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Jury Powers

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CONTENTS
A. Jury power basics - top 10 things to remember
B. Frequently asked questions (FAQs)
C. Jury power details
1. Types of trials
2. Key players in a trial
3. The trial process
4. Words used in court
5. Surviving voir dire (jury selection)
D. Juror responsibilities, powers, and penalties
E. What the courts say about nullification
1. The U.S. Constitution
2. State constitutions
3. On the legality of nullification
4. On informing jurors of their nullification rights in court
5. The legality of sharing jury power information outside courthouses

A. JURY POWER BASICS – TOP 10 THINGS TO REMEMBER

Your only job as a juror is to ensure justice is done...not to enforce bad laws.
You can find the defendant Not Guilty...even if he/she clearly committed the crime...if you believe the law is bad or punishment would be unfair. This is called “jury nullification" because the jury decides the bad law is “null” or nothing. You must judge the law as well as the facts.
Some of the oaths you are asked to take are non-binding.
The judge and sometimes expert witnesses are allowed to mislead you.
You cannot be asked WHY you voted as you did.
You cannot be punished for your verdict.
Don’t talk about JURY POWER (inside the courthouse).
BE the kind of juror you would want if you, or someone you care about, were on trial.
When enough juries refuse to convict good people for breaking bad laws, the bad laws may go away!
Spread the word about jury power to everyone!

B. FREQUENTLY ASKED QUESTIONS (FAQs)

What exactly is jury nullification? It is the process by which a jury finds a defendant Not Guilty of a bad law or bad application of the law...even if the defendant clearly broke that law...if the jurors believe justice would NOT be served by convicting and punishing the defendant. By doing this, the jurors are declaring the bad law to be "null," or nothing, in this case.
How does a nullification acquittal differ from acquittal due to reasonable doubt? If you, the jurors, feel that the prosecution (the state or the government) has failed to prove its case for guilt "beyond a reasonable doubt," you can "acquit" (find the defendant Not Guilty) for that reason. Nullification, on the other hand, is used when the defendant probably or certainly DID commit the crime, but does not deserve to be convicted and punished. If you return a verdict of Not Guilty, you do not need to specify WHY you did so.
How many jurors does it take to nullify? In federal courts and most state criminal courts, ALL the jurors must agree in order to deliver a valid (unanimous) verdict. So, technically, it takes all the jurors to deliver a Not Guilty verdict (nullify) when the defendant clearly broke the law. However, as few as one juror who refuses to convict can give the defendant a second chance at justice in a new trial by "hanging" the jury. (See "What is a hung jury?" below.)
What is a "hung jury," and how does it affect the case? When one or more jurors refuse to vote with the others and will not change their minds, a "hung jury" results. This means the jury cannot reach a unanimous verdict. The judge can ask them to go back and deliberate longer. The judge may allow jurors to ask additional questions if more answers might help them agree on a verdict. Or the judge can declare a mistrial, which means the parties may or must start over and try the case again with a different jury. For a defendant hoping for a just and fair verdict, a hung jury can offer another chance to be tried by informed jurors who understand and are willing to use their powers to ensure justice is done.
How many jurors does it take to hang a jury? In most criminal cases, it only takes one juror to "hang" the jury.
How can I tell my fellow jurors about jury power? The best solution is to educate everyone you possibly can before they're involved in a trial. Once you are on a jury, you can hope your fellow jurors are already informed, and you can hint at your broader powers during deliberation by emphasizing your primary duty to serve justice. But you should not talk about jury power inside the courthouse or you may be excluded or dismissed from the jury.
If I or someone I care about is the defendant in a trial, how can I be sure jurors know about their nullification powers? You can organize an outreach outside the courthouse to give out jury information. But there are risks involved for participants. (See Section E, parts 4 and 5 below.) Again, the best solution is to educate everyone you possibly can NOW, and openly express enthusiasm when you are called for jury duty.
Don't jurors take oaths to obey the judge and the rules? Yes. But there are oaths and rules you have to follow, and there are others that are more like traditions or suggestions. See Section D below for details of each.
Can I get in trouble for disregarding the judge's instructions? Not if you are doing your primary job, which is to ensure justice. If the judge tells you how you MUST vote, he has overstepped his authority. His job is to advise jurors about the law that pertains to the case. The jury's role is to take whatever advice the judge has given, consider the facts of the case as well as the law, and deliver a verdict that is just and true. In a criminal trial, you (the jurors) cannot be asked WHY you voted the way you did, and deliberations are secret. Therefore, no one ever has to know whether you, as jurors, disregarded the judge's instructions.
I've heard/read that nullification is illegal. Is that true? NO. Nullification has been an accepted part of jury trials since the founding of this country...and even before. Most articles that claim nullification is illegal are actually about laws that have made it illegal for lawyers to tell jurors about nullification in the courtroom.
What court rulings prove that jury nullification is truly legal? The case most people refer to on the subject of nullification power is Sparf v. U.S. (1895), but it didn't really affirm or deny the general practice of nullification. (See Section E below for details.) Many of the opinions referenced in Sparf considered nullification a "power" jurors legally have but shouldn't use. Some point out that it is a power rather than a right, while others say that the right of a jury to render a "general verdict" in secret inherently gives them the power to nullify. Many judges consider jury nullification a kind of unfortunate loophole in the law. But the Founders saw it as an important check against government tyranny.
Can a case be appealed or retried after a nullification verdict? Assuming the verdict was Not Guilty, then no, the decision cannot be overturned or appealed. In fact, the secrecy of deliberations and the inability of the court to ask why the jury voted as they did means the court can't know for sure whether the jury: (a) felt the government failed to proved guilt beyond reasonable doubt, or (b) chose to vote Not Guilty even though the defendant clearly committed the crime. Once a defendant has been acquitted, the "double-jeopardy" clause of the 5th amendment prevents them from being tried again for the same crime. On the other hand, if for some reason, the jury found the defendant Guilty - even when the evidence and the law seemed to point toward innocence - then yes, the defendant can get a new trial.
How does jury nullification change bad laws? Nullification works over time by making bad laws so unenforceable that law officers stop arresting people for them, the government stops prosecuting them, and lawmakers give up and rewrite or repeal them. It can be a very long process taking years or even decades. It starts with one trial at a time where jurors refuse to convict defendants of breaking the bad law. The next step can happen when so many members of the community (the jury pool) openly oppose the bad law and vow to free the defendant if they become jurors... that the case is settled without a trial and without convicting the defendant. (See the "jury pool mutiny" story on our Success page.) But even when the bad law becomes virtually unenforceable, lawmakers may still need some prodding from their constituents to officially change or eliminate the law.
Why don’t more defendants choose a jury trial? There are three main reasons:
(a) Plea bargains. In far too many cases today, defendants are pressured by their lawyers to accept a "plea deal" or "plea bargain." In this kind of deal, the lawyers for and against you, the defendant, assume you are, or will be declared, guilty, and they negotiate with each other to give you a "better" deal than what they think you'll get in a jury trial. In a real sense, you are being asked to gamble with your freedom. The prosecution will often threaten you with harsher punishment and a longer wait in jail before the trial if you don't take the deal. Even your own lawyer may advise you to accept a plea deal because the alternative could be much worse for you and your family.
(b) Bail vs. jail time. The second reason is that defendants who hold out for a jury trial can sit in jail for months or years awaiting trial if they can't afford bail. This is another unjust trend that needs to be reversed via bail reform laws.
(c) Insufficient confidence in jurors. The third reason is that defendants may not know about jury power or may not have seen enough evidence to trust jurors to make a fair and just decision for them. We can change that by educating everyone about jury power.
Why do some defendants go free on bail awaiting trial while others may spend years in jail before going to trial? Bail is money given to provide a financial incentive for the defendant to return to court if freed until it's time for the trial. If the defendant is considered a "flight risk" (likely to skip town and not return for trial), the bail is usually set at a very high amount. Very wealthy or well connected defendants can afford even excessive amounts of bail money with little or no inconvenience. But all too often today, bail is set ridiculously high, even for regular defendants who have families and businesses in town and who can be trusted to appear for their trials. For those who can't afford bail, the only choice is to await trial in jail. Bail reform measures proposed across the country hope to change the injustice in the bail system that locks up defendants just for being poor or having insufficient cash flow.
What keeps juries from freeing guilty people and convicting innocent people out of prejudice, spite, malice, or pure whim? it is true that jurors have the power to make unjust decisions, and at times in the past, there have been enough citizens with similar biased values to do so. However, instances of this happening are rare in the overall history of the country. There are several checks that prevent this, including:
(a) Theoretically, the jury will be made up of people from various parts of the community with diverse attitudes and values. This greatly reduces the likelihood that all jurors will agree to a capricious or malicious verdict.
(b) The attorneys from both sides have the opportunity to reject some potential jurors who might negatively affect their cases. This reduces the likelihood of getting a jury full of people all with the same mindset.
(c) The majority of citizens who serve on juries take their responsibilities seriously and want to do what's right for the defendant and the community.
(d) If an obviously innocent defendant were found Guilty by a jury, there are a number of ways the verdict can be challenged and the defendant can receive another chance at true justice.

Can nullification be used in a civil trial? Not exactly. Nullification is primarily used in criminal trials when the law is bad or application of the law is unfair or unjust for the defendant. In civil courts, jurors certainly have the ability to ensure justice, but those powers are different, and the jurors' reasons for their decisions may be questioned openly.
How is jury nullification different from states' efforts to nullify federal laws? Jury nullification is simply the process, within a single trial, in which jurors render a verdict that seems to disregard the facts of the case and/or the applicable law explained to them by the judge in order to serve what they believe is true justice. The state "nullification movement" (see this article) typically involves efforts by individual states to pass legislation that overrides federal laws. For example, several states have already passed pro-marijuana laws, and many have refused to enforce the Affordable Care Act...both in opposition to laws passed by the U.S. Congress. And some states are gearing up to push back against federal gun control laws, which the states consider unconstitutional. (It is important to remember that the states created the federal government, and the Constitution was designed to limit the powers of the federal government, leaving all remaining rights and powers to the states and the citizens.)
Doesn't nullification have the potential turn us into a lawless nation? That argument has been made (by judges and others in positions of power) since the founding of this country. Yet here we are, more than 230 years since the Constitution was ratified, and the law still stands, more powerful than ever. So it would seem that we jurors really present no threat to The Law, except in our ability to take back some small fraction of the rights that have been stolen from us by those with much greater powers. For more on this subject, please see the related article dated 1/5/19 in our Blog section.

C. JURY POWER DETAILS
The sections below offer general trial and jury information. For information specific to your location and situation look online for relevant handbooks and guides.

Types of trials
Jurors can serve on grand juries as well as in criminal and civil trials. This website deals primarily with the use of nullification in criminal trials where someone's freedom or even life is at risk.
Key players in a criminal trial
Prosecution ("the State") - The lawyer or legal team representing the government, including the makers and enforcers of the law.
Defense - The lawyer or legal team representing the defendant.
Defendant - The person accused of one or more crimes, whose freedom, and possibly life, rests in the juror's hands.
Judge - The person (like a referee) responsible for ensuring all the players follow the law and obey the court's rules.
Jury pool (or "venire") - All members of the community eligible for being called to serve as jurors.
Prospective jurors - Those who have received a jury summons and showed up at the courthouse.
Jurors - Those selected to serve on the current trial. A trial may have 12 jurors or fewer.
Alternate jurors - Those selected as backup jurors in case one or more of the main jurors becomes unable to serve or is dismissed from the jury.
Jury consultant - An expert consultant hired by one or more legal teams to describe that team's ideal juror or jury for this case and to advise/assist them in the questioning and rejection of prospective jurors and in the selection of jurors and alternates.
Bailiff - One or more persons in charge of security in the courtroom. Bailiffs may be armed or unarmed law officers or may simply be law clerks or others given this role for this particular trial. The bailiff also serves as the primary liaison between the jury and the judge during jury deliberations and/or sequestration.
Witnesses - Those called to testify under oath regarding evidence in the trial.
Court reporter/stenographer/recorder - The person who documents everything said during a trial using "shorthand" or a stenographic machine, which then converts the shorthand notations into human-readable text.
Observers - People may be allow to sit in the courtroom to observe the trial as long as they respect the rules of the court.
Court watchers - Defendants may ask friends or associates to observe the trial and perhaps take note of key events and actions. They are observers with the specific purpose of monitoring the proceedings for the defendant's benefit.
Media/reporters - News media representatives may be allowed to attend and observe the trial as well, as long as they respect the rules of the court.
The trial process
Jury summons - The document that comes in the mail requiring you to appear in court for jury duty. Yes, there are many ways to "get out of" jury duty. But once you know about your powers as a juror, you will see that you owe it to the defendant(s) to give them a fair and just trial.
Prospective juror's first oath - With this you simply agree to tell the truth during voir dire questioning for jury selection (below). You MUST be truthful during voir dire questioning, or the ultimate verdict can be considered invalid, causing a mistrial
Jury selection (or "voir dire") - The process in which those who received a jury duty summons are questioned by attorneys for both sides (the state or government versus the defendant/accused). The objective of each side is to eliminate jurors they believe will be unfavorable to their side. But there are limits on how many prospective jurors they can eliminate.
Juror's second oath: "swearing in" the jury - With this oath you agree to follow the judge's instructions regarding the law, among other things. This oath is a tradition that sounds official but is actually not enforceable.
Opening statements/remarks - Attorneys for each side explain the key aspects of the case to the jury, and they try to influence the jury to see all the evidence from their perspective and to agree with them in the end.
Witness testimony and introduction of evidence - This is the bulk of the trial, with each side calling witnesses, questioning them and introducing evidence to support their side of the story. The witnesses for one side can be cross-examined by attorneys from the other side who will typically try to discredit or invalidate their testimony.
Objections - Lawyers from either side can object to something said during the trial. The judge can either sustain it (accept it as information that should not be considered as part of the record and ask jurors to disregard it) or overrule it (allow it to stand as part of the official record and be considered in the verdict).
Closing statements/remarks/arguments - Like the opening statements, these are the opportunities for lawyers on each side to encourage the jury to see all the information presented during the trial in a way that supports their side. These statements are typically heavy on emotional appeal.
Deliberations - Once both sides "rest" (are done presenting evidence and questioning witnesses and have given their closing arguments), the jury will go to a private room to "deliberate," or talk about and decide what their verdict will be. During deliberations, no one but the bailiff will be allowed to communicate with the jurors.
Choosing a foreperson - The first step in deliberations is to choose a foreperson to be the jury's leader and spokesperson.
Deciding a verdict - After deliberating (and possibly arguing) with fellow jurors, the jurors will vote on the verdict. If the jurors are not all in agreement, the process of discussion and voting will be repeated.
Unanimous verdict - When all jurors are in agreement they will announce to the bailiff that they have reached a unanimous verdict. (See "hung jury" definition in part 4 below.)
Sequestration - Sometimes, for a long or highly charged trial, jurors may be "sequestered," or provided accommodations where they can stay overnight away from outside influence.
Reconvene, reading of the verdict - Once the jury has reached a verdict, the judge will call back all the participants to the courtroom. The foreperson will then read the verdict.
Jury polling - Sometimes the judge or one of the attorneys will want to ask each juror individually if they agreed with the verdict. Jurors only need to say yes or no here. If they say no, this means there was no unanimous verdict after all. The judge will either ask the jury to deliberate longer or, if it's obvious one or more jurors will never change their votes, the judge can declare a mistrial, which allows the parties to start all over wit a new trial and a different jury.
Sentencing - In many states, sentencing (punishment for defendants convicted of a crime) is decided by the judge only. However, several states, including Texas, allow juries to set or recommend sentencing. This is the last phase of the trial. If jury sentencing is not allowed, the judge will dismiss the jury before the sentencing phase. Otherwise the jury remains seated until sentencing has been set and court is dismissed.
-  Sentencing on acquitted charges is a particularly ugly practice in which defendants who have been acquitted of all but one charge in a list of charges can still be sentenced (given punishments) for all the charges. In other words, if you were charged with 10 serious violent crimes and were acquitted of 9, only being convicted of one mild crime, you could still be sentenced to the punishments for all 10 crimes.
Words used in court
Acquit - To free someone from a criminal charge with a verdict of Not Guilty.
Acquittal - A legal judgment that a defendant is Not Guilty of specified crimes.
Attorney vs. Lawyer - Most of us use these terms interchangeably, but there is a practical difference. Lawyers are all those educated in the law. Attorneys are lawyers who have met the qualifications of a specific jurisdiction to represent others in court.  All attorneys are lawyers, but not all lawyers are attorneys.
Contempt - (Contempt of court) When someone breaks a rule of the court, that person may be charged with contempt of court. Attorneys, defendants, witnesses, observers, jurors and even officers of the court can be charged with contempt if the judge considers the behavior damaging to the integrity and seriousness of the trial. Contempt charges can involve jail time.
Convict  (kn-VICT) - To find someone guilty of a criminal charge. A person who has been convicted may be called a convict (CON-vict).
Counsel - Another word to refer to a lawyer/attorney in a trial.
Hang the jury / hung jury - When one or more members of a jury simply cannot agree with the others on a verdict, they "hang" the jury or create a "hung jury." In most cases, the judge will work with the jury to help them come to a unanimous decision, if at all possible, because a new trial would be costly to everyone.
Mistrial  (MISS-trial) - The judge can declare a mistrial, which effectively cancels the current trial and allows the parties to start over with a new trial. A mistrial can be declared if the jury absolutely cannot reach a unanimous verdict, or if the judge finds evidence that any part of the process was compromised (e.g., jurors lied about having no biases, jurors conducted outside research or were influenced by other parties, key evidence or conflicts of interest were withheld by either side's lawyers, etc.)
Objection - If information or actions are considered to be inappropriate for the jury to consider, one of the attorneys can object to them. The judge can sustain the objection (accept it and instruct the jury to disregard it) or overrule it (and allow the information or action to be considered by the jury).
Unanimous  (yoo-NAN-uh-muss) - Agreement by all members of a group. When all jurors agree on a verdict, that is a unanimous verdict.
Venire  (veneer) - All citizens eligible to be called for jury duty. Sometimes called the jury pool.
Voir dire  (vwahr deer) - The jury selection phase of a trial when prospective jurors are questioned to determine their experiences and any biases that might make them less objective or fair. The French term means "speak the truth," which jurors are asked to do when questioned.
Surviving voir dire (the jury selection process)

Before you can serve justice--for the defendant and for the community--first you have to become a juror. During voir dire, attorneys or consultants for each side (prosecution and defense) are trying to identify potential jurors who will be unfavorable to their view of the case and to eliminate them from the jury. There are limitations on how many prospective jurors they can reject, so at some point, they will have to take whomever is next.

What kind of questions will I face? Some attorneys may be lazy and will only ask Yes/No questions or may ask all of you to raise your hands to signify a yes or no answer to a question. Good attorneys, on the other hand, want to dig deeper to find out who you are and how you really feel about the crime, the law, and possibly the defendant or similar others (race, religion, economic status, drug experience, history of crime, etc.). To do that, the attorneys need to ask open-ended questions like, "How do you feel about...?" and "Why...?" They may ask a general question first, then focus in on only those who said No to it. They may ask, "Why do you disagree with..." the premise of the previous question. They may ask Fred Jones to express why he disagrees with Mary Smith, or how Mary feels about Jane Hill's views on this type of crime, since Jane has a very close connection to this type of crime.

This is the trickiest part for Jury Heroes to navigate, because you must tell the truth here if you want to ensure a fair trial. But you also don't want to be rejected for exposing some harmless fact if you don't have to.

Here are a few tips that can help improve your odds of being selected as a juror.

a. Show up early at the courthouse on the date specified by the jury summons. Allow extra time for traffic, getting lost, etc.

b. Dress average, BE average, even before the trial officially starts
- Wear clothing that's not too casual, not too dressy. Nice jeans are okay. No shorts or flipflops.
- Be polite to others but not talkative. The legal teams are already watching/listening to see if they want you on their jury.
- Occupy yourself with something neutral (crossword puzzle, music on earphones, non-opinionated book/magazine, etc.)
- Don't talk about jury power in the courtroom. If you received a brochure outside, read it outside then put it away.

c. Take the oath and tell the truth during questioning.
- Be truthful but brief in your answers.
- Say Yes/No, or raise/don't raise your hand, to questions whenever that's an option.
- When asked open-ended questions (like "How do you feel about? or "Why?), give the shortest honest answers possible.
- If they ask if you've been, or know someone who has been, a victim of this kind of crime, give an honest yes or no.
- If they ask if you've been convicted of a crime, be honest. They may still seat you if you seem fair.
- ALWAYS show you're open-minded and fair. "It depends..." is a good answer to show you'll consider all the evidence.
- Don't volunteer your knowledge of nullification. However, if they directly ask what you know, be honest if vague.
> You might be truthful in saying, "I'll consider all the facts and the law to determine a fair and just verdict."
> Or an answer like this might be true for you, "I don't really know a lot about it, so I'll respect what the judge says."
> Or you might honestly say, "I don't know if it's totally legal. I'm just here to serve justice, whatever it is in this case."

Just remember that even your best efforts may not get you on the jury this time. The parties may agree to a plea deal, or they may have enough people to fill the jury before they get to you. Be proud you were called and showed up to serve justice. You'll be called again.

D. JUROR RESPONSIBILITIES, POWER & PENALTIES

>> DRAFT ONLY! Under construction <<

Jurors have the power to disregard the law and the facts of a case if that's what it takes to deliver a fair, true, and just verdict for the defendant...and for society. As a juror, you must ask yourself if anyone was harmed in the breaking of this law. If yes, it might not serve justice to release that person back into the community to victimize others. On the other hand, if no one was harmed, you should question the justness of the law itself (or of this particular application of the law) and refuse to convict the defendant.

"With great power comes great responsibility."

You are also expected to be responsible and respectful in the courtroom. However, there are times when you must follow certain rules, oaths or instructions, and times when you don't. There are penalties for breaking or disregarding some of these rules, oaths or instructions, and no penalties for others. The main ones are discussed below.

Remember: ALWAYS seek qualified legal advice before taking any legal actions.

Jury selection/voir dire oath.

What does the oath ask? It simply asks you to tell the truth during the selection process. In Texas, the oath says: "You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching your service and qualifications as a juror, so help you God."

Do I have to obey? YES, you should always tell the truth during voir dire questioning. However, you can give very short answers without volunteering extra information if you wish to avoid exposing something basically harmless about you that could cause you to be rejected as a juror. For example, exposing your knowledge of jury nullification might cause a prosecutor to reject you because you know you have the power to disregard the law he is trying to enforce.

What are the consequences of lying? It varies. You can't be blamed if you simply were never asked about a certain subject. However, if that thing you withheld or lied about might prejudice you for or against the defendant or might give you knowledge about elements of the crime that others don't have, then you could deprive the defendant of a fair trial. If the lie or hidden truth comes out during the trial, you may be dismissed from the jury. If the lie or hidden truth comes out after the trial, either side might be able to get a new trial. See this article about Laura Krilho.
The jury oath, or "swearing in" the jury.

What does the oath ask? The language of the juror's oath can vary from state to state. In Texas, the oath says: "You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God".

Do I have to obey? Yes. Fortunately it won't interfere with exercising your jury powers. According to the Law Dictionary, a true verdict is one "where each juror has duly considered the case and come to their own conclusion without any persuasion or outside influences." So you can nullify AND deliver a "true verdict" at the same time. Your job as a juror is to take in all the info you've heard from the witnesses, lawyers and the judge, roll it together with your conscience, and decide what justice is for this defendant. That's a true verdict.

What are the consequences of disobeying this oath? None. You, as jurors, cannot be asked why or how you reached your verdict. However, you do owe it to your fellow citizen to render a "true verdict," one that that is just and fair and free from improper influence, even if it means disregarding the law and the evidence.
The jury conduct rules.

What are the rules? The jury conduct rules usually cover things that make sure the jury is free from inappropriate influences and information outside of the facts and arguments presented to everyone during the trial. Typical rules can include the following:
- Turn off cell phones while in the courtroom.
- Do not research the case on your own.
- Don't talk about the case to outsiders (not even family) while the trial is ongoing.
- If you happen have knowledge or expertise relevant to the case, don't share it with other jurors.
- Don't take notes if doing so is prohibited. If note taking is allowed, don't share your notes with other jurors.
- Don't offer or accept even the smallest gifts or favors during the trial.

Do I have to obey? YES! Follow every rule.

Consequences of breaking the rules. It varies. In some situations, you may simply be reminded of the rule and given another chance to comply. In other situations, if the offense is considered important enough or if you've repeatedly broken the rule, you may be dismissed from the jury and replaced with an alternate. And in the most extreme circumstances, if the rule you broke actually damages the potential for a fair trial or disrespects the judge, you may be charged with contempt of court, punishable with a fine and/or jail time.
The judge's instructions to the jury.

What are the instructions? The instructions to the jury can amount to dozens of pages of written information. The judge or a jury instructor will read the instructions to you. You may or may not be given a written copy. Some of the instructions are common to all similar trials, while others pertain specifically to this case. The instructions may include reminders or points one of the legal teams asked to be included (because it might encourage you to return a verdict in their favor).

Do I have to obey them all? The short answer is No. By the end of a trial, your head will be crammed so full of information and counter-information that you won't be able to remember it all. The judge and the attorneys know that. They know that any jury will decide its verdict based largely on the overall impression and emotion the trial has stimulated in the jurors' minds and hearts. They even make it more difficult for you to remember the facts clearly by refusing to give you transcripts of parts of the record, and prohibiting you from taking notes or at least keeping them during deliberations. They may say you aren't allowed to take notes because that might keep you from paying attention to what's happening during the trial. But they won't address the problem of jurors trying to remember many thousands of details.

Consequences of disobeying the instructions. From a practical standpoint: NONE. There is no way for the court to know whether you did or didn't follow the instructions in reaching your verdict because you cannot be asked WHY you chose that verdict.

>> DRAFT ONLY! Under construction <<

E. WHAT THE COURTS SAY ABOUT NULLIFICATION

You won't find anything specific about jury nullification in the U.S. Constitution. Instead, the Constitution simply guarantees a citizen's right to a jury trial as another check against an overreaching or corrupt government.

The power of nullification actually comes from the jury's ability to deliberate in secret and render a "general" verdict of either Guilty or Not Guilty...without ever having to justify its decision to the court.

Although nullification has been an integral part of the "common law" criminal justice system for hundreds of years, even predating the Constitution, many judges resist the open discussion of this power in court.

This section offers info and links to help you understand what the courts have said and done about jury nullification throughout the history of this country. You can find quotes and excerpts from court rulings that criticize nullification and others that explicitly acknowledge the jury's power to disregard the law and the facts of a case during deliberations and to find a defendant Not Guilty.

The U.S. Constitution

Article III, Sec. 2: “The trial of all crimes shall be by jury and such trial shall be held in the state where the said crimes have been committed.”
The Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state where the said crimes shall have been committed.”

In 1789, Thomas Jefferson said, "I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution."

In 1968, Justice Byron White said, "A right to jury trial is granted to criminal defendants in order to prevent oppression by the the government."

The Founders of the U.S. knew all too well what happens when government has too much power. They deliberately structured our highest law to create checks and balances, not only to temper the branches of government, but to protect the people from their own government.
State constitutions

Each state's constitution has its own references to jury trials that may further clarify citizens' rights in that state. For example, the Texas Constitution refers to the right to a jury trial in several places, including these these:

Art 1 (Bill of Rights) Sec. 8 Freedom of Speech and Press; Libel. "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases." (This is State-authorized jury nullification!)

Art 1 (Bill of Rights) Sec. 10. Rights of Accused in Criminal Prosecutions: "In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury."

Art 1, Sec. 15. Right of Trial by Jury: "The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.
On the legality of nullification

Sparf v. U.S. 1895 is the primary case most refer to when citing the legality of, or legal basis for, jury nullification. You can read it HERE. Ultimately, the court ruled that the jury did not have the power to find some of the defendant(s) guilty of lesser charges. It wasn't really about nullification. However, in this lengthy document with countless references, the court assessed the broader issue of jury power and whether juries can judge the law as well as the facts of a case.

Today, those opposed to jury nullification (primarily judges and prosecutors whose own powers stand to be overruled by jury power) cite Sparf as the definitive ruling against nullification. Judge for yourself by reading Sparf, and also by reading the Donald Middlebrooks article HERE. Middlebrooks assesses Sparf in light of the Founders' reliance on jury power for balance in government and calls out the many errors in the Sparf decision.

Although Sparf is often cited to suggest nullification is illegal (it isn't), the Sparf decision itself cites many quotes and court opinions that acknowledge (if reluctantly) that jurors do indeed have the power to disregard or decide the law in their verdicts, even though these authors say jurors shouldn't do so or don't directly have the right to do so. Here's a telling quote from Sparf referring to the majority opinion of Chief Justice Shaw in Com. v. Anthes. Shaw said:

"The results is...in practice, the verdict of a jury, both upon the law and the fact, is conclusive; because, from the nature of the proceeding, there is no judicial power by which the conclusion of law thus brought upon the record by that verdict can be reversed, set aside, or inquired into. A general verdict, either of conviction or acquittal, does embody...both the law and the fact, and there is no mode of separating them on the record so as to ascertain whether the jury passed their judgment on the law, or only on the evidence...The verdict, therefore, stands conclusive and unquestionable.

Boiling it down even further, Justice Shaw also said: "It would be more accurate to state that it is the right of the jury to return a general verdict." In other words, the jury's right to decide its "general" Guilty or Not Guilty verdict in secret means the court has no way of knowing whether the jury followed the law or not. It is the secrecy behind a jury's "general verdict" that creates the jury's power to nullify.

Selected quotes affirming nullification powers in modern courts:

"A right to jury trial is granted to criminal defendants in order to prevent oppression by the government." -Justice Byron White, Duncan v. Louisiana 1968

“[T]he pages of history shine on instances of the jury’s exercise of its prerogative to disregard...evidence and instructions of the judge.” - United States v. Dougherty 1972

For more information on the legality of nullification, check out resources at FIJA.org and elsewhere online.
On informing jurors about their nullification power in court

Most cases ruling on nullification actually argue whether someone is allowed to tell jurors about nullification in the courtroom.

Most states in the U.S. today do not allow the discussion of nullification in court, though efforts have been made to reverse that trend. In 2017, Texas introduced a bill (HB 3911) requiring judges to tell jurors of their duty to "judge the law," "determine the validity of the evidence," and to "vote...according to the members' consciences." Unfortunately, the bill never made it out of committee.

Currently, New Hampshire is one of the few (if any other) states where the law allows lawyers to tell jurors about their nullification powers in the courtroom.

Are nullification discussions really illegal or merely violations of a judge's order?

See this excellent 2016 article by Kirsten Tynan, Executive Director of the Fully Informed Jury Association (FIJA). In it, Tynan makes the following observation:  "The issue, when someone discusses jury nullification in front of the jury in court, is not that telling jurors about jury nullification is illegal per se, but that the person doing so likely violated the order of a judge." If the judge forbids discussion of nullification in a trial, and a party in the trial then defies that rule, they might be charged with contempt. Even though they didn't break a law, they broke a rule defined by the judge for that trial.

Historical proofs of the legality of jury power.

In this helpful article at the Famous Trials website, Prof. Douglas Linder explains: "Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: 'You have a right to take upon yourselves to judge [both the facts and law].' In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed." This observation shows that as early as 1794, the Supreme Court openly acknowledged the jury's full powers. And in 1804, the House of Representatives in the Thomas Jefferson administration took steps to punish a supreme court justice for restricting those powers and duties of a jury.
The legality of sharing jury power information outside the courthouse.

In today's environment of police excess, election fraud, runaway lobbying, government overreach, political corruption, and for-profit prisons, citizens once again find themselves subjects of a tyranny from above, just as the Founders did at the dawn of this nation. Today, jury power may be one of the few ways we citizens can constrain the impact of that tyranny. That's why it is so important to inform all citizens and prospective jurors of their powers.

Ideally, all citizens would already know about their jury powers long before they ever step into a courtroom, either as defendants or jurors. But we're a long way from that goal. That's why many advocates carry jury power literature and hold up "Jury Info" signs outside courthouses offering information to anyone who wishes to accept it.

Many of those passersby may become jurors that day, and need to know, right away, how to respectfully and fully serve the cause of justice. This 15-second exposure to the advocates outside and their literature could potentially save a life or a family from unjust ruin by a bad law or bad application of the law.

But in many cities, personnel in and around the courthouse try to stop advocates from exercising this first amendment right to free speech on public property. Sometimes, yes, the police will even arrest the advocates. In most cases, the charges will be jury tampering (a misdemeanor) and/or obstruction of justice (a felony).

Court rulings on jury power advocates' cases

We wish these arrests always ended in dismissal of charges. But the fact is that some people are convicted and fined and/or imprisoned for sharing jury power information outside courthouses. This article about the conviction of an advocate also describes the overall landscape of this issue today. The situation as it stands is this:

- Some juries have convicted and punished advocates on the grounds that they were trying to influence jurors in specific cases.

- Some lawyers argue that EVEN IF the advocates gave literature to prospective jurors for a specific case, the act was within their First Amendment rights.

- During the advocate trials, the defense may not be allowed to mention the defendant's First Amendment rights.

- During the advocate trials, the judge and lawyers may twist themselves into a knot to avoid telling the jury what was actually IN the literature the advocate handed out...because if they DID reveal the content, the jurors would know about their own nullification power.

- If the advocate is only charged with misdemeanor jury tampering, there may be no jury trial; therefore jury power cannot protect the advocate from unfair and unjust punishment.

- In some cases, the court may allow First Amendment arguments in advocate trials, and jurors will acquit on that basis.

- As more citizens become aware of their jury powers, advocates who face jury trial can be acquitted no matter what tricks the judge or prosecution pull out of their hats in court.

Courthouse outreach. Because the results of advocate arrests are unpredictable, Jury Heroes need to be careful when giving out information outside courthouses. If you are doing an outreach, be sure to offer information, don't try to force it on anyone. Offer information to everyone, including lawyers, law officers, judges...not just prospective jurors. To avoid appearing to influence a particular trial, conduct outreaches when multiple trials are underway and when no trials are in progress. Dress professionally. Be respectful. And check out any advice FIJA offers on this subject.

General outreach. Obviously, the ideal way to avoid such arrests in the first place is to make all citizens aware of their jury power long before they ever enter a courthouse, either as defendants or as jurors. Spread the word NOW as fast and as aggressively as you can. Tell people every day and everywhere about JuryHero.com and about FIJA.org. Give out literature. Share our "Jury Nullification Basics" video on social media and via emails. Learn what YOU can do by watching our Actions page.

Most people are surprised - and pleased - to learn they have this power. Knowing how to use it, and making sure others do as well, could one day change someone's life...even YOURS.

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