v. Scott, 2021 COA 71

Law enforcement intercepted a package and arrested Charles Scott after he admitted the package (a stuffed animal) contained ~44 grams of cocaine; charged with attempted possession with intent to distribute.
Scott proceeded pro se at trial and conceded possession and intent in parts of his opening and testimony, but argued drugs should be legal and urged jurors toward acquittal based on fairness.
While testifying, Scott began describing the history/concept of jury nullification; the court cut him off, ordered him not to discuss nullification, and warned that violating the order could result in contempt (possible jail).
The court instructed the jury to follow the law and the instructions even if they disagreed with them; Scott did not object to those instructions.
Jury convicted Scott of attempted possession with intent to distribute; he appealed, claiming constitutional violations based on the court’s exclusion and contempt warning.

Issue	Plaintiff's Argument (People)	Defendant's Argument (Scott)	Held
1. Does a constitutional right exist to inform jurors of their power to nullify?	Courts may prohibit nullification advocacy to preserve rule of law and jury duties.	Scott: He had a constitutional right to tell jurors they could acquit despite law/evidence.	No. Court: No constitutional right to jury nullification; courts should not encourage it.
2. Did excluding Scott’s testimony about nullification violate his right to a jury trial?	Excluding irrelevant testimony about nullification was proper.	Scott: Preventing him from testifying that jurors may nullify infringed his jury-trial rights.	No. Court: Testimony urging nullification was irrelevant to elements/defenses and properly excluded.
3. Did the court’s contempt warning violate Scott’s rights to self-representation and to testify?	Warning was proper because the court may enforce orders and exclude irrelevant evidence.	Scott: Threatening contempt chilled his right to represent himself and to testify.	No. Court: Pro se defendants follow same rules as attorneys; court properly warned enforcement of its order.

Sparf v. United States, 156 U.S. 51 (1895) (Supreme Court: juries have power to disregard law but not a right; juries must take law from the court)
United States v. Drefke, 707 F.2d 978 (8th Cir. 1983) (federal courts have authority to refuse nullification instructions)
United States v. Sepulveda, 15 F.3d 1161 (1st Cir. 1993) (jurors may nullify but courts and counsel should not encourage it)
United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) (nullification is a power, not a right; judges should prevent it when possible)
United States v. Davis, 724 F.3d 949 (7th Cir. 2013) (nullification is not a right; instructions sanctioning it threaten the rule of law)
United States v. Kleinman, 880 F.3d 1020 (9th Cir. 2017) (courts must forestall/nullification because juries must apply law from the court)
United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983) (trial court properly refused a nullification instruction)
People v. Wilson, 972 P.2d 701 (Colo. App. 1998) (trial courts may in their discretion preclude counsel from arguing jury nullification)
Alvarez v. People, 653 P.2d 1127 (Colo. 1982) (jurors are required to follow the law as given in the court’s instructions)