In State v. Smith-Parker, 340 P.3d 485 (Dec. 24, 2014), the Kansas Supreme Court recently held that the “beyond a reasonable doubt” jury instruction should leave room for jury nullification. Of course, the concept of the beyond-a-reasonable-doubt standard is a federal constitutional issue, so the case presents a possible argument to make against the Tenth Circuit pattern instruction on the matter.
In reversing the defendant’s conviction, the Kansas Supreme Court agreed that a reasonable doubt instruction that told the jury that if it did not have a reasonable doubt, “you will enter a verdict of guilty” improperly stated the law. The court held:
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.
Id. at 507.
The Tenth Circuit instruction includes language that the Kansas Supreme Court rejected in Smith-Parker. In relevant part, Tenth Circuit Pattern Instruction 1.05 states:
The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty.
(Emphasis added). Thus, a jury in federal court will not be advised of this (subtle) right to jury nullification that was so important to the Kansas Supreme Court. So Smith-Parker can be used as persuasive authority that the Tenth Circuit pattern instruction is legally erroneous.
Although we often talk about “circuit splits” in federal court, this case presents a split of authority between a state court of last resort and the federal circuit court that oversees that state. And there are undoubtedly more differences of opinion on this issue. It is also the type of fundamental issue that may interest the U.S. Supreme Court.
-- Carl Folsom