The Trump Trials: Hung Juries and Jury Nullification

What happens if there is a diehard MAGA juror for one of Trump’s trials?

Mistrial by Hung Jury

Some Trump supporters will surely try to hide or play down their dedication to the MAGA cause during the voir dire process in jury selection. They will take it to be their “patriotic duty” to lie their way onto the jury. Even in the face of 11 solid votes to convict, a single juror’s voting to acquit ballot after ballot will eventuate in a mistrial. The criminal courts of Georgia and New York as well as federal courts require a unanimous jury to convict. 

Jury Nullification

Even a juror who admits that there is proof beyond a reasonable doubt of guilt may yet continue to vote acquittal. The juror can, and probably will, be told by the judge that so doing is a clear and egregious violation of the juror’s oath and duty. The judge, however, can neither order the recalcitrant juror to vote a conviction, nor remove the juror, nor yet threaten the juror with any sort of punishment.

A juror’s determination to vote acquittal even against the weight of the evidence and the judge’s instruction on the law is called “jury nullification.” That there is such a thing and that the nullifying juror is completely beyond sanction is indisputable. Some have gone so far as to say that jury nullification is a right. It is a stretch, however, to say that the juror has a right to violate the jury oath and to ignore the judge’s instructions.

A common version of the federal oath:

Do you and each of you solemnly swear that you will well and truly try and a true deliverance make between the United States and ______, the defendant at the bar, and a true verdict render according to the evidence, so help you God?

Typical instructions from the judge to the jury:

You, as jurors, are the judges of the facts. But in determining what actually happened–that is, in reaching your decision as to the facts–it is your sworn duty to follow all of the rules of law as I explain them to you.

You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences.

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It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took. 

Tacit Encouragement of Jury Nullification:

If jurors do not have a right to nullify the law and ignore the evidence, they clearly do have that power. Whether or not the former president or his advisors have had that power in mind, Trump and many of his allies have been the source of a steady chorus of criticism of the prosecutions as illegitimate, partisan misuse of the judicial system for the sole purpose of preventing Trump’s reelection.

His enemies are “going after” him. Judge Chutkan is “highly partisan” and “VERY BIASED and UNFAIR.” Special prosecutor Jack Smith is “deranged”, “crooked” and a “thug.”

Express Encouragement of Jury Nullification

Could MAGA operatives encourage juror misconduct by advertising the availability of jury nullification to the jury pool?  Certainly, discussion and even advocacy of jury nullification as a general principle is fully protected by the First Amendment. Although defense counsel may not breathe a word about jury nullification in front of the jury, there is nothing whatsoever to stop television spots explaining jury nullification targeting Washington, D.C., Atlanta, Manhattan, and the Florida counties of St. Lucie, Martin, Indian River, Okeechobee and Highlands.

Probably fliers urging potential jurors to exercise the power of jury nullification in a Trump case could be proscribed in the courthouse or on its steps by the time, place, and manner exception to the free speech right. Even where leafletting would not otherwise be prohibited, targeting people heading towards the courthouse with a handbill calling for nullification expressly in the Trump case would run the risk of a witness tampering prosecution. Were such handbilling ongoing, it could probably be enjoined.

Even if the content of the handbills was wholly accurate with respect to the law of jury nullification, that would not alone be a defense. A conviction for jury tampering may rest on someone’s conveying to jury members perfectly accurate factual information about the case or the defendant that was ordered suppressed by the court.

Let me now return from handbills intended for individual jurors to speech directed to a broad audience that will inevitably include potential jurors. As argued above, where publication is a general advocacy of jury nullification, it is easy. Free speech must prevail.

What, however, if it is a matter of express argument that Trump in a specific case should benefit from jury nullification? I think there be no ban on such editorials in the New York Post, Fox News, talk radio, or public internet channels.

Here protecting the judicial process from corruption would collide head on with the First Amendment. Free speech should prevail because this editorializing, however great the evil it might cause, would be so close to the protected core of political speech.