Informing the Public of Jury Nullification: Is It Jury Tampering?

I’ve written before about jury nullification. I generally believe that it is a great tool that the general public has at its disposal to render laws it disapproves of ineffective. And despite some of its negative consequences, it is an invaluable check on the power of the government, but many jurors are not aware that they have a right to acquit a defendant for any reason, regardless of the weight of the evidence against them

Perhaps in an attempt to remedy this fact, a political activist has spent much of his free time standing in front of a federal courthouse, giving passersby pamphlets containing information about jury nullification, presumably in the hope that some of them would be jurors, and that they would take his message to heart.

This conduct is clearly protected speech, right? Surely, what he’s doing couldn’t be considered a crime. Apparently, some would disagree: he’s been arrested and charged with jury tampering.

It should be noted that the defendant had no idea which, if any, of the people he spoke with were jurors. He didn’t ask anyone if they were a juror, and did not discuss particular cases. The literature he passed out was simply a general explanation of the concept of jury nullification.

I would understand the government’s actions completely if this person were singling out jurors, or discussing specific cases. After all, the integrity of the jury system is essential to the functioning of our criminal justice system. And one of the most important elements of that integrity is insulation from outside influences.

On the other hand, when jurors consider the evidence presented to them, and weigh it against the law as instructed to them by the judge, they’re not expected to forget about their life experience, and the common sense they’ve hopefully acquired as people living in the real world. After all, we’re entitled to a trial by a jury of our peers, and, as our peers, jurors are expected to use their common sense and experiences, which they presumably share (to a degree) with the defendant.

If jurors learned about, and formed their opinions on, jury nullification through the ordinary course of their lives, it’s obvious that there would be no problem with this. I don’t see why it should be any different if a juror happens to find out about jury nullification right before serving on a jury.

After all, courts have repeatedly held that jurors are allowed to engage in jury nullification without any repercussions, so it probably shouldn’t matter if they learned about the concept of nullification a month or an hour before serving on a jury.

On the other hand, if the defendant were distributing information about cases he knew were being tried at that courthouse, and airing his opinions of a defendant’s guilt or innocence, he would probably be committing a crime, especially if it could be shown that he was knowingly targeting individual jurors.

This appears to be a pretty clear-cut case of political advocacy, which is unambiguously protected by the First Amendment.

Hopefully, this case will be dismissed on First Amendment grounds, before it goes any further. One of the most basic elements of a free society is the right to express information and ideas without fear of any legal repercussions. This right is just as essential (if not more essential) when it is applied consistently to protect unpopular speech.

Many people may simply believe that a guy handing out pamphlets in front of the courthouse is a crackpot or rabble-rouser. They’re free to believe that, and he could be, for all I know. But that shouldn’t matter, even if it’s true.

Even if you believe that his ideas are wrong, I don’t see how one could be opposed to letting him freely express them.

Now, the right to free speech is not 100% absolute, and can be balanced against compelling government interests. And there’s no doubt that the government has a very strong interest in maintaining the integrity of the jury system. However, it’s hard to argue that this man’s conduct did any significant harm to the jury system.

If anything, informing jurors of this important check on state power only strengthens the jury system.

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