Jury Nullification vs Article I, Section 19

Article I, Section 19 of the Indiana Constitution provides “[i]n all criminal cases, whatever, the jury shall have the right to determine the law and the facts.”  This would appear to be straight forward, but despite the short provision, there has been constant debate over what exactly this means a jury can or cannot do.

Many individuals believe that this provision would allow what is known as “jury nullification” or the idea that a jury refuses to enforce the law against someone whom they believe should be acquitted.  However, Indiana Appellate Courts have been clear that this provision is NOT a ticket to constitutionally permissible nullification, going so far as to state “A jury has no more right to ignore the law than it has to ignore the facts in a case.” Bivins v. State 624 N.E2d 928, 946 (Ind. 1994).  One would think such a direct statement should put the issue to rest, but it would be missing a central point: While Article I, Section 19 does not expressly permit jury nullification, the line of cases rather deals with the inappropriate nature of a trial court instructing a jury they could.

Often times attorneys will see logically inconsistent verdicts being handed down in criminal cases, or where someone is not convicted on higher level offenses but are convicted on lesser included offenses (or vice-versa).  For example, an individual is charged with Possession of Cocaine with a Weight at least 28 grams, a Level 5 felony and Possession of Cocaine, a Level 6 felony. If the State of Indiana proves, beyond a reasonable doubt, the essential elements of the Level 5, one could easily conclude that the elements for the Level 6 are also met.  After all, the only difference between the two is the weight of the cocaine.  A jury in Indiana could return a verdict of guilty on both counts, guilty on the Level 5 but not guilty on the Level 6, guilty on the Level 6 but not guilty on the Level 5, or not guilty on both, despite things seeming very straightforward.

This is because Article I, Section 19 gives the jury that right.  While the trial court should not (and cannot) instruct a jury that they have the power the disregard the law, the instructions a jury is provided tell them they determine the law and the facts, that they should not base their decision on sympathy or bias, and that the verdict should be based on the law and facts as they find them.  This is the straightforward way of saying “no” to jury nullification since there’s nothing that explicitly says a jury can disregard the law.  An experienced attorney, however, should also use the instructions to remind the jury of their rights (after all, the instructions are intended to help them in determining a verdict).  This goes beyond simply pointing out the instruction restating Article I, Section 19.

The instructions provided to a jury are quite clear: The State of Indiana must prove their case beyond a reasonable doubt.  If they fail to do so a jury must find an individual not guilty.  This use of “must” is also used in when a jury has two reasonable interpretations of the evidence that they must use the one consistent with innocence (sort of restating another “must” for the jury to fit the evidence into the presumption that an individual is innocent).  Perhaps the most important word choice in the instructions that reflects the Article I, Section 19 rights of a jury is where a jury is informed of the essential elements they must prove beyond a reasonable doubt (again, “must” as to what the State has to do), and if the State of Indiana has met that burden, a jury may find the individual guilty.  The use of “may” over “must” is deliberate and a clear reminder that the jury, in deciding a verdict, may decide to exercise that lenity right.

This distinction between what jury nullification is (from a legal definition) and how the Article I, Section 19 rights are different, underscore the importance of a trial attorney educating the jury on what they can and cannot do.  Often there is disagreement between judges in a trial court, the State of Indiana and a defense attorney on this matter, which requires an understanding of this issue so that appropriate arguments and a detailed record can be made.

If you or somebody you know has recently been convicted of a crime or has questions about the appellate process, contact the experienced criminal defense attorneys at Banks & Brower, LLC.  We are available at all times by calling us at 317-870-0019 or by emailing info@banksbrower.com.