Some legal issues arise commonly enough that courts get a bit tired of them. When this occurs, it is not uncommon for a legal opinion to include a little sarcasm. This post will address one such issue, as identified by Division Three of the Court of Appeals of Washington. As the appellate court opened its decision, “We thought that this issued was resolved.”

The defendant was convicted of possession with intent to deliver methamphetamine, possession of marijuana, and use of drug paraphernalia. He appealed one of the trial court's jury instructions, which advised the jurors on their “duty to return a verdict of guilty.” This is the issue that the appellate court believed long since closed.

The instruction, when read in full, seems less like an unequivocal order than the above would imply. It states that “If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.” It only orders the jury to find a guilty verdict if the jurors find that the defendant was guilty of each of the elements of the crime they committed.

This issue has been well litigated. Each division of the Court of Appeals has heard and upheld it multiple times. Our Supreme Court has never felt the need to revisit the issue, and has had several opportunities to do so.

The real issue that defendants have with the instruction is that it lessens the likelihood of what is known as jury nullification. When this occurs, the jury, although believing the defendant committed the crime, decides to acquit them anyway. This can be because they do not agree with the law itself, or the application of it in the specific case.

Here, the Court of Appeals reasoned that while jury nullification is a jury practice that does occur, courts are under no duty to provide instructions that tell the jury that doing so is within their power. In fact, this instruction goes the other way, essentially instructing the jury that they should not nullify the law. Previous caselaw had already established that the Washington constitution did not require the possibility of jury nullification nor prevent a duty-to-convict instruction. In essence, as Division Three noted, the issue has been long-settled.

Despite a defendant's inability to get an instruction on jury-nullification or avoid an instruction on the duty to convict, criminal defendants do have options when facing trial. One such option is hiring an experienced defense attorney to protect their rights. Attorney Steve Karimi has decades of experience both prosecuting and defending criminal defendants. If you face criminal charges in the Greater Seattle area, contact him today for a free consultation.