Some people are better than others at making decisions. One of the critical skills a judge must possess is the ability to make decisions on a daily basis. Additionally, in order to keep the wheels of justice turning, we require most citizens to appear for jury service if they are summoned, and to serve on a jury if they are ultimately selected. In Colorado, if you are (i) a citizen and resident of the county which has summoned you, (ii) over the age of seventeen, and (iii) able to read, speak and understand the English language, there are very few reasons which will disqualify you from serving on a jury. The Colorado statutes are clear that "[j]uror service is a duty that every qualified person has an obligation to perform when selected." C.R.S. § 13-71-104(1).

As a society, we do not hesitate to pull regular citizens away from their regular lives and force them to serve on juries, but we do not trust jurors enough to give them all of the relevant information about the matter they are being asked to determine, and we do not respect all of their decisions. Last month I wrote about the fact that jurors are typically prohibited from knowing the ramifications of a guilty verdict, unless the jury's participation in sentencing is required. United States v. Young, 403 F.Supp.3d 1131, 1155 (D.N.M. 2019). This withholding of information is part of the reason why the concept of jury nullification is so murky.

Jury nullification is defined as a "knowing and deliberate rejection of the evidence or refusal to apply the law because the result dictated by law is contrary to [each] juror's sense of justice, morality, or fairness." People v. Rodriguez, 2022 COA 11, ¶ 39. The Rodriguez court discussed the tension, between the jury's power to nullify and the instruction given by the court unequivocally informing jurors about their duty to follow the law, stating:

[W]hat every juror has, notwithstanding his, her or their sworn duty to follow the law, is the de facto power to nullify - a power made possible only by the rule that jury deliberations are secret. The jury's power to nullify is directly at odds with the fundamental principle that 'the facts [are] for the jury and the law for the court.' [Internal citations omitted.]

The practice of not informing juries about jury nullification, like the practice of withholding sentencing information, is "inconsistent with trial practices at the Founders' time and [both] practices have eroded the Sixth Amendment jury trial right as the Framers understood that right." United States v. Young, at 1134. Nevertheless, regardless of how these two practices evolved to eliminate rights originally inherent in the Sixth Amendment, as a practical matter, the jury's power to nullify has less legitimacy when jurors are not told about sentencing ramifications.

If, instead, jurors were always informed about the ramifications of a guilty verdict, the jury could decide whether the statutory elements were satisfied and the Defendant should be punished in the manner proposed by the prosecution. An acquittal under these circumstances might resemble the type of jury nullification contemplated by the Framers of the Constitution. In Rodriguez, the trial court (our own Judge Shakes) spoke to the venire about the duty to follow the law, stating that if a Defendant was charged with driving 10 mph over the speed limit on I-25 between Pueblo and Walsenburg, "[y]ou would not be honest to your oath if you were to find the Defendant not guilty because you've driven it and you say it's wide open and 85 is okay." Because today's juries decide only disputed factual issues and are not told about the punishment that a particular Defendant will receive if found guilty, it is easy to understand why jury nullification is often characterized as a violation of the juror's oath. If all of the evidence points to speeding, it would be wrong for a juror to simply decide that the Defendant was not speeding. However, if the jury was asked to determine whether the Defendant should be imprisoned for a year for going 10 mph over the speed limit on that stretch of highway, the power of jury nullification seems more legitimate. Shouldn't we be asking juries to determine whether a Defendant is guilty of the criminal conduct described as "x" and punished by "y"? It seems necessary to know both the required elements and the proposed punishment in order to fully-understand whether a Defendant's actions align with what the community has deemed to be criminal conduct.

Courts have described the jury nullification power as an "integral part of the law itself, serving the unique and vital function of smoothing the friction between law and justice, and between people and their laws." See State v. Hatori, 92 Hawai'I 217, 222-223, 990 P.2d 115, 120-121 (Haw.Ct.App. 1999), referenced with approval in People v. Waller, 412 P.3d 866, 878 (Colo.App. 2016). The Hatori court acknowledged the argument that instructing jurors on their nullification power "informs [them] of their responsibility to produce a verdict that is fair in the eyes of their community." Id. This goal of producing a verdict that is fair in the eyes of the community could arguably be accomplished best by viewing the criminal charges pending against the Defendant as encompassing both the alleged conduct and the punishment that this particular Defendant will receive if found guilty. Furthermore, if juries were allowed to know and consider sentencing ramifications, their decisions would create a critical body of information for prosecutors, judges and legislatures to consult when making decisions, on behalf of all of us, about the appropriate nexus in the eyes of the community between specific crimes and resulting punishments.