an open secret. Based on the viral success of a recent video by CPG Grey — more than 1.5 million viewers in the first month it’s been up — the knowledge of nullification might be well on the way to becoming more common than ever.
The video is entitled “The Law You Won’t Be Told” and it’s a quick and humorous introduction to the meaning, pros, and cons of nullification. While the idea of nullification might apply most readily to criminal cases where citizens are reluctant to convict on what they see as an unjust law, the more general principle applies in civil cases as well, where the standard the jury might want to apply differs from the one the law is asking for. This post takes a look at the video, embedded below, and more broadly addresses the question of how litigators should react to this possibility for what’s been called a “fully informed jury.”
The clip itself is worth watching, not just for the primer on nullification, but also because it provides a nice example of effective visual communication. It is simple but thorough, providing a fast-paced and easily understandable explanation of a relatively complex idea. There is also a Reddit discussion of the clip that gives you an interesting window into the public’s thoughts on the subject.
I think a few very important points stand out from this tutorial. A potential juror viewing this, one of the 1,562,752 who has done so as of the time I posted this message, would get the following three messages:
- Nullification is Powerful: Nullification isn’t the law, but it is the practical consequence of the law, and it can either do great good or great harm, depending on whether it is the good laws or the bad ones that are being nullified.
- Nullification is Supposed to be Secret: Because this kind of knowledge influences verdicts, courts are unified in the position that jurors should not be told about the potential for nullification.
- Knowledge of Nullification Can be Fatal: Admitting to knowing of or believing in nullification can get you disqualified, or otherwise deselected from a jury.
For those lawyers who seek to benefit from nullification (e.g., the criminal defense attorney with a sympathetic-but-guilty client, or the civil litigator hoping for a different standard than the legal instructions provide), the best advice is to keep mum about it, since any nudges otherwise can be a quick route to a mistrial. For the greater proportion of lawyers who would prefer the predictability of having the jurors apply the law, ferreting out the possible nullifier can be an important challenge. Here is my advice:
1. Don’t Count on Juror Candor
As the video shares, the standard way to find out if any on your panel support nullification is to ask in voir dire, “Do you have any beliefs that might prevent you from making a decision based strictly on the law?” The difficulty is that those same individuals who are fully informed and attracted to the idea of nullification would also know to hide their intent. The effect of the available information on nullification, including this video, is to coach the nullification-prone to avoid any candid admissions.
2. But Do Look for Hidden Agendas
Jurors can attempt to stealth their way onto a jury for a variety of reasons: fame in a high-profile case or strongly held views on social ills to be remedied. The idea of nullification provides another reason: Some may want to serve just for the empowerment that comes from being able to supercede the law. We’ve written in the past that these stealth jurors can present a danger, and attorneys should rely on a multimethod approach in order to spot and strike those trying to get on by giving only the ‘right’ answers. A recent post in the Hot Coffee blog also shares some ideas on strategic probing in order to identify a hidden agenda.
2. Pair Good Sense With Good Law
Nullification itself, as the video points out, is a neutral tool: It can just as easily support injustice as it can support justice. The question is, if the weapon is potentially in a jurors’ hands, which way are they aiming it? In wanting to supercede the law, they are probably seeking to put in its place their own version of what is correct, right, or moral. So, that suggests aiming your case at that moral principle to begin with. If you can make the legal result you are seeking also line up with the moral result that most jurors will see, then you’re mitigating the risk by draining away the motivation to nullify. That requires asking in every case, not just what jurors are willing to find based on the law and the facts, but on what they want to find based on their own internal motivations and moral compass.
One good example of reasons reducing the motive to nullify is in social media use. Judges will always tell jurors not to seek outside information. But to jurors, it can seem appealing to do exactly that: In this internet age with a world of information at my fingertips, why wouldn’t I want to know as much as possible before I make this important decision? That is why the most effective social media instructions will focus not just on the prohibitions, but on the reasons why the information presented in court is likely to be more reliable, more relevant, more fully vetted, and more fair to both sides in the dispute.
One final word on the CGP Grey video is that, in contrast to much of the information the casual Googler will turn up, the video provides a very fair and balanced look at the idea of nullification. But the video’s viral status does remind litigators that, at least for many potential jurors, it’s safe to assume that the cat is out of the bag. That is a reminder to do what legal advocates should be doing anyway: not just providing a connection of facts and law, but instead convincing your fact finders to do what they think is right and making sure that what feels right squares with what you’re advocating.
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Other Posts on Jurors and the Law:
- Address Fundamental Skepticism on Rule of Law
- Address Your Jury’s Inevitable Difficulty With TheInstructions
- Know the Limits of Limiting Instructions (But Don’t Necessarily Discard the Instruction to Disregard)
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Video Credit: C.G.P. Grey (YouTube Embed)
Photo Credit: Eva Rinaldi Celebrity and Live Music Photographer, Flickr Creative Commons (Edited)