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PG IX(K) Jury Nullification Issues And Sanctions Against “Offending Jurors.”
Juror’s Power/Right To Nullify. The power of a jury to nullify (i.e., not follow) what it considers to be an unjust law has long been recognized. (See cases cited in People v. Dillon (83) 34 C3d 441, 490-93 [194 CR 390], Kaus, J., concurring; but see 77 Op.Atty.Gen.Cal. 118, 119 (1994) [“A member of a California trial jury does not have the right to refuse to apply a law which he or she believes should not be applied in a particular case ….”]; see also People v. Williams (2001) 25 C4th 441, 449 [106 CR2d 295].) Nevertheless, the courts have declined to allow instruction on nullification because it affirmatively invites the jury to disregard the law. (Id. at 454-55; see also Dillon, at 491.)
Supplemental Instruction In Response To Jury Inquiry Regarding Nullification. A difficult issue is presented when the jury expressly asks about nullification during deliberation. In Dillon, only Justice Kaus favored instructing the jury on nullification when the jury raises the subject. Hence, the trial court is not required to advise the jury of its power to nullify a verdict even if it so requests. (See People v. Williams (2001) 25 C4th 441, 457 [106 CR2d 295].) However, it is better for the court to re-read CJ 1.00 than to simply respond in the negative to the jury’s inquiry regarding nullification. (People v. Fernandez (94) 26 CA4th 710, 713, fn 2 [31 CR2d 677].)
Affirmative Anti-Nullification Instructions And/Or Sanctions In Response To Threatened Nullification. People v. Sanchez (97) 58 CA4th 1435, 1445 [69 CR2d 16] held, in reliance upon established precedent, that the trial court has no obligation to instruct the jury regarding its power to nullify a verdict even upon inquiry by the jury.
However, Sanchez raised another issue discussed by the dissenting opinion of Johnson, J., as to whether it is proper for the trial court to affirmatively instruct the jury that it does not have the power to nullify and that any jurors who fail to follow the instructions will be sanctioned with removal. (See People v. Williams (2001) 25 C4th 441, 459 n8 [106 CR2d 295] [recognizing but not resolving question of whether”trial court may or must instruct a jury specifically that it has no power to render a verdict contrary to the law or the facts before it].) However, Williams did hold that removal of a juror for exercising his or her right to jury nullification is permissible.
CAVEAT: Williams failed to follow the federal rule regarding the judge’s inquiry. (See United States v. Thomas (2nd Cir. 1997) 116 F3d 606, 614 [if there is any possibility the juror was not actually intending to nullify, the Court of Appeal must reverse for violation of the defendant’s right to a jury untainted by extraneous influences; the power of the court to investigate the matter is extremely limited, meaning that sometimes a court can’t even ask the questions courts usually do in these situations].) These federal issues should be preserved in state court.
RESEARCH NOTES: See FORECITE BIBLIO “Nullification” (BIBLIO N).]
Jury Nullification: The Right to Say No. Scheflin, Alan W., Southern California Law Review 45, 168-226 (1972).
Merciful Juries: The Resilience of Jury Nullification, Scheflin, Alan and Jon Van Dyke, 48 Wash. & Lee L. Rev. 165 (Winter, 1991).]
