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Monday, November 23, 2009

Jury Nullification Requires an Open Door Policy

Mr. Schwartz goes to Woburn

As many of you know, I am very active in the Pro Bono Initiative of the American Society of Trial Consultants. I head up the New England Team and I am working hard to get the word out that there are consultants willing, ready and able to help out with cases involving clients of limited means. As part of this effort, I have arranged with the Middlesex Defense Attorneys (MDA), the folks who administer the Bar Advocates Program for Middlesex County, MA, to hold regular Jury Trial Strategy clinics in Middlesex County courthouses. I hosted the first of these free clinics last week in the Woburn Superior Court. Attendance was great, with lawyers from Suffolk and Worcester Counties, as well as the Middlesex folks.

The cases on which the attorneys wanted advice were quite substantively diverse. They included assault, child molestation, accessory to murder and filing a false police report. One might imagine that this set of cases would have little in common. In fact, there did seem to be a common thread to several cases. While the state had a strong case that the defendant had, in fact, violated the relevant statute, there was something about the defendant, or the circumstances of the crime, that might lead a jury to be reluctant to convict.

The Law vs. The Defendant

That's right, broadly defined, these were nullification cases. Given the broad spectrum of those who read this blog, I should probably define jury nullification. That turns out to be a tricky proposition, in and of itself, and many an academic article, dissertation or book have been dedicated to providing such a definition. Luckily for us, I don't have to convince anyone that my definition of nullification is the best one. It just has to be useful for this blog entry. So, for our purposes, jury nullification is simply a decision by a jury to choose a verdict that is not supported by the facts and the law. Importantly, a jury that is simply mistaken about something is not nullifying. The kind of nullification that most scholars talk about -- and is most relevant here -- involves a jury acquitting a criminal defendant despite its conclusion that the defendant has, in fact, violated the law.

Most legal scholars discuss "jury nullification," which describes the circumstance when an entire jury chooses to acquit a defendant, notwithstanding the evidence to the contrary. Documented cases of jury nullification are few and far between. There are, of course, some famous historical examples. Northern juries often refused to convict people of violating the fugitive slave laws prior to the Civil War. Many juries were reluctant to convict draft card burners during the Vietnam War. Much less well documented, but undoubtedly more common, are instances of "juror nullification," when an individual juror (or several) refuses to vote for conviction. From a defense attorney's perspective, juror nullification is a more realistic goal. It might not be possible to convince an entire jury to show mercy on the defendant, but one can try to give at least a few jurors something to think about.

There are only two states, Maryland and Wisconsin, where an attorney is permitted to mention jury nullification explicitly. This is probably just as well, since most people are very reluctant to admit to themselves that they are circumventing the law, ignoring the judge's instructions and violating their oaths as jurors. Self-perception is a very important part of a person's mental health. No-one likes to think of himself as dishonest, untrustworthy or lawless. As such, if your case turns on your ability to convince jurors to knowingly nullify, you have a very steep uphill battle in front of you.

The Road to Nullification

That said, the situation is not really that dire. Jurors will nullify, so long as you allow them to think they are doing something else. How does this work? Fortunately, criminal law is filled with lots of fuzzy concepts requiring juror interpretation. Which witness was more credible? Did the defendant have the necessary intent? What did the defendant know at the time? Was the defendant under the control of another person? These are just a few examples of the sorts of questions that give jurors a lot of wiggle room. Finally, everything is wrapped up in the concept of "reasonable doubt." Just how sure does a juror have to be to convict? Several studies show that jurors self-report more demanding conceptions of reasonable doubt in cases presented more sympathetically to the defendant. That is, when a juror wants to convict, she employs a fairly lax burden of proof (say, 75% certainty), but when she has reservations, the same juror might employ a much stricter threshold (say, 90%).

So, get out your pencils (or PulsePens or iPhones). Here's what you need to get jurors to nullify (ssshhhhh..... they might hear you):

1) You need a hook.

You'd better have a client or a statute or a case or an extenuating circumstance that is likely to engender reluctance to convict. Whatever hook you have needs to be something you can bring out in court. You can't count on jurors to just assume great things about your client.
Examples of such hooks include:

A) Nothing will be accomplished by sending the defendant to jail.
B) Prosecuting the defendant is unfair, given what has happened to others doing the same things (accomplices perhaps).
C) The defendant is so young that a conviction will ruin his life.
D) The victim is just as responsible (or is a bad person).
E) The state is wasting everyone's time by bringing this case.

2) You need a door.

Now that you have planted the hook, with any luck (and skill on your part), some of the jurors will be looking for a way to escape from convicting your client. The law seems pretty clear and the judge has repeated several times that each juror has sworn an oath to follow the judge's instructions. Whatever is a compassionate juror to do?

You have to provide a way for a juror to find for your client while simultaneously believing that she has done her civic duty to the best of her ability. That is, it is your job to show the juror how to both vote "not guilty" and also go home feeling good about herself. You need to show her the door she can walk through.
Examples of such doors include:

A) A list of forensic evidence that was never collected.
B) The absence of an eyewitness.
C) Inconsistencies in testimony of the victim or other witnesses.
D) Sloppy police work.
E) The importance of any mens rea requirement (No one can know for certain what the defendant was thinking).
F) The ambiguity of language in the statute

All of these elements are meant to introduce uncertainty in the minds of jurors. You have just shown them the door. Now you just need to give them permission to open it. That is where the reasonable doubt requirement (and the burden of proof) comes in. It is essential that you emphasize in closing arguments both that the burden is completely on the state to prove its case and that the reasonable doubt standard is a very demanding one. Be sure to point out that the state must prove every element of the offense beyond a reasonable doubt.

Obviously, a strict liability crime affords fewer "outs" for your sympathetic jurors. Hopefully, the state's case has at least one weak link you can pry at. Your argument only needs to pass the sniff test -- it doesn't have to be persuasive. Your job is to provide ammunition for those jurors who are on your side to begin with.

If you've done your job, a juror who doesn't want to convict your defendant can, with a straight face, explain to her fellow jurors that, while she might think the defendant is guilty, the DA just didn't prove the case beyond a reasonable doubt. "Gee folks, I really want to vote with you, but I just can't do so in a good conscience."

3) Don't push.

Jurors are constantly speculating about things they know nothing about. What else could the police have done? Did that witness get a deal? What was girlfriend's real relationship with the defendant's mother? Would we really be here today if the defendant were white? It is this speculation that allows a defense attorney to encourage nullification just by emphasizing the uncertainty in the process. The more unsure are the jurors, the more they will speculate about things not in evidence.

That said, jurors distinctly resent being told what conclusions to draw from the evidence (or lack thereof). When people believe that their choices are being dictated by others, they tend to experience reactance, which is a tendency to rebel against the perceived loss of autonomy. Suddenly, the options that have been taken away seem more appealing (Just think of any teenager who has been forbidden from doing something).

Now that you have your jurors looking for a way out and you have offered them an exit, you need to resist the temptation to connect the dots for them. A juror might be sympathetic to a high school kid who got caught sharing pot with his friends. That juror might be inclined to use uncertainty about who originally purchased the pot to avoid voting guilty on a distribution charge. But you have to let the juror come to that conclusion on her own. If you tell her to take those specific steps, she will question your motivation. She might feel manipulated. She might face derision from other jurors for having "bought what the defense was selling."

You can show your jurors the door, but they have to walk through it on their own.

Is this really Nullification?

This really boils down to semantics at this point. I helped a lawyer secure a hung jury (with no retrial) in a statutory rape case involving two teenagers. The complaining witness's account was full of holes and inconsistencies. Since statutory rape is a strict liability crime, however, the jury only needed to conclude that the two had sex -- ever -- to find the defendant guilty. Clearly, extralegal factors, such as the defendant's age, the asymmetry of the situation, tepid support for such laws and the absence of violence played a role in the jurors' evaluations of the case. So, that would suggest labeling this a case of jury nullification. On the other hand, had the state's case been ironclad, I am convinced the jury would have voted guilty. So, the verdict was really the result of a delicate interplay of the strength of the case and the jurors' predictable ambivalence about the trial. Our strategic victory was successfully playing one off against the other.


  1. Matthew M.8:32 AM

    I really enjoyed reading this. I like the road map you outlined and found the reasoning for each step very interesting.

    I wonder, would the opposite be true for a prosecutor who was trying to close the door on nullification? Could the same map (with some tweaks) be applied to a particularly sympathetic victim or a particularly vile offense? Just a thought.

  2. Clearly, a prosecutor should be aware that a wily defense attorney will push these tactics. Most DAs already hammer away at the "You took an oath to uphold the law and follow the judge's instructions" theme. One potentially useful strategy for the prosecutor is to call out the defense for being manipulative. The danger here is that jurors might resent the implication that they could be manipulated so easily. So, a DA has to choose her words very carefully. (Always a good idea anyway)