Scintilla of evidence may sometimes achieve jury nullification acquittals, but not defense-friend Virginia jury instructions, says Fairfax criminal lawyer

Scintilla of evidence sometimes is the best a criminal defense lawyer can argue, often simply seeking jury nullification. However, as a Fairfax criminal lawyer, I know that such a small piece of evidence is too small to require a Virginia trial judge to read a defense-friendly instruction to the jury. Rebecca Jones Richard learned that through a roller coaster of her trial judge’s rejecting her proposed jury instruction to counter her methamphetamine drug conspiracy prosecution, the Virginia Court of Appeals’ reversal of that refusal, and the commonwealth Supreme Court’s reinstating the trial court’s ruling. Virginia v. Richard, ___ Va. ___ (Dec. 29, 2021).

Can a skilled Virginia criminal defense lawyer achieve an acquittal with but a scintilla of evidence to argue?

Rebecca Richard’s lawyer had an uphill battle to climb to achieve an acquittal for her against her drug conspiracy prosecution, where she blabbed to the police that she had arranged to sell drugs in order to obtain a car. Richard. Under those circumstances, Richard had little to argue to the jury other than the single-buyer / seller relationship exception to the Virginia drug conspiracy law. This single-buyer/seller exception springs from Wharton’s rule, whereby the “‘”classic Wharton’s Rule
offenses—crimes such as adultery, bigamy, duelling—”are characterized by the general congruence of the agreement and the completed substantive offense” and, therefore, indictment for conspiracy to commit such crimes is deemed to be unsound.'” Richard (citations omitted). Unfortunately for Richard, her plan to buy a car for drugs apparently involved too much drugs to be expected to be consumed solely by the car seller than to be trafficked further by the seller of the automobile, thus removing the single-buyer / seller bar to a conspiracy prosecution. Finding not more than a scintilla of evidence to support the single-buyer/seller instruction, Richard okays the trial judge’s refusal to give the jury such an instruction. Richard. 

Is jury nullification always a laudable occurrence?

As a Virginia criminal defense lawyer and civil libertarian, I rarely am upset at a jury nor judge acquittal of the accused even when the acquittal is not supported by more than a scintilla of evidence, and I often applaud such a result. When a jury acquits a defendant for such a s0-called victimless crime as drug trafficking, I feel no discomfort. Back in the day of all white racist jurors acquitting murder defendants not because of reasonable doubt of guilt but because of the victim’s African American race, that was a disturbing type of jury nullification.

If Virginia jurors are permitted to nullify the criminal law by acquitting with no basis in the evidence, why are judges not required to instruct them about the nullification option?

Criminal jurors have the acquittal power to nullify the applicable law (and acquittals are irreversible) even when not more than a scintilla of evidence supports such a result, but arguably not the right to do so.  “It is true that nullification has a long history in the Anglo-American legal system, … and that the federal courts have long noted the de facto power of a jury to render general verdicts ‘in the teeth of both law and facts,’ … However, at least since the Supreme Court’s decision in Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, ‘it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them’), courts have consistently recognized that jurors have no right to nullify.” U.S. v. Thomas, 116 F.3d 606, 615 (2nd Cir., 1997). Thus we have the result in the foregoing Virginia Richard drug conspiracy conviction.

Fairfax criminal lawyer Jonathan Katz pursues your best defense no matter the odds, against Virginia DUI,  drug, felony and misdemeanor prosecutions. Learn the positive defensive difference that Jon Katz can make for your case by scheduling a free in-person confidential consultation about your court-pending case, at 703-383-1100.