EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, March 27, 2014

The Last Frontier: Alaska Bill Would Lead to Jurors Being Informed of Right of Jury Nullification

A couple of years ago, New Hampshire became, as far as I know, the first state that allows jurors to be informed of the right of jury nullification: the power of jurors to render a verdict inconsistent with the evidence (e.g., finding a defendant "not guilty" of possessing a small amount of marijuana despite the evidence proving his guilt beyond a reasonable doubt). Now, it looks like Alaska might follow suit.

According to an article from the Anchorage Daily News

A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later.  

The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.  

Here is the text of the bill:


“An Act relating to juries in criminal cases; and providing for an effective date.”


* Section 1. AS 12.45 is amended by adding a new section to read:

Sec. 12.45.017. Role of jury.

(a) Except as otherwise provided by law, the jury is the exclusive judge of the facts. The jury is bound to receive the law from the court and be governed thereby, except if a jury determines that a defendant is guilty according to the law and that the law is unjustly applied to the defendant, the jury may determine not to apply the law to the defendant and find the defendant not guilty or guilty of a lesser included offense.

(b) A defendant has the right to inform the jury of the jury’s power to judge the just application of the law and to vote on the verdict according to conscience. Failure to allow the defendant to inform the jury of the jury’s power is grounds for a mistrial.

(c) Notwithstanding any other law, the court shall allow the defendant to present to the jury, for its consideration, evidence and testimony relevant to the exercise of the jury’s power under this section.

(d) The state may rebut any evidence introduced under this section with evidence of a similar nature.

(e) This section applies only to an action tried to a jury under applicable criminal law. This section does not create a right to a jury.

(f) A potential juror may not be excused or disqualified from serving on a jury because the juror expresses a willingness to exercise a power granted to the jury under this section.

* Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to

APPLICABILITY. This Act applies to juries impaneled on or after the effective date
of this Act.

* Sec. 3. This Act takes effect immediately under AS 01.10.070(c).



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I'm new to your blog (courtesy of my weekly ABA news post!). I'm wondering how this type of law plays out in real life. How does it interact with a motion for a JNOV or a motion for a new trial on the basis that a jury's verdict is against the manifest weight of the evidence?

Posted by: Steph | Mar 28, 2014 10:59:29 AM

Or is the answer to my previous question that (so far) this rule only applies to criminal juries? If that is the case, what do we civil attorneys take from these types of laws? How do we address jurors who have been exposed to this type of law and avoid endless rounds of new trials based on jurors acting as if they do not have to render a verdict consistent with the law?

Posted by: Steph | Mar 28, 2014 11:09:17 AM

Yes, the Alaska law only applies in criminal cases. Jurors basically engage in nullification when they believe that a law is unjust. One major example is jurors finding a defendant "not guilty" of simple possession of marijuana despite overwhelming evidence of guilt.

In a civil case, I suppose that a jury could engage in quasi-nullfiication if, say, a porn shop owner sued a supplier for breach of contract and the jury thought the business was immoral. In that case, though, there could be an appeal on the ground that verdict was against the weight of the evidence.

Posted by: Colin Miller | Mar 31, 2014 7:05:12 AM

These laws tick me off because they are fundamentally irresponsible. If the legislature thinks the law is unjust they have an easy remedy--repeal the law. If the legislature has a problem with the use of prosecutor discretion in enforcing the law then they are trying to do an end run around the separation of powers. Whatever the problem might be jury nullification is not a socially responsible answer.

Posted by: Daniel | Apr 1, 2014 10:48:24 PM

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