After All, It Is Just Kansas

Jury nullification is interesting to a lot of law students and to a very small niche of the Bar. A few states instruct juries on their right to nullification, but the prevailing rule is say nothing.

So, perhaps this is just about Kansas, but it is interesting.  Recently, Professor Eugene Volokh wrote for the Washington Post:

From the Kansas Supreme Court’s decision in State v. Smith-Parker (Kan. Dec. 24, 2014):

The [jury] instruction read: “If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.” (Emphasis added.) According to Smith-Parker, the instruction should have been identical to the general reasonable doubt instruction that was also given. That instruction said: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) …

This court addressed a similar instruction challenge in State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980). The questioned Lovelace instruction told jurors that they “must” find defendant guilty if they did had no reasonable doubt on the elements of the crime. This court rejected Lovelace’s argument that “must” commanded the jury to find the defendant guilty and noted that “should” and “must” could be used interchangeably in criminal instructions. Smith-Parker acknowledges this precedent but argues that it was wrongly decided. We agree with him and overrule the Lovelace holding.

Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification. Both the wording of the instruction at issue in Lovelace — “must” — and the wording at issue here — “will” — fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.

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