Jury Tampering and the First Amendment

Mike Appleton (guest blogger)

A Florida circuit judge has issued  an administrative order virtually certain to result in a court battle pitting the right of free speech against the duty of courts to protect the integrity of jury deliberations.  The order prohibits “the dissemination of all leaflets and other materials to summoned jurors, as well as approaching a summoned juror for the purpose of displaying a sign to, or engaging in oral protest, education or counseling with information tending to influence summoned jurors on any matter, question, cause, or proceeding which may be pending, or which may be brought, before him or her as such juror… .”

The order was prompted by concerns over the distribution of pamphlets by members of the Fully Informed Jury Association (“FJIA”), a Montana based non-profit organization that promotes the concept of jury nullification as a check on government abuse in criminal prosecutions. The organization’s literature encourages prospective jurors to determine guilt or innocence in accordance with their consciences, regardless of the court’s instructions on the law.

Several months prior to entry of the order, another judge in the same circuit felt compelled to disqualify a jury panel whose members were found to be in possession of  FJIA  educational pamphlets, concluding that  the distribution of the materials to prospective jurors was a form of jury tampering under Florida law.  Florida statutes make it a third degree felony to influence a juror with the intent to obstruct justice.

The FJIA contends that their information is generic and is intended solely to educate jurors on the historical right to acquit a criminal defendant, even in the face of evidence of guilt beyond a reasonable doubt, if they conclude that the law is unjust or is being unjustly applied. Jury instructions do not include an instruction on nullification and jurors take an oath to render a verdict in accordance with the law and the evidence submitted to them.

The order will undoubtedly be attacked as an unconstitutional restriction on free speech, at least in the absence of evidence that the dissemination of the information created a clear and present danger to the administration of justice. It is highly doubtful that the order as drafted can withstand a constitutional challenge.

44 thoughts on “Jury Tampering and the First Amendment”

  1. eniobob,
    Great Cheech and Chong video. That convertible that he was driving was one nice ride. It reminded me of the high school days.

  2. Eniobob just to follow up.

    The CSI team was formed in 2007, following chaotic media coverage of the record U.S. warmth in 2006 (see CSI: NOAA Climate Scene Investigators). Here they have been called to the scene again, but now to explain cold, snowy conditions, and to reconcile those with a warming planet. After a series of record-setting snowstorms hit the mid-Atlantic region this winter, some people asked NOAA if humans could somehow be to blame. Specifically, they wanted to know if human-induced global warming could have caused the snowstorms due to the fact that a warmer atmosphere holds more water vapor.

    The CSI Team’s analysis indicates that’s not likely. They found no evidence — no human “fingerprints” — to implicate our involvement in the snowstorms. If global warming was the culprit, the team would have expected to find a gradual increase in heavy snowstorms in the mid-Atlantic region as temperatures rose during the past century. But historical analysis revealed no such increase in snowfall. Nor did the CSI team find any indication of an upward trend in winter precipitation along the eastern seaboard.


  3. From the second, corrected, transcript of State of Wisconsin : Circuit Court Branch 2 : Door County / City of Sturgeon Bay vs. J. Brian Harris, Court Trial Case No. 07-TR-3466

    (Page 28, Line 24 through Page 29, Line 9)

    (J. Brian Harris takes the stand).

    THE CLERK: Please raise your right

    hand. Do you solemnly swear that the testimony

    you are about to give in this matter shall be

    the truth, the whole truth, and nothing but the

    truth, so help you God?

    THE WITNESS: I will tell the truth to the best of my practical

    ability, to the extent the court permits.

    THE COURT: That’s sufficient for me.

    THE CLERK: You may be seated.

    end of transcript excerpt…

    1. I did not “raise” my hand.

    2. I was neither sworn nor affirmed.

    3. Were I to have been sworn or affirmed, the affirmation being of the form, as I now recall, “Do you affirm that you will tell the truth, the whole truth, and nothing but the truth, under penalty of perjury?”, I would have committed perjury in so being sworn or affirmed. I was allowed to testify without either being sworn or affirmed… Judge Diltz made new law that day…

    3a. As truth is objective and not subjective to me, and as I know and understand that delusions are untruths a person does not recognize, it is impossible for me to state as absolute fact that I can tell the truth because I may unwittingly tell an unrecognized delusion, delusionally believing it to be true when it is not true. Exit, “that you will tell the truth.”

    3b. As the whole truth about anything has not yet been created, no one can tell the whole truth about anything. Had I agreed to this, I would have committed perjury for the second time in a row.

    3c. My grasp of formal logic informs me that it being impossible for me to tell the truth with absolute certainty and utterly impossible for me to tell the whole truth, were I to agree to tell nothing but the truth, that would have been the third time in a row of my committing perjury.

    I had informed THE COURT prior to the trial of the fact that I was in contempt of court. I had told the City Attorney that, were I to enter a plea, I would plead contempt of court. He seemed to not like that, wonder why?

    At trial no witness to the collision of the other driver’s automobile with the trailer I was pulling testified that I violated the red light.

    I was convicted of violating a red light without a single witness to the collision testifying to my having violated the red light, and I stated that I had not violated it.

    No matter, guilty as charged with not one single witness.


    One attorney with whom I spoke at a church meeting far away in Wisconsin remarked to me that he would never take a case in Door County because the Door County Circuit Court was the most corrupt in the State of Wisconsin.


    Convicted without even one witness testifying to the red light violation.

    Magnificently Beautiful!

    The Innocence Project does not bother to deal with minor traffic court corruption.

    So, I do my job as best I can do it.

  4. Bdaman:

    “. I would of picked it up myself but I hate feeling like I might be profiled by the local authorities even though I speak perfectly good English.”

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