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Colorado court discusses jury nullification...

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  • Legalbear
    [49] During rebuttal, the prosecutor made the following statement: [50] What s not there in the statement of the defense is that we haven t proven
    Message 1 of 1 , Sep 28, 2010
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      [49]       During rebuttal, the prosecutor made the following statement:


      [50]       What's not there in the statement of the defense is that we haven't proven the elements of the crime. It is simply a statement that, well, somehow it's not fair to then convict him of the offense even though we have proven the elements to you. In fact that's a technique called jury nullification where the evidence has, in fact, been presented to the jury to support a conviction for the charge, but then even though the evidence is there, you ask the jury to basically disregard the evidence and disregard the law and return a finding of not guilty in spite of it. And that, in fact, would not be correct because you agreed that you would follow the law, follow the instructions. (emphasis added)


      [51]       Defendant objected to this comment, arguing it erroneously suggested to the jurors that they did not have the power to nullify what would otherwise be the verdict when, in reality, they did have such power. The trial court overruled defendant's objection, concluding the prosecutor's statement did nothing more than remind the jurors of their duty to follow the instructions based on the evidence placed before them.


      [52]       Colorado appellate decisions have said little about the issue of jury nullification. See People v. Stephens, 837 P.2d 231 (Colo. App. l992)(not addressing issue of jury nullification raised by the People because it was moot); People v. Brandyberry, 812 P.2d 674, 677 (Colo. App. l990) ("[C]ommon law necessity defense is not available as an instrument for juror nullification of unpopular laws . . . .").


      [53]       Other jurisdictions have specifically recognized that a jury does have a de facto power of nullification, i.e., the power to acquit the defendant regardless of the strength of the evidence against him or her. See Andrews v. State, 222 Ga. App. 129, 473 S.E.2d 247 (1996); Leipold, Rethinking Jury Nullification, 82 Va. L. Rev. 253 (l996).


      [54]       However, many decisions have emphasized that the jury also has a duty to follow the court's instructions. See People v. Smith, 296 Ill. App. 3d 435, 694 N.E.2d 681 (1998) (defendant has no right to have the jury defy the law or ignore the undisputed evidence). See also United States v. Thomas, 116 F.3d 606, 616 (2d Cir. l997) ("[N]o juror has a right to engage in nullification - and, on the contrary, it is a violation of a juror's sworn duty to follow the law as instructed by the court . . . ."). But see State v. Bonacorsi, 139 N.H. 28, 648 A.2d 469 (l994) (recognizing jury nullification as the undisputed power of the jury to acquit, even if its verdict is contrary to law as given by the Judge and contrary to the evidence); and NHJI-Crim. No. §3.17 (1985) ("Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.").


      [55]       Because of this tension between the jury's de facto power of nullification and the jurors' duty to follow the court's instructions, most courts have held that trial courts should not instruct the jury that it may nullify a verdict of guilt. See People v. Moore, 171 Ill. 2d 74, 662 N.E.2d 1215 (l996). They have further held that the trial court can, in its discretion, preclude counsel from arguing jury nullification. See Andrews v. State, supra; People v. Moore, supra; State v. Bjerkaas, 163 Wis. 2d 949, 472 N.W.2d 615 (1991). See also People v. Smith, supra (trial court did not abuse its discretion by giving supplemental instruction in response to jurors' written question, which arguably negated power of nullification or lenity).


      [56]       In closing argument, counsel is entitled to argue all reasonable inferences from facts in evidence. People v. Constant, 645 P.2d 843 (Colo. 1982), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982). Although a prosecutor may not make statements during closing argument which could mislead the jury, People v. Marin, 686 P.2d 1351 (Colo. App. 1983), a prosecutor is afforded considerable latitude in replying to an argument made by opposing counsel. People v. Vialpando, 804 P.2d 219 (Colo. App. 1990).


      [57]       Additionally, the determination whether a prosecutor's statements constitute inappropriate prosecutorial argument is generally a matter within the trial court's discretion. People v. Moody, 676 P.2d 691 (Colo. 1984). The trial court must consider those comments in the context of the argument as a whole and in light of the evidence before the jury. People v. Constant, supra. Reversal of the conviction is not required if the argument, in all probability, did not influence the jury's result or affect the fairness of the proceeding.


      [58]       Here, defendant's counsel initially raised a defense in the nature of jury nullification during closing argument, apparently without objection. During the rebuttal, the prosecutor made only a brief and passing reference to nullification.


      [59]       Accordingly, although the issue of nullification is best avoided, we conclude that the prosecutor's statements here do not require reversal. When viewed in the context of the argument as a whole, they merely reminded the jurors of their duty to follow the court's instructions and to apply the facts and evidence to the instructions in determining guilt or innocence. We further conclude that the trial court properly refused to submit a supplemental instruction to the jury regarding jury nullification.


      [60]       Judgment affirmed.


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