A victimless crime is where a person breaks the law while harming no one. These can range from failure to pay fines, registration and paperwork mixups, morality laws, and more, however the most common and egregious example of victimless crimes is drug prohibition, where a person could potentially spend a lifetime locked away for perusing recreational substances in the privacy of their own home.
To combat this, activists have taken steps to inform jurors of their right to vote “not guilty,” even in cases where the defendant has clearly run afoul of the law, thereby nullifying an unjust law. In New Hampshire in particular, jury rights activists informed over 3,000 jurors of their right to nullify last year.
I interviewed Kirsten Tynan, executive director of the Fully Informed Jury Association (FIJA), about the importance of jury nullification in a free society.
The Desert Lynx: For the uninformed, what is jury nullification, elevator pitch version?
Kirsten Tynan: It is the right of every juror to vote Not Guilty for any reason they believe is just. In its strictest sense, jury nullification occurs when a jury acquits a defendant who has technically broken the law. Informally, however, you will also hear the term used to describe a hung jury that results when some but not all of the jurors vote Not Guilty despite the law having technically been broken.
Does it work the other way around, when a juror declares a defendant guilty despite not finding them to have actually broken the law?
KT: Not exactly. Even though some people will reframe that scenario as “reverse jury nullification”, portraying it as though it is an equal and opposite scenario, reality is very different. The legal system was never meant to be an even playing field, but rather was purposely tilted to err on the side of liberty.
In the case of acquittal, a jury’s verdict is final and cannot be appealed by the prosecution. On the other hand, in the case of conviction, the defendant is allowed to appeal. So you can see in that scenario that there is extra protection to err on the side of liberty.
Hung juries are a similar story. In almost all criminal courts, a single juror can prevent a conviction by voting Not Guilty. (The defendant can be retried, but this is a far better scenario than conviction.) On the flip side, a single juror voting Guilty despite the defendant not having broken the law does not result in a conviction.
And I think it is far harder to find six or twelve jurors in today’s cultural climate to convict someone who had not broken the law than it is to find six or twelve conscientious people who will show mercy when the law is unjust to a defendant who has technically broken the law.
So rather than letting jurors make up the law, nullification facilitates no law (in that case). What’s to prevent jurors acting this way from creating a lawless society?
KT: Jury nullification has been grounded in English law since at least the 1600s, and it has been a part of the United States legal system for the entire history of the country. It was in 1670 that an English court established the principle that jurors cannot be punished for their verdicts, and that principle crossed an ocean and survived in our legal system to this day.
Despite centuries of jurors’ ability to nullify, somehow neither England nor the United States has descended into lawlessness. Is it a fluke? I don’t think so. Probably it has more to do with people actually wanting to live in a society free of real crimes such as murder or assault or rape. When there is a real victim who was harmed, people are more likely to be willing to enforce the law.
If anything, it seems like there’s very rarely an occurrence at all. Do most jurors know about their right to nullify?
KT: We don’t have data on the frequency of jury nullification, because that would be near impossible to gather. After their service, most jurors go back to their lives and we have no insight into their decisions or the reasons behind them.
Qualitatively, my sense is that it is uncommon, but probably not as rare as most people perceive it to be. FIJA currently has a project going to compile the most complete list of known and possible jury nullification cases anywhere online. We just had a summer fellow working on this project, and several of the cases he researched were within the last few years. But yes, it certainly is uncommon, and most jurors do not know about their right to nullify. Prosecutors now make a habit of filing motions in limine in any case they are prosecuting that would be likely to be viewed sympathetically by a jury in order to preclude any discussion that might even hint at their right of jury nullification. Judges do their part to mislead jurors with jury instructions worded so as to strongly imply and sometimes even outright falsely state that jurors must follow the law as the judge explains it to them.
I just recently saw a tragic case in Utah in which a juror came forth publicly expressing her regret for having voted Guilty on a few minor charges against a man named Jeremy Johnson. She said that because of the instructions to the jury, she believed she had no choice but to vote Guilty even though she believed no crime had been committed.
What steps are being taken to better inform jurors?
KT: Working with our supporters and allies, FIJA creates more fully informed jurors in many different ways.
One popular activity is juror rights outreach by handing out information near courthouses. Right now I believe there are long-term juror rights education campaigns going on in at least Colorado, New Hampshire, and Texas. We also have a signature day of action each year coming up on September 5 called Jury Rights Day commemorating that 1670 case I mentioned earlier. Volunteers go to courthouses nationwide on Jury Rights Day or another day close to that date to hand out brochures, hold signs, and answer questions about jury nullification.
We also do our best to arrange speakers for community groups and events where jury nullification information would be well received.
I have been working particularly diligently this year to add a lot more information to our website at FIJA.org, especially in the Library section. We also have a volunteer helping us to upgrade to a new, more user-friendly website that will be easier to navigate and learn from. We have the most active page I can find on Facebook specifically focused on jury nullification education and related jury issues, and we’re also working on improving our content offerings on YouTube. I have also started answering jury nullification and general jury-related questions on Quora to reach an entirely new audience there. One project I have in progress is a jury rights education online class that has been requested from us by several of our constituents. I’ve almost got the curriculum finalized, and then we will go forward with recording. We are also working on developing some new materials for publication both in print and electronically.
That’s a sampling of some of the things we have going at the moment. I have a few other projects that are kind of in the early stages, but keep in mind that at the moment FIJA has exactly 1 full-time staff person (me) and 2 very, very part-time people whose paid hours total less than a half-time staff person. We are almost entirely volunteer-driven, and none of this would be going on without the support of our generous volunteers and donors!
In your opinion, what’s the best “bang for your buck” form of activism?
KT: Something that puts jury nullification into the media in a positive light.
For example, juror rights educators in Bucks County, Pennsylvania, were getting harassed by courthouse officials for exercising their right to hand out jury nullification information on the public sidewalk. James Babb video recorded an encounter with an irate courthouse official, who also was in the wrong in demanding that juror rights educators must be banished to a far away “free speech zone”, in which he respectfully but firmly asserted his right not only with the courthouse official, but in conversation with a police officer who was called to the scene.
Not only was the video posted on YouTube where it is still viewable today, but the story was picked up by the local newspaper who ran it on their front page AND wrote an additional editorial in support of these volunteers’ right of free speech. That is a perfect example in which not only was the message amplified far beyond what volunteers could convey through their pamphlets, but the courthouse official then wound up helping make publicly visible the message he was trying to quash! There are a number of ways to get into the media including hosting a newsworthy event that is then covered, submitting an op ed, or even just writing a simple letter to the editor when there is a timely situation that connects somehow to the right of jury nullification. And that applies both with the traditional print and broadcast media, as well as with online media.
And finally, to wrap it all up: What’s at stake here? What happens if jurors don’t know their rights? What happens if they’re well-informed?
KT: Let’s look at this from two perspectives. On the accused person’s side, if they are convicted even of a minor offense, the consequences are far from minor. First, if convicted, a defendant’s personal relationships will be damaged. Their reputation in the community and among their peers will be tainted, their intimate relationships may be destroyed due to the added stress of the situation, and they may even lose custody of their children. If the penalty involves a fine, they may wind up losing property that is integral to their survival such as the roof over their head or a vehicle that is necessary for them to get to work. Fines that are not immediately paid can end up snowballing and even eventually lead to imprisonment.
If a person is imprisoned as a part of their sentence, understand that we have just put a possible death penalty on the table, no matter how minor their offense. They are at greater risk while incarcerated of physical and sexual violence, up to and including death. I have seen cases in which people died on their first day in jail or prison, due to medical neglect by staff who believed they were faking an allergic reaction or other condition. And even if they make it through their incarceration, once they are out, it becomes orders of magnitude harder to provide for themselves and their loved ones because their educational and employment opportunities are significantly curtailed. A conviction—even one which jurors think will result in a so-called ‘slap on the wrist’—can be life destroying.
But we should also consider this from jurors’ perspective. When we sit in judgement of another human being, holding their very life and liberty in our hands, we have great power and great responsibility. Although we will get to go home at the end of the case, we will have to get up everyday and live with the responsibility of how we treated that other person.
We get many calls and emails every year in the FIJA office and I see time and time again in the news stories from people who regretted their verdicts.
This can be five, ten, twenty years down the line. They are distraught by an error they have made, often unwittingly as they are misled into conviction by the judge and prosecutor. And I have to tell them there is very little they can do to remedy the situation. They cannot take back their verdict. They may be able to speak to the defendant’s attorney who may be able to do something with the information, but usually nothing will come of it. Somehow they must make peace with that situation for the rest of their lives.
On the flip side, with just two words a fully informed juror can literally save a life. Imagine that. I don’t know how much closer to a magic wand we can get in real life. The juror may experience some psychological pressure during deliberations, but they cannot be punished for their verdict. It is very low risk and one juror can at least hang the jury just by saying Not Guilty.