Michigan Criminal Defense Lawyer Blog

What Does Michigan Law Say About Jury Nullification?

Published on: December 15, 2021 | by Patrick Barone

The black letter law in Michigan suggests that juries have the power but not the right to exercise jury nullification.[i] Nevertheless, the practice of law is all shades of gray, and the arguments made by lawyers are often in the penumbras of black letter law.

For example, some Michigan cases have indicated that nullification may be argued where nullification is a recognized legal defense. Because a trial judge may exclude a defense attorney from presenting to the jury evidence supporting a defense that has not been recognized by the legislature[ii], the judge can preclude a lawyer from arguing for nullification.

This does not mean that the power of nullification can be taken away from the jury, and a judge cannot explicitly tell a jury that they are precluded from exercising jury nullification. In one Michigan case where a judge told the jury that jury nullification was inconsistent with the recognized power of the jury, the verdict of guilty was reversed.[iii] In support of their reversal, the court indicate that:

Why Aren’t Juries Informed of Their Right to Nullification?

Published on: December 15, 2021 | by Patrick Barone

In the United States juries are not informed by the judge of their right to nullification because the case law addressing jury nullification remains oblique. It is therefore commonly said that in the United States juries are empaneled to resolve issues of fact, but when it comes to nullification, juries have the right but not the power to judge the law. Consequently, a judge will never directly instruct a jury than they judge the law. The reverse is also true; a judge will not instruct a jury that they may not judge the law. In a criminal case, the litigants are also precluded from advising the jury of their right to nullification.

When looking at the history of nullification in the Untied States, it is clear that while the breadth of jury nullification in our criminal justice system has ebbed and flowed it has never entirely gone away. Today a jury sitting on a criminal case may engage in nullification. Since nullification remains a part of our criminal justice system, the question that obtains is this; how much influence can, or should, the judiciary have in limiting or otherwise influencing the jury’s right to nullify? Said differently, as “keepers of the law,” what role do judges have in explaining or refuting nullification?

In looking at the question of whether or not jurors should be informed of their right to nullify, Irwin A. Horowitz has this to say:

What is the History of Jury Nullification?

Published on: December 15, 2021 | by Patrick Barone

In the United States, we obtained much of our initial original jurisprudence from England. This “precedence” is called the common law. Because the English common law had such an impact on the development of our law it makes perfect sense that the English common law tradition of jury nullification directly influenced early American criminal trials. In the colonies, both the right to a jury trial, and the jury’s associated nullification powers, were viewed as vital to ensuring liberty.

The Founders, all of whom had the personal experience of living under an oppressive and capricious government, also believed in the importance of the right to nullification, particularly when viewed through the lens of liberty and freedom from tyranny. As one historian observed, “The writings of Jefferson, John Adams, Alexander Hamilton, and other founders–Federalists and Anti-federalists alike–all support the belief in a jury responsible for deciding both fact and law.” Similarly, jury trials and nullification were respected throughout the early days of U.S. history.[i]

Nevertheless, as the common law developed the question remained about if and how nullification would be incorporated into our system of governance. While the right to a jury trial is mentioned repeatedly throughout our founding documents, the word “nullification” is absent from all of them. Consequently, the United States Supreme Court had to grapple with this issue, and attempt to resolve it. However, their precedent regarding nullification has never entirely resolved the role of the jury in a criminal case or even the propriety of nullification.

Why Would a Jury Choose to Nullify the Law?

Published on: December 2, 2021 | by Patrick Barone

As previously explained, jury nullification occurs when a jury fails to follow the instructions of the court and instead returns a verdict contrary to those instructions. UN Appeals judge and constitutional law expert Geoffrey Robertson suggests that an independent jury can disregard the strict letter of the law set forth in these instructions and return their verdict of acquittal due to feelings of “sympathy or humanity” or simply based on common sense.

Jury instructions themselves can be part of the problem. Jury instructions are summations of the law and reflect the litigants’ best efforts to distill often complex laws in chunks that can be understood and applied by the jurors when evaluating the facts presented to them at trial.

However, when it comes to criminal cases and the tacit but often necessary application of constitutional law principals, these “chunked summations” of the law are rife with potential pitfalls. According to Duke University School of Law Professor Brandon Garrett, the use of constitutional rights in jury instructions—and in evidentiary practice more generally—is a subject that deserves far more attention in the bar and in scholarship.[i]

Jury Nullification is Consistent with the Concept of Limited Government

Published on: December 1, 2021 | by Patrick Barone

The Sixth Amendment to the United States Constitution provides that citizens accused of crimes have an absolute right to a speedy, public, trial by an impartial jury. But this right to trial by an independant jury trial was not invented in the United States. In an article in the British Library, Author Geoffrey Robertson remarked that the modern independent jury, and their right to jury nullification, arises out of the rights and limitations originally set forth in the Magna Carta.

Notice the difference in what Robertson indicates and what the U.S. Constitution indicates. Robertson refers to an independent jury whereas our Constitution refers in Article III, Sec. 2, simply to trial by jury, and the Sixth Amendment to an impartial jury. Is this a distinction without a difference? Does the Sixth Amendment, in using the word impartial also connote independence?

In the modern age, this concept of impartiality is most often thought of in the context of the jury’s fact-finding role, in which jurors must be “free of prejudice.” But from a historical perspective, might the word “impartial” as used in the Sixth Amendment also reference impartiality to, and independence from, the law itself?

What to Expect as your Case Moves Through the Michigan Juvenile Criminal Court

Published on: November 25, 2021 | by Michael Boyle

The criminal procedure applicable to the Michigan Juvenile Criminal Courts is similar to but much different from the procedures utilized and applicable to the Michigan Adult Criminal Courts. The purpose of this article is to give a brief yet concise summary of these differences. If you are charged as an adult or juvenile offender, or if you are the parent of someone so charged, then your lawyer will be able to give a more detailed explanation of what to expect while your case is pending.

How Does a Juvenile Case Begin?

In the adult court, the case begins when a criminal complaint is filed. Most often, complains are accompanied by warrants, and require that you appear for an arraignment. In the juvenile court, the complaint is called a petition. They both list what the allegations. This is just one of the many differences in the juvenile justice system.

Understanding and Defending a SCRAM Violation in Michigan

Published on: November 20, 2021 | by Michael Boyle

Note: what follows is a summary recapitulation of Michigan DUI Lawyer Mike Boyle’s CDAM presentation. Lawyers wishing to know more about how to defend an alleged SCRAM violation may wish to review these materials for more in-depth information:

Secure Continuous Remote Alcohol Monitoring, or SCRAM, is an alcohol monitoring tether that is used throughout the State of Michigan by courts, judges, and probation officers to monitor abstinence of defendants and probationers from alcohol consumption. There are mixed views regarding the use of SCRAM as a tool to assist in sobriety and for abstinence, but more concerning is the reliability and usefulness of this device.

What is a SCRAM?

Would Kyle Rittenhouse Have Been Acquitted in Michigan?

Published on: November 19, 2021 | by Patrick Barone

The only way to know the answer to this question would be to actually try the case in front of a Michigan Jury. One thing for certain however is that Kyle Rittenhouse would have been allowed to raise a claim of self defense had the case happened here in Michigan. Presumably, if it was the exact same testimony and evidence, same jurors, judge and prosecutor, then yes, Kyle Rittenhouse would have been acquitted here in Michigan too.

This is all speculation, but a brand-new case in Michigan may shed light on the question. The name of the case is People of the State of Michigan v Leandrew Martin. The case arose out of the Jackson County Circuit Court, and was decided on November 18, 2021. In this case, the Michigan Court of Appeals set aside multiple felony convictions because the defendant’s lawyer had failed to request a jury instruction for self-defense despite the fact that a claim of self-defense had been established at trial. The court held that this mistake was so bad that the verdict had to be set aside finding that the defendant’s attorney was “ineffective.”

The case arose out a bar fight and during the fight the defendant shot ten times into a crowd, leaving one person with a serious injury caused by ricocheted bullet that struck the foot. The defendant was a felon and was not in lawful possession of the pistol. Because of this the defendant’s lawyer thought he was not entitled to raise self-defense. It’s not clear why the defendant’s lawyer believed this to be true because Michigan’s laws of self-defense do not require that a defendant be in lawful possession of the weapon in order to raise a claim of self defense.

How to Defend an Alleged SCRAM Violation According to Boyle

Published on: November 16, 2021 | by Barone Defense Firm

Barone Defense Firm Partner and Senior Trial Attorney Michael J. Boyle recently was one of the guest presenters at the Criminal Defense Attorneys of Michigan (CDAM) Fall Conference at Boyne Mountain. The annual seminar was attended by hundreds of criminal defense attorneys from throughout the State of Michigan. CDAM is one of the largest and well-respected membership groups in the State and is dedicated to the improvement of criminal advocacy across all practice areas in the criminal justice system.

Boyle accepted the invitation to speak and was the only attorney that presented on two topics. He presented on Secure Continuous Remote Alcohol Monitoring, known as SCRAM, and he also did a presentation on Self-Defense and understanding Michigan’s Stand Your Ground and the Castle Doctrines.

Boyle has enjoyed the opportunity over the last several years to be part of the process of educating and teaching other lawyers the complex understanding and best practice techniques in representing clients on multiple disciplines. He has presented on numerous occasions for the Michigan Association of OWI Attorneys (MIAOWIA), the State Bar of Michigan Marijuana Law Section, CDAM, and the Ohio Association of Criminal Defense Lawyers (OACDL).

Should Michigan Drunk Drivers Causing Death Be Forced to Pay Child Support?

Published on: November 15, 2021 | by Patrick Barone

As Michigan’s drunk driving laws have continued to evolve, the range and type of punishment upon conviction has continued to increase over time. In the 70s when DUI laws were just beginning to be taken more seriously by drivers, police, prosecutors, and judges alike, punishment was usually limited to a fine and points on the offender’s driving record.

In the 80s, the DUI laws of the 70s were being amended, and these amendments almost always included some new or increased penalty. Jail time began to be considered for repeat offenders and in those cases involving serious injury or death. Fines and costs began to increase, and a variety of driver license sanctions such as restricted driving and a suspension of driving privileges.

The 1990s ushered in a whole new slew of increasingly draconian DUI laws, and the current incarnation of Michigan’s DUI laws dates back to 1999. It was at this time that the definition of DUI changed in Michigan as well. Previously, an offender could be charged with OUIL, UBAL or both. Charges were frequently reduced to reckless driving or “OWI,” which prior to 1999 meant “operating while visibly impaired.”

Michigan Criminal Defense Law Blog

How Does a Juvenile Case Begin?