Jury Nullification by Mary Claire Mulligan

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The Colorado Lawyer / December 2004 / Vol. 33, No. 12 / 71

Ajury has the power to nullify thelawto refuse to apply itby

voting for acquittal instead ofconviction, in spite of a defendants ap-parent legal guilt.Sometimes called ju-ry independence, nullification often isbased on a belief that the law,either gen-erally or as applied in the specific case,is unfair, and that a conviction would beunjust.Nullification may result in out-right acquittal or in a hung jury, whichis likely to be more common, inasmuchas only one jurors decision to nullify is

sufficient to cause a hung jury in a crim-inal case.

The use of jury nullification has ebbedand flowed since it was introduced in theUnited States in 1735.Jury nullificationhas provided a means by which jurorsmay oppose unpopular laws and over-reaching prosecutions.However, it is dif-ficult to say definitively whether a notguiltyverdict is a result of nullification,because the deliberative process isdeemed sacrosanct and the secrecy ofthe jury room is rarely invaded.

This article discusses the history of ju-

ry nullification in the United States andspecifically in Colorado. It traces nullifi-cation law, reviews studies regardingwhy jurors nullify, and provides somepractical considerations for the criminallawyer.

Jury Nullification ArrivesIn America

The defendant, an immigrant whohad been languishing in jail for months,

admitted his guilt but refused to namehis accomplices in exchange for leniency.The prosecutions evidence was over-whelming.The victim was the Governor,who promptly appointed two trial judgesto the case (as if one werent enough).The original team of defense lawyershad been disbarred as a reward fortheir failed attempt to recuse the trial

judges. Now the client was looking fornew representation.

In the first documented case of jurynullification in America, an elderly

Philadelphia lawyer named AndrewHamilton won this disaster of a case in1735.1 The client was John Peter Zenger,who was charged with seditious libel forprinting negative articles about the colo-nial Governor of New York. TheZengercase has been called the first move inthe American Revolution.2

Many colonial New Yorkers consid-ered the English Governor,William Cos-by, to be greedy and corrupt.A group ofthem founded a newspaper, The NewYork Weekly Journal, primarily to opposeCosby and his policies, and Zenger was

hired as its publisher.3 Much to Cosbysdismay, the Weekly Journal sold like hot-cakes. To shut it down, Chief JusticeJames DeLancey of New York, a Cosbyappointee, twice tried and failed to indictZenger for libel.The Governor then triedto get the colonial legislature to orderZengers prosecution, again unsuccess-fully. Finally, Cosbys hand-pickedCouncil issued a warrant for Zengersarrest, and he was eventually charged

CRIMINAL LAWNEWSLETTER

Jury Nullification:Its History and Practice

Column Editors:

Leonard Frieling, a criminal defenseattorney in private practice,Boulder

(303) 449-0092, [email protected];and Morris Hoffman,a judge

for the Second Judicial DistrictCourt,Denver

About The Author:

This months article was written byMary Claire Mulligan,Boulder,a

member of Mulligan & Mulligan,PLLC(303) 939-8100,mulligan

[email protected] practices focuseson defense of thecriminally accused.

The author thanksProfessor H.

Patrick Furmanand Casey J. Mulli-

gan for their assis-

tance with thisarticle.

by Mary Claire Mulligan

Throughout American history, jury nullification has

tracked public sentiment.However, courts have not al-

ways embraced the concept,usually holding that, al-

though it is within a jurys power to nullify, the jury has

no right to be told of this power.

This column is sponsored by theCBA Criminal Law Section. It fea-tures articles written by prosecu-tors, defense lawyers, and judges toprovide information about case law,legislation, and advocacy affectingthe prosecution, defense, and ad-ministration of criminal cases inColorado state and federal courts.

Reproduced by permission. 2004 Colorado Bar Association,33 The Colorado Lawyer71 (December 2004). All rights reserved.


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by informationwithout a grand jurysreview.

Unluckily for Zenger, DeLancey wasone of the trial judges. He disbarredZengers original defense team and ap-pointed in its place a young lawyer of hischoosing. The clerk of the court and thesheriff tried to pack the jury with Cosbysupporters.4

In a move worthy of Perry Mason,5

af-ter the court-appointed counsels openingstatement, an elderly and bewigged law-yer was helped into a seat at counsel table.To the surprise of the judges and the as-sembled public, Andrew Hamilton an-nounced that he would represent the de-fendant.6 Hamilton, a former attorneygeneral of Pennsylvania,recorder of Phil-adelphia, and speaker of the Pennsylva-nia Assembly, was considered the ablestlawyer in the colonies.

At the time,the judge or judges in a libeltrial would decide whether a writing was

legally libelous.Thus, the only jury ques-tion was whether the defendant had pub-lished the alleged libel. The courts of thatera did not recognize truth as a defense.

Hamilton immediately electrified thecase by admitting that his client printedand published the Weekly Journal, throw-ing the prosecutions plans into disarray.He then stated that in Zengers defense,he would prove the truth of the state-ments in the newspapers. Justice De-Lancey did not want a parade of witnessesswearing to the corruptness and inepti-tude of his patron, the Governor. There-

fore, he ordered Hamilton not to arguetruth as a defense.Justice DeLancey theninstructed the jury that, because the factsof the case were clear, their duty under thelaw was to find the defendant guilty.

Hamilton argued that free men mustdefend themselves against tyranny, andthat it was each jurors duty to follow hisown conscience and not the judges. Heasked them to decide that the newspaperarticles were not libelous in spite of thecourts instruction that they were.7 Movedby Hamiltons eloquent arguments, the

jury acquitted Zenger. This act by the ju-

ry signaled the beginnings in this countryof both freedom of the press and jury nul-lification.

Jury Nullification in theUnited States

In 1794,in Georgia v. Brailsford,8 ChiefJustice John Jay presided over a jury trialbefore the U.S. Supreme Court. He in-structed the jury:

[O]n questions of fact, it is the provinceof the jury, on questions of law, it is theprovince of the court to decide. But itmust be observed that by the same law,which recognizes this reasonable distri-bution of jurisdiction, you have never-theless a right to take upon yourselvesto judge of both, and to determine thelaw as well as the fact in controversy.9

Thus, the Supreme Court acknowledgednullification as an acceptable practice.

However, the lower courts that consid-ered the issue of nullification were am-bivalent about its legality. In an 1804 case,

People v. Croswell,10Alexander Hamilton(no relation to Andrew) defended a manwho had been convicted of libeling Hamil-tons old political rival,President ThomasJefferson.Hamilton argued for a new trialon the basis that the trial court improper-ly instructed the jury that they could not

judge the law of seditious libelthe same

charge Zenger faced. The New York Su-preme Court was evenly split on whetherHamilton was correct.11

Nullification began to fall into disfavoras revolutionary fervor faded with time.

As early as 1820, two Quakers werebarred from serving on a Rhode Island ju-ry because the court believed that theirreligious beliefs would lead them to acquit

where death was the only possible pun-ishment.12 Faced with juries acquittingguilty, but sympathetic, defendants tospare their lives, states began establish-ing different degrees of murder and elimi-nating mandatory capital punishment. In1837,Tennessee became the first state toallow jurors to decide whether the deathpenalty was an appropriate sentence.13

The first major case in this country todeny jurors the right to nullify was Unit-

ed States v. Battiste,14 in which the U.S.District Court in Massachusetts held that

72 Criminal Law Newsletter December

72 / The Colorado Lawyer / December 2004 / Vol. 33, No. 12

William Penn, better known to Americans as the founder of Pennsylvania, had a histo-ry of arrests in England for espousing his Quaker beliefs, which were extremely unpopu-lar with the British government.1 In 1670 London, he protested the authorities closing ofthe Quaker meeting house by taking to the streets to preach. He was arrested along witha colleague named William Mead.2

Penn and Mead questioned the legality of their indictment when they were forced to

represent themselves at trial. Castigating them for their impudence in seeking to teachthe Court what Law is, the judge told Penn several times to stop his Mouth, before fi-nally throwing him out of the courtroom. The judge then admonished Mead, You de-serve to have your Tongue cut out.3 (And we think we have tough judges!)

The jury eventually found the two guilty of speaking in Gracechurch Street, but re-

fused to include the words to an unlawful assembly.4 The trial court would not acceptthis verdict; the Recorder of the Court stated, Gentlemen, you shall not be dismist tillwe have a Verdict, that the Court will accept; and you shall be lockd up, without Meat,Drink, Fire, and Tobacco; you shall not think thus to abuse the Court; we will have a Ver-dict, by the help of God, or you shall starve for it.5 The court then adjourned until 7:00 thenext morning, locking in the jury without so much as a Chamberpot, tho desired.6 Theverdict remained the same the next morning and the next. Upon the courts refusal toaccept this verdict, the foreman declared that the jury found both defendants not guilty.7

In response, the judge fined each juror forty marks and imprisoned them all for their failureto pay.8

NOTES

1. Penn and Mead, The Tryal of William Penn and William Mead for Causing a Tumult (first pub-lished 1719), Don C. Seitz, ed. (Boston, MA: Marshall Jones Co., 1919).

2. Conrad, Jury Nullification: The Evolution of a Doctrine(Durham, NC: Carolina Academic Press,1998) at 25.

3. Penn and Mead, supra, note 1 at 11-17.4. Id.at 23.5. Id.at 24.6. Id.at 20-26.7. Postgate, Murder, Piracy and Treason: A Selection of Notable English Trials(Boston, MA:

Houghton Mifflin Co., 1925) at 53.8. Penn and Mead, supra, note 1 at 34. Bushel (or Bushell), a wealthy man, applied for a writ of

habeas corpus, which declared illegal the trial courts order punishing the jurors. Bushells Case, 6Howells State Trials 999 (1670).

The Trial of William Penn


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although jurors had the power to nullify,they did not have the moral right to do so.The court stated that jury nullificationled to uncertainty, because it would beimpossible to ascertain the jurys inter-pretation of the law, and there was noremedy for a party injured by impropernullification.15

Nevertheless, some states clung to jury

nullification as a valid defense of the indi-vidual against the government. In 1820,Connecticut legislators passed a law re-quiring that the judge could only state hisopinion of the criminal law.16 In 1827,the Illinois criminal code provided that ju-ries shall be judges of the law and fact.17

Maryland and Indiana both revised theirstate constitutions in 1851 to guarantee a

jurys right to nullify.18

By the mid-1800s, jury nullificationemerged as a defense to certain types ofunpopular charges. Northern jurors rou-tinely nullified the Fugitive Slave Act of

1850 and acquitted those who assisted es-caping slaves.In UnitedStates v. Morris,19

an African-American lawyer was chargedwith helping a client, a former slave, es-

cape from a Boston courtroom from whichhe was being extradited back to Virginia.Morriss lawyer argued that the juryshould decide whether the Fugitive Slave

Act was constitutional, regardless of thejudges opinion.20 The court instructed thejury eloquently about the public scrutinyto which a judges decision is held andabout the need to enforce the law,however

unpopular.21

Regardless, the jury re-turned a not-guilty verdict.22

The state courts began differing on thelegality of jury nullification. In 1849,Ver-mont held that juries had the power tonullify and that such power is equivalentto right.23 The Vermont Supreme Courtdiscussed the jurys traditional role as pro-tector of the individual against a corruptand oppressive government and as ashield against judges who may favor theprosecution.24

However, in 1855,in Commonwealth v.Anthes,25 the Massachusetts Supreme

Court held unconstitutional a law allow-ing juries to decide both the fact and thelaw.26 The Court held that it denied thedefendant the right to certainty and to a

government of laws and not of men.27Asthe 1800s waned, more state supremecourts followed, ruling jury nullificationan unsound doctrine.28

In 1895,the U.S.Supreme Court decid-edSparf v. United States,29 dealing a re-sounding blow to juror independence.Sparf and Hansen were two sailorscharged with murder on the high seas.

During their trial, at least one juror askedthe court several times to clarify whetherthe defendants could be found guilty ofmanslaughter and if they would receivethe death penalty if convicted of murder.

The trial court instructed the jury thatif a felonious homicide has been commit-ted, of which you are to be the judges fromthe proof, there is nothing in this case toreduce it below the grade of murder.30

The jury convicted Sparf and Hansen,who appealed partially because the juryshould have been instructed that theycould find the defendants not guilty in

spite of the law. The Supreme Court heldthat juries have no right to judge the law.Instead, the law must be administeredwithout confusion and uncertainty:

2004 Criminal Law Newsletter 73



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Indeed, if a jury may rightfully disre-gard the direction of the court in mat-ter of law,and determine for themselveswhat the law is in the particular casebefore them, it is difficult to perceiveany legal ground upon which a verdictof conviction can be set aside by thecourt as being against law.31

The lengthy opinion catalogues the case

law against jury nullification, and evenquestions the accuracy of the publishedtext ofBrailsford.32 Justice Gray, in dis-sent, called the jury the chief security ofthe liberty of the citizenagainst prejudiceand oppression.33

Most courts considering jury nullifica-tion in the United States tend to followthe holdings inBattiste andSparf. Ac-cording to these cases, jurors have thepower to nullify, but the courts do nothave to inform them about this power.

Race and Jury Nullification

A primary criticism of jury nullificationin this century is that it sways with thepolitical winds, whether positive or nega-tive.One example of this is presumed nul-lification in cases of racial prejudice.Manyonlookers believe that racial prejudice ledto jury nullification in the acquittals of thepolice officers in the Rodney King beatingtrial.34 Race also may have played a role inthe trials of Byron De La Beckwith, whokilled civil rights leader Medgar Evers in1963.Two all-white juries in 1964 hung inspite of strong evidence against Beckwith,who was finally convicted of killing Evers

thirty years after the murder.35Evidence of lynchers benefiting from ju-

ry nullification is anecdotal.For instance,few lynchings in the south were fully in-

vestigated and prosecuted, a situation onecommentator has called preemptive nul-lification.36 This may have been becausethe authorities themselves were not inter-ested in bringing the killers to justice orthey knew that a jury would refuse to con-

vict.A well-known and shocking case of

racially-motivated nullification is that ofEmmett Till,a 14-year-old African-Ameri-

can boy who allegedly whistled at a whitewoman in Mississippi in 1955. He was ab-ducted, tortured,and killed;his body wasdumped in the Tallahatchie River. Twowhite half-brothers were tried before anall-white jury. The local sheriff, HaroldStrider, refused to help the prosecutionand testified for the defense. When

African-American reporters entered thecourtroom, he greeted them with, Hello,niggers.37 The brothers defense attorney

argued to the jury, I know every last An-glo-Saxon one of you has the courage toacquit these men.38 They did just that.Anew investigation into the case was finallyopened in 2004 by the U.S. Jutice Depart-ment.

Recent Jury NullificationIssues

In modern times, jurors have nullifiedthe cases of Viet Nam war protesters,medical marijuana users, and batteredwomen.In 1989, the Fully Informed Jury

Association (FIJA) was formed to edu-cate prospective jurors about their right tonullify the law.39 FIJA has produced ju-rors rights pamphlets and distributedthem outside notorious cases like those ofthe Branch Davidians, survivalist RandyWeaver, right-to-die advocate Dr. JackKevorkian,and Hollywood madam HeidiFleiss.40

FIJAs message has been somewhat

tainted by reports of its ties to far-right or-ganizations and the militia movement.41

FIJA has been unsuccessful in its at-tempts to get jurors rights amendmentspassed in several states.42

Even in states that have constitutionalprovisions guaranteeing the right of jurynullification, modern courts have repeat-edly ruled against the doctrine.43 How-ever, the courts have routinely refused to

violate the sanctity of the jury room andhave stopped short of inquiring into jurydeliberations, except in the most extremecircumstances. The Second Circuit, in

United States v. Thomas,44 held that a ju-ror cannot be removed from a jury with-out proof beyond doubtthat the juror in-tended to disregard the trial courts in-structions.According to the court, if thereis any possibility that the juror is trying toapply the law, any inquiry into delibera-tions must stop.45

The Law in ColoradoIn a 1997 case,People v.Kriho,46 a juror

was convicted of contempt for not reveal-ing her personal beliefs about drug laws

and her past criminal history duringvoirdire.The prosecutions case against her in-cluded evidence of juror deliberations.TheColorado Court of Appeals held that ifthere is any possibility a juror is basinghis or her decision on the sufficiency of theevidence, courts should not inquire into

jury deliberations.The court stated thatthis position protects jurors from intimi-dation and the fear of criminal chargesbased on a verdict that might be unpopu-

lar to the prosecution.Further, it preventschallenges to jurors and mistrial requestsby defense lawyers who sense an immi-nent unfavorable verdict.47

However,Colorado courts have been re-luctant to specifically enunciate a clearposition on nullification. The closest casehas beenPeople v. Wilson.48 In that 1998case, the Colorado Court of Appeals dis-

cussed varying states laws on both sidesof the issue.The Wilson court, which ulti-mately held that it was not error for aprosecutor to tell a jury that they were du-ty-bound to follow the law,stated that theissue of nullification is best avoided.49

Jury Nullification StudiesCourts in the United States are reluc-

tant to question juries deliberative proc-esses. Therefore,absent self-reporting by

jurors, there is no way to know whether anot-guilty verdict is the result of nullifica-tion or of a thorough testing and rejection

of the governments case.Maryland, which has a constitutional

jury nullification provision, gives the fol-lowing routine instruction:

Members of the jury, this is a criminalcase, and under the Constitution andthe laws of the State of Maryland, in acriminal case the jury is the judge of thelaw as well as of the facts in the case.Sothat whatever I tell you about the law,while it is intended to be helpful to youin reaching a just and proper verdict inthe case, it is not binding upon you asmembers of the jury and you may ac-

cept or reject it.And you may apply thelaw as you apprehend it to be in thecase.50

A survey of Maryland trial judges re-vealed that most thought that the in-struction had a minimal impact on ver-dicts and that juries usually followed the

judges instructions.51

Scholars have studied mock jurors be-havior when told of their power to nullify.Jurors who were given a radical jurynullification instruction tended to discussthe instruction and the defendants char-acter more and the evidence less.52 They

also tended to talk about their personalexperiences more than juries that had notreceived the nullification instruction.Per-haps not surprisingly, the nullification-instruction juries acquitted more thancontrol juries in euthanasia cases withsympathetic defendants. However, theyconvicted more often in drunk-drivingcases.53

Similarly, mock jurors were more likelyto nullify if the defense lawyer brought up




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nullification than if the judge presented itin the jury instructions. However, theirtendency to nullify was reversed when aprosecutor challenged the defense law-yers nullification arguments by objectingand reminding the jurors of their legal du-ty.54

A 2003 study by the National Centerfor State Courts examined hung juries,

surveying jurors to determine how fre-quently and why they nullified.The studyreviewed cases in the cities of Los Ange-les, New York,Phoenix, and Washington,D.C.The study concluded it was unlikelythat jury nullification plays a dominantrole in the large majority of [hung jury]cases.55 Jurors responsible for hung ju-ries expressed concerns not only about thelaws fairness and the fairness of the tri-als outcome, but also about the evidencepresented. Finally, the results showedthat jurors considered so many variablesin the decision-making process that race

was not a significant factor in verdicts.

Practical ConsiderationsA prosecutor, when faced with a jury

nullification argument, can usually rely

on the judge to remind jurors of theiroaths to follow the law as given to them inthe courts instructions. Defense practi-tioners may consider jury nullification asa tactic, albeit one of last resort.If so,theymay consider the following.

First, the defense lawyer should makesure the case is appropriate for nullifica-tion. In other words,he or she should de-

termine whether the clients situation isone that engenders outrage among ordi-nary citizens (not just among defense law-yers).

Second, the defense lawyer should ex-plore ways to use a defense that is basedon the law. For example, this might in-clude entrapment, lack ofmens rea,duress, or choice of evils. In the authorsobservation,defense lawyers rarely actu-ally argue nullification,although most willadmit to having at least one case wheretheir defense was essentially nullifica-tion.

Third, the best argument for nullifica-tion is to a jury of one. The cases emo-tional impact may lead the prosecutor todo justice as opposed to merely seeking aconviction, thus obviating the need for atrial.

Fourth,a lawyer who argues that a juryshould ignore the law may have ethicaltroubles.56 Telling a jury to disobey the

judges instructions could be problematic,although there is a good faith argumentthat jurors have the power to nullify andthat lawyers should be allowed to tellthem about it.According to Colorado Ruleof Professional Conduct 3.1,a . . . lawyer

for the defendant in a criminal proceeding. . . may nevertheless so defend the pro-ceeding as to require that every elementof the case be established. However, it isnot clear whether a defense attorney mayargue nullification if every element of theprosecutions case is established and thereis no other possible defense.

One proposal, suggested by Universityof Colorado Law Professor H. Patrick Fur-man, would involve providing some legalrestraints on jury nullification: defensecounsel could raise the issue in a pretrialmotion and attempt to establish some

support for arguing it to a jury. The caseshould have specific facts that militatestrongly in favor of the defendant. If thecourt rules that the case is one that is ap-propriate for the jury to consider nullify-ing, an instruction similar to the Mary-

2004 Criminal Law Newsletter 75


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land instruction could be given. However,the instruction also should tell the jurythat there is a presumption in favor of thelaw, which could be overcome only by cir-cumstances that strongly indicate that

justice would best be served by finding thedefendant not guilty.57

Such an approach might be appropri-ate, for example, in a case of innocent pos-

session of a controlled substance.Imaginea scenario in which a mother flushesdrugs she finds in her sons room insteadof calling the police. The current state ofColorado law is that any knowing posses-sion is illegal.58 If a case such as this wereprosecuted,the jury could decide whetherthe mothers actions were morally appro-priate and, therefore, in their eyes, legal.Thus, nullification could be an effectivetool for justice if given legal boundaries.59

ConclusionJury nullification has traced a colorful

path through American jurisprudence,re-flecting the emotional and political opin-ions of the common man. Courts havebeen less likely to embrace juror inde-pendence, generally only doing so duringtimes when jurors are seen as necessaryprotections against overreaching or un-

just governments.Colorado has recently embarked on

widespread criminal jury reform to givejurors more ownership of their verdictsand to give the general public more confi-dence in the judicial system.For instance,

jurors are now permitted to take notesand to ask questions of witnesses.60 Itmay be a logical next step to advise jurorsof their power to nullify the law.

NOTES

1. Alexander,A Brief Narrative of the Caseand Trial of John Peter Zenger, Printer of the

New York Weekly Journal (1736, reprinted,Cambridge, MA: Belknap Press of HarvardUniv. Press, 1963) (introduction by StanleyNider Katz).

2. Postgate,Murder, Piracy and Treason:ASelection of Notable English Trials (Boston,MA:Houghton Mifflin Co., 1925) at 126.

3.Id. at 127-130; Alexander, supra, note 1at 5-8 (introduction by Stanley Nider Katz).

4. Postgate,supra, note 2 at 130-133.5. Mystery novelist Erle Stanley Gardner

created the Perry Mason character in the1930s.

6.Alexander, supra, note 1 at 22.7. Postgate,supra, note 2 at 133-142.8.Brailsford, 3 U.S.(3 Dall.) 1 (1794).

9.Id.at 4.10. Croswell, 3 Johns.Cas. 336 (S.Ct.N.Y.

1804).11.Id.at 362.12. U.S. v. Cornell, 25 F.Cas. 650, 655

(C.C.D.R.I. 1820) (Quakers entertain peculiaropinions on the subject of capital punish-ment.).

13. Conrad,Jury Nullification: The Evolu-tion of a Doctrine (Durham,NC:Carolina Aca-

demic Press, 1998) at 208.14.Battiste, 24 F.Cas.1042 (D.Mass. 1835).15.Id.at 1043.16.Conrad, supra, note 13 at 88 n.90.17.Id.18. Md. Declaration of Rights Art. XXIII;

Ind.Const.Art. I, 19.19.Morris, 26 F.Cas.1323 (D.Mass.1851).20.Conrad, supra, note 13 at 82.21.Morris,supra, note 19 at 1336.22.Conrad,supra, note 13 at 82.23.State v. Croteau, 23 Vt. 14,45 (1849).24.Id.at 21-22.25.Anthes, 71 Mass.185 (1855).26.Mass.Acts & Resolves 1855, ch.152.27.Anthes, supra, note 25 at 224.28.See, e.g., State v. Burpee, 65 Vt. 1 (1892);

Commonwealth v.McManus,143 Pa.64 (1891);State v.Wright, 53 Me. 328 (1865).

29.Sparf, 156 U.S.51 (1895).30.Id.at 61-62 n.1.31.Id.at 101.32.Brailsford,supra, note 8.33.Id.at 176-77.34. Butler, Racially Based Jury Nullifica-

tion:Black Power in the Criminal Justice Sys-tem, 105 Yale L.J. 677,696,722 (1995).Profes-sor Butler advocates racial nullification by

African American jurors. He argues that thejurors should decide for themselves whetherthe African American community is better off

when someone who commits a minor, non-vio-lent crime remains within the community in-stead of going to prison.If so, they should votenot guiltyin spite of the evidence.

35.Conrad, supra, note 13 at 168. Beckwithapparently had jury nullification literature dis-tributed outside his third trial, to no avail.Id.

36.Id. at 174.37.Id. at 180, citing Whitfield,A Death in

the Delta:The Story of Emmett Till (New York,NY:Free Press,1988) at 43.

38. Conrad, supra, note 13 at 179, citingThernstrom,America in Black and White:One

Nation, Indivisible (New York, NY: Simon &Schuster,1999) at 515.

39. The Fully Informed Jury Associationwebsite is http://www.fija.org.

40.Conrad, supra, note 13 at 159.41.Id. at 160, citing Lambert, More Angry

Men:Militias are Joining Jury-Power Activiststo Fight Government, Wall Street J. (May 25,1995).

42. Note,Jury Nullification: Assessing Re-cent Legislative Developments, 43 Case W.

Res. L.Rev. 1101 (1993).Among the states thatconsidered fully informed jury laws,but ulti-mately rejected them,were Arizona,Louisiana,Massachusetts, New York, Tennessee,Texas,and Washington.

43.See, e.g., Beavers v. State, 236 Ind. 549(1957);Thomas v. State, 29 Md.App.45 (1975);

Montgomery v. State, 292 Md. 84 (1981);Kansas v. McClanahan, 212 Kan.208 (1973).

44.Thomas, 116 F.3d 606 (2d Cir. 1997).

45.Id.at 621-22.46.Kriho, 996 P.2d 158 (Colo.App.1997).47.Id.at 167-68.48.Wilson, 972 P.2d 701 (Colo.App.1998).49.Id.at 706.50. Wyley v. Warden, 372 F.2d 742, 743 n.1

(4th Cir.1967), cert.denied, 389 U.S.863 (1967).51. Jacobsohn, The Right to Disagree:

Judges, Juries, and the Administration ofCriminal Justice in Maryland, 1976 Wash. U.

L.Q. 571,585-87.52.Horowitz,Jury Nullification:The Impact

of Judicial Instructions,Arguments,and Chal-lenges on Jury Decision Making, 12Law &

Hum. Behav. 439,444 (1988). In one study, ju-rors were given two different sets of instruc-tions: (1) a standard, non-nullification instruc-tion;or (2) a nullification instruction that stat-ed, . . . [W]hile you must give respectfulattention to the laws[,] you have the final au-thority to decide whether or not to apply a giv-en law to the acts of the defendant on trial. . . .[Y]ou represent (the community) and . . . it isappropriate to bring into your deliberation thefeelings of the community and your own feel-ings based on your conscience. . . . [N]othingwould bar [you] from acquitting the defendantif [you] feel that the law, as applied to the factsituation before [you,] would produce an in-equitable or unjust verdict.The first two partsof the latter instruction are similar to those al-

lowed in Georgia, Indiana,and Maryland; thethird part was a radical nullification instruc-tion.Id. at 444.See also Horowitz,The Effectof Jury Nullification Instruction on Verdictsand Jury Functioning in Criminal Trials, 9

Law & Hum. Behav. 25 (1985).53.Id.54.Id.55.Hannaford-Agor and Hans,Nullification

at Work? A Glimpse from the National Centerfor State Courts Study of Hung Juries, 78Chicago-Kent L.Rev. 1249,1276 (2003).

56. Conversation with H. Patrick Furman,Clinical Professor and Director of Clinical Pro-grams, University of Colorado School of Law

(July 19, 2004).57.Id.58.People v. Barry, 888 P.2d 327 (Colo.App.

1994).59.Furman,supra, note 56.60. Kourlis and Leopold, Colorado Jury

Reform, 29 The Colorado Lawyer 21 (Feb.2000).I



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Jury Nullification by Mary Claire Mulligan