Can I Go to Jail for Jury Nullification?

The short answer is no. This principle comes from Bushell’s Case, a 1670 English ruling. Edward Bushell was a juror in a case against William Penn and William Mead. The two were charged with holding a “tumultuous assembly.” (They held an illegal Quaker meeting in the street after authorities had closed their meeting house.)

The jury, which included Bushell, refused to convict Penn and Mead. This infuriated the panel of judges, who locked up the jury without food or water until they arrived at a “correct” verdict. The jury refused to change their verdict, resulting in Penn and Mead’s acquittal.

The justices were not satisfied. They fined the jurors and sent them to prison until the fine was paid. Bushell was one of the jurors who refused to pay the fine, and remained in prison as a result. He appealed his case, where a higher court overruled his punishment. The judge’s ruling established the enduring principle that jurors cannot be punished for their verdicts.

The strange case of Laura Kriho

Laura Kriho is a jury nullification advocate who was charged with contempt of court while serving as a juror. In a 1994 Colorado case, Kriho was on a jury deciding the fate of a defendant charged with drug possession. Kriho, the holdout juror, refused to vote “guilty.”

During deliberations, she told fellow jurors that she believed drug problems should be solved by families, not courts. She also expressed opposition to drug laws in general. Moreover, Kriho explained to jurors the concept of jury nullification.

After the verdict was issued, the judge charged Kriho with contempt of court and fined her $1,200. It was revealed that during the jury selection process, Kriho had failed to reveal her own arrest for a felony drug charge twelve years earlier. Because her case was dismissed and she was never convicted of the drug charges, Kriho believed the matter was settled.

In her trial, the prosecution claimed that Kriho should have known that the court wanted this information about her past, even though she had correctly responded that she had never been convicted of a drug charge. As Judge Harry Nieto explained, “because… the other jurors who testified clearly understood the need to volunteer information… Ms. Kriho was aware of the prior questioning and she was given an opportunity to comment on the topics discussed.”

Therefore, according to the judge’s logic, Kriho subverted justice because she did not divulge more information than necessary during the jury selection process when “given an opportunity.”

On appeal, Kriho’s conviction was overturned and the fine was dropped. Recognizing the danger posed by government intrusion into the jury process, Judge Sandra Rothenberg wrote that this invasion tends to “chill the willingness of our citizens to serve on juries.” Echoing Bushell’s Case, Rothenberg ruled that a juror’s opinions expressed during deliberations cannot be used to convict them.

So if you’re still feeling brave and want to flex your jury nullification rights, here are some things to consider:

Step 1: Be a Quitter [temporarily]

After you receive your jury summons you should immediately cancel membership with organizations that might get you struck from the jury. These include, but are not limited to FIJA, NORML, DPA, the Libertarian Party, MPP, and ACLU.

Failure to mention your affiliation with groups you belong to might get you into legal trouble. It would be useful to “unlike” and “unfollow” Facebook and Twitter groups that advocate jury nullification or reform of drug laws. (You can always rejoin them later when your jury duty term is over.)

Step 2: Tell the Truth & Shut Up

Take the questions literally. Answer as briefly and generally as you truthfully can.

Do you have any political, religious, or philosophical beliefs that might prevent you from delivering a verdict based on the facts? (Not at all. I want to decide a fair and just outcome.)

How do you feel about people accused of breaking the law in question? (They deserve fair trials, like anyone accused of a crime.)

If it is proven beyond a reasonable doubt that the defendant committed the crime, can you set your opinions aside and vote guilty? (Yes, I can.) As trial lawyer and jury nullification expert Clay Conrad notes in response to this question, of course you can. You can also shove your arm down a garbage disposal! That does not mean you are committed to doing so.

The goal is to present an open mind that is concerned with fairness and the facts.

Step 3: DO NOT Mention Nullification in the Jury Room

Just don’t do it. If the judge believes that a juror is thinking about nullification, they will likely remove that juror. But if the juror simply has doubts on the facts of the case, the juror cannot be removed.

The inability to discuss jury nullification openly encourages hung juries. So if you must, hang. Even if the other jurors pressure you, stay true to your principles. Vote your conscience. A “not guilty” verdict might save someone’s life.

Despite Laura Kriho’s ordeal, the likelihood of going to jail for using jury nullification is remote. Regardless, these basic precautions can help you flex your constitutional rights without risking jail time. The greater risk is getting struck from the jury before you get a chance to use your jury nullification right.