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. Here’s the funny thing. Look at the yearly totals for average snowfall, N.Y City.

    So much for that. The climate is on it’s way to it’s yearly change and will once again be in the heat of the moment and under the threat of Hurricane’s. Can’t wait. Water temperatures for NE Florida pushed just above 60 yesterday. Needs another 5 degrees and I’m all in. In the mean time I’m getting wet another way, off my back. Got 40 bails of pine straw headin my way. 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.

  2. Bdaman:
    “How many years have you lived in Jersey.”

    Sometime it feels as if I went to kindergaten with Methuselah LOL!!,Those towns you mention are south of my locale but I’m familiar with both.

    “When is the last time you seen it snow like it has the last two years?”

    Been quite awhile going back to my childhod would be the last time, less Methuselah:=)

  3. How many years have you lived in Jersey. I have two friends one from Piscataway and one from Cherry Hill. When is the last time you seen it snow like it has the last two years?

    If it’s Global Warming now, was it Global Warming Then?

  4. eniobob it is Chamber of the Commerce type weather here and it’s forecast to hold for the SE U.S. for at least a week. Lots of yard work to catch up on after a second brutal winter for us Floridians. Unfortunately for you Northerner’s it’s not over til the fat lady sings.

    0000 UTC MODELS

    Click GFS ALL and run the mouse over the time period. What do you see in the top right hand panel at the 180 mark. Hold onto your hat for a few more weeks.


  5. Bdaman:

    “Nice !!!!!! Hope your enjoying this GREAT Florida Sunshine we are having. Looks to hold for a while, get it while you can.”
    Well if sunshine is white and falling from the sky and has to be shoveled and plowed,this morning not so much here in Jeresy:=)

  6. Buddha Is Laughing 1, February 20, 2011 at 3:14 pm

    In deed,in deed. As someone who has lobbied in the past to have you as a guest poster I seconded Buddha Is Laughing and look forward to your future post.

    Nice !!!!!! Hope your enjoying this GREAT Florida Sunshine we are having. Looks to hold for a while, get it while you can.

    Happy Presidents Day everybody.

  7. Way to go “Res ipsa loquitor” with Mespo, Elaine, NAL, Rafflaw and now Mike A. there are FIVE fabulous guests featured on the front page. Fantastic! Looking forward to #6, #7, #8, #9,….maybe Buddha, eniobob, Gyges, Lottakatz, Mike S, Vince T, Bob Esq, Blouise, Swarthmore mom, Slartibartfast, rcampbell, ……

  8. BTW, the synergy here with preserving FRCP 23(b) and the rules on jury tampering seems to substantially lower the volume on that free speech right.

  9. Mike,

    While I’m no First Amendment maven, a quick dirty wiki-analysis of the issue seems to suggest that it’s not a slam dunk in favor of free speech.

    We know (from law school) that the court retains the power to refuse instructions to the jury on nullification.

    But check this out from Wikipedia: “In 1997, the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).”

    Wiki cites it as: U.S. v. Thomas No. 95-1337 (2nd Cir. 5-20-97)


    Seems to me that since that case, the issue might be narrowed down to free speech v. FRCP 23(b) and the Court’s interest in keeping the jury in line.

    I guess the focus of the analysis would be whether distribution of the literature to the jury members necessitates an inference that the juror has been ‘poisoned’ with an intent to nullify.

    I would normally not cite Wikipedia for anything, but like I said this is a quick dirty preliminary analysis based on a case that I’d never heard of until now.

  10. Mike A: “There is no doubt that jury nullification could be used as a weapon to thwart the law.”

    (Congratulations on becoming a guest blogger!)

    I would re-work your statement a bit to say “There is no doubt that law could be used as a weapon to thwart the justice.” The law can’t be an end in itself. If it’s not a framework for justice then it’s just self parody. Jury nullification could be the fresh air needed to revive justice being strangled by an unjust law.

    I’ve been on four juries and I can pretty well assure that a jury that thinks someone is getting a raw deal will find all kind of reasons to deliver a not guilty verdict. An explicit knowledge of jury nullification would just get it out into the open.

  11. Mike Appleton:
    This layman can only look and learn from your post and say thanks, and good dive into the pool.

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