New Hampshire Adopts Jury Nullification Law

J.D. Tuccille | June 29, 2012

Jury nullification, in which jurors refuse to convict defendants under laws they find objectionable or inappropriately applied, is a favored tactic of many libertarians who, rightly or wrongly perceive individual liberty as, at best, a minority taste among their neighbors. They like the idea of a tool that can be wielded on the spot to shield people from powerful control freaks without first having to win a popularity contest. But nullification is useful only if people know about. And last week, New Hampshire's governor signed a law requiring the state's judges to permit defense attorneys to inform jurors of their right to nullify the law.

On June 18, Governor John Lynch signed HB 146, which reads:

a Right of Accused. In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

Short, simple and to the point. Nullification advocate Tim Lynch, of the Cato Institute, thinks it's a step in the right direction, though not necessarily a game-changer. Says he:

This is definitely a step forward for advocates of jury trial. Allowing counsel to speak directly to the jury about this subject is something that is not allowed in all the courthouses outside of New Hampshire–so, again, this is good. I am concerned, however, that this language does not go far enough. We don’t know how much pressure trial judges will exert on defense counsel. As noted above, if the attorney’s argument is “too strenuous,” the judge may reprimand the attorney in some way or deliver his own strenuous instruction about how the jurors must ultimately accept the law as described by the court, not the defense. I’m also afraid what the jurors hear will too often depend on the particular judge and, then, what that judge wants to do in a particular case.

more...

http://reason.com/blog/2012/06/29/new-hampshire-adopts-jury-nullification

[Edited on July 1, 2012 at 11:34 PM. Reason : .]

7/1/2012 11:23:41 PM

well it's good that lynching, gay-bashing, and other abuses of minorities aren't serious problems in that state

yet

but I wonder whether this will become an invitation to homophobes in upstate new york that NH is an excellent place to play "smear the queer" even though same-sex marriage is legal there too

7/2/2012 4:22:30 AM

In many places you can get out of jury duty by saying you know about jury nullification. It's possible to let a killer go as per ^ even in those states.

7/2/2012 12:22:40 PM

^^ I had the same thought. Honor killings and vigilantism were the first two things that came to mind.

[Edited on July 3, 2012 at 5:48 PM. Reason : Added a carrot]

7/3/2012 5:47:47 PM

Why is this disallowed in the first place?

7/3/2012 11:44:15 PM

its not, its just kept on the down low.

7/3/2012 11:54:49 PM

I mean why was it disallowed to notify jurors of this right.

7/4/2012 1:08:27 AM

probably because it would be "perverting the course of justice" on the part of the defense

7/4/2012 2:25:23 AM

The problem with jury nullification is it sets up a situation where two people can commit the same crime, and one be found guilty and the other not guilty, based on who the jurors are and what they think of the law. That is not justice. There is already plenty of process for evaluating laws in all three branches of government. The jury is not an appropriate place. The jury's job is to evaluate the evidence.

7/4/2012 8:23:55 AM

So, am I reading this right? If the jury doesn't like the law, they can find the guy innocent even though evidence shows he broke it.

I am guessing this would apply with a circumstance like the dude in Texas who killed a dude because he was molesting his 4 year old daughter. yes, we know you did it, but we understand why and we're cool with it, brah....

I can definitely see where this could be a good thing, because a one-size-fits-all law often has flaws. But, on the other hand, it could also have negative consequences as well.

If they're gonna pass this, could they also make a jury allowance that says, "even though we can't prove you broke any laws, you're a disgusting and pathetic person so we're gonna convict you anyway".... a la Casey Anthony and OJ Simpson.

7/4/2012 1:06:21 PM

Quote :

"The problem with jury nullification is it sets up a situation where two people can commit the same crime, and one be found guilty and the other not guilty, based on who the jurors are and what they think of the law."

Yeah, because that doesn't already happen now.

Look, all this is going to do is make it less appealing to try to put people over a barrel for minor drug offenses and other victimless crimes. Used to be that you were better off taking a plea bargain because even though the punishment doesn't fit the crime for something like simple possession, you knew that if it saw the courtroom you were fucked. Now the prosecution has to decide if it's worth it to charge someone with a felony for something that shouldn't even be illegal to begin with (drugs, prostitution, etc.).

All this law does is allows the defense to tell the jury that they don't have to blindly follow the instructions of the prosecution and of the judge. Our criminal justice system is already wildly skewed in favor of the prosecutors. I'm in favor of just about anything that gives the accused a better shot.

7/4/2012 1:50:07 PM

If that happened, Casey Anthony or O.J. would have the right to appeal, and they could probably convince the appellate judges (appeals cases have no jury or other "triers of fact") that the original trial was mishandled, and at best they'd get a new trial and at worst they'd go free.

On the other hand, according to the Fifth Amendment (as interpreted by the courts, including the incorporation provisions of the Fourteenth Amendment), once a jury acquits a defendant of a crime, or even finds a defendant not liable for a punitive civil penalty, the defendant goes free and there is no appeal; this part of the Constitution is the basis for "jury nullification": http://www.law.cornell.edu/anncon/html/amdt5afrag2_user.html

7/4/2012 1:56:42 PM

Something such as jury nullification will always be a pendulum issue.

When the law is being abused because the absence of the jury nullification from people's knowledge, that is the time it should be rebroadcasted.

when jury nullification begins to be overused and exploited, that's the time when they should stop telling people about it again, but not eliminate it to swing back.

7/4/2012 1:57:58 PM

it was all the rage in the south when whites committed crimes against blacks.

7/4/2012 4:39:07 PM

Its one way to keep in check the power of goverment, and its ability to make laws.

It also allows for local standards to overrule general standards for the population.


It can be good, or bad, depending on how its applied, and how reprensentitive the jury is.

7/12/2012 5:50:47 PM

I can see how it'd be used positively, but it basically throws out any and all notions of a "Nation of laws, not men"

7/13/2012 12:02:48 PM

New Hampshire Jury Nullifies its First Felony Marijuana Case
PRWeb – 1 hr 1 min ago

A major victory is scored for jury nullification with the acquittal of felony marijuana charges – and it’s all thanks to a “straight-laced little old lady” juror and participant of the Free State Project

Barnstead, NH (PRWEB) September 16, 2012
Doug Darrell beat the odds and walked home from his trial as a free man on Friday, a major win for the state’s new jury nullification law. Facing felony drug cultivation charges for growing marijuana plants behind his house, the 59-year-old Rastafarian saw all of the charges against him dropped after jurors in his trial successfully convinced their peers to nullify the case on the grounds that Darrell was simply trying to obey the customs of his religion.

http://news.yahoo.com/hampshire-jury-nullifies-first-felony-marijuana-case-072023427.html

9/16/2012 1:31:10 PM

is this not how jurors think already? If X wanted to put a kid away for 5 years and fine him $500,000 for downloading some music, I'd refuse to convict him

Is it something the juror will have to justify to the judge/courtroom/jury or just disagree at voting time?

[Edited on September 16, 2012 at 2:08 PM. Reason : gunning down a fleeing burglar ]

9/16/2012 2:08:13 PM

Quote :

"Look, all this is going to do is make it less appealing to try to put people over a barrel for minor drug offenses and other victimless crimes. Used to be that you were better off taking a plea bargain because even though the punishment doesn't fit the crime for something like simple possession, you knew that if it saw the courtroom you were fucked. Now the prosecution has to decide if it's worth it to charge someone with a felony for something that shouldn't even be illegal to begin with (drugs, prostitution, etc.). All this law does is allows the defense to tell the jury that they don't have to blindly follow the instructions of the prosecution and of the judge. Our criminal justice system is already wildly skewed in favor of the prosecutors. I'm in favor of just about anything that gives the accused a better shot."

Allow me to quote myself. Looks like this is exactly what happened. The jury decided the law he broke was bullshit so they voted not guilty. Next time maybe the DA in that county will think twice about trying to fuck someone for growing pot.

9/16/2012 2:49:52 PM

Quote :

"minor drug offenses and other victimless crimes"

felonies are not minor offenses though.


If the jury did NOT know about nullification, then they would have to vote by whether or not he broke the law.

9/16/2012 3:33:21 PM

Quote :

"The problem with jury nullification is it sets up a situation where two people can commit the same crime, and one be found guilty and the other not guilty, based on who the jurors are and what they think of the law. That is not justice. There is already plenty of process for evaluating laws in all three branches of government. The jury is not an appropriate place. The jury's job is to evaluate the evidence."

Is the potential for abuse there? Sure. The potential for abuse is not only there but systemic on the part of DAs/prosecutors...the system revolves not around justice, but winning. At any rate, this doesn't open any new provision--it only serves to make juries more completely aware of their options and how the system works. In my view, arming with that knowledge should, on average, make the system work better. It also allows more for reasonable laws to be written without being hamstrung by not possibly being able to foresee every conceivable scenario.


...and yes, a perfect example is the scenario where that dude beat that other dude to death when he caught him molesting his daughter. Hey man, that was some nice murdering you did on that sick motherfucker trying to molest your 4-year old. You're free to go. Keep it up, and tell your daughter we said "hi."

9/16/2012 3:57:14 PM

Quote :

"The problem with jury nullification is it sets up a situation where two people can commit the same crime, and one be found guilty and the other not guilty, based on who the jurors are and what they think of the law. That is not justice."

This is absurd. Would it really be justice for two people to be put in prison by an unjust law than just one person? I agree, it would be best to set both people free, but we cannot save everyone, does not mean everyone must suffer.

9/16/2012 5:13:43 PM

I think it should be a required disclosure in any case with a "mandatory minimum" sentence.

9/17/2012 3:57:33 PM

anything other than a strict interpretation of the law on the books will result in unequal justice.

9/17/2012 4:02:49 PM

Quote :

"felonies are not minor offenses though."

LOL at that statement

you wouldn't consider growing a few pot plants to be minor?

9/17/2012 4:31:03 PM

If I consider growing a few pot plants a minor offense,
and you consider growing a few pot plants a minor offense,
then why is the crime considered a major offense?

A felony is the most serious type of crime a person can commit in America. It is much more serious than a misdemeanor.

9/17/2012 4:59:17 PM

What an absurd concept. The whole purpose of the justice system is to expose the truth, not appeal to the emotions of 30 idiots.

9/17/2012 5:08:10 PM

A guy got out of felony handgun possession in NYC due to jury nullification.

He had a pistol in his glove box that he legally owned, and wandered in to the city to see his GF, did not know it was such a big deal there, got stopped for traffic and disclosed it to the officer (which you are supposed to do for officer safety) and almost got sent to prison for it.

Jury said no thanks.

9/17/2012 5:30:05 PM

While nullification is a power of a jury, it is completely unnecessary to provide instructions to the jury on nullification. In fact, it probably creates greater problems for the jury trial system by instructing the jury on nullification.

Jurors are more than capable of nullifying without being instructed on it.

[Edited on September 17, 2012 at 8:18 PM. Reason : .]

9/17/2012 8:17:42 PM

^ Sure, but not everyone knows that. I don't see how promulgating this information--effectively just properly educating and instructing our juries--can be anything but a net positive.

Quote :

"I think it should be a required disclosure in any case with a "mandatory minimum" sentence."

Oh hell yes...for sure.

9/17/2012 8:49:43 PM

It would help slow down stupid shit like sending a paraplegic to prison for 5 years for having a pot plant in his house.

9/18/2012 8:57:01 AM

and it would help get rid of mandatory minimum sentencing, too.

So you're saying that there's no middle ground--we either have to send this dude to the slammer for 10 years for spitting on the sidewalk, or throw it out of court entirely?

[Edited on September 18, 2012 at 9:42 AM. Reason : pretty soon the laws would change so prosecution wouldn't have to go all-in]

9/18/2012 9:41:50 AM

This also has a huge potential for freeing up overbooked courtrooms. If every lawyer starts asking for a jury trial then sooner or later prosecutors are going to be so swamped that they'll have to let all the trivial shit go.

9/18/2012 11:43:27 AM

Quote :

"If that happened, Casey Anthony or O.J. would have the right to appeal, and they could probably convince the appellate judges (appeals cases have no jury or other "triers of fact") that the original trial was mishandled, and at best they'd get a new trial and at worst they'd go free."

Lemme drop a little knowledge on you here... The jury's verdict, itself, is not appeallable. You can't appeal based on the fact that the jury found you guilty. But you can appeal based on your claim that certain evidence was withheld or that proper procedures weren't followed or something else.

Quote :

"If they're gonna pass this, could they also make a jury allowance that says, "even though we can't prove you broke any laws, you're a disgusting and pathetic person so we're gonna convict you anyway".... a la Casey Anthony and OJ Simpson."

Actually, juries can do that right now. They could go behind closed doors and say "this guy's black, let's say he's guilty, fuck him!" and there's nothing to stop them from doing so. They can't be punished for it, and there's no appealing it. The only real defense against that is having the judge throw out the guilty verdict when it's returned. This is exactly how McDonald's has to pay the guy who shoved a broomstick up one of the company's employee's vagina, because juries have THAT kind of freedom and power.

Quote :

"it only serves to make juries more completely aware of their options and how the system works."

This. A thousand times this. Juries already have the right to nullfication. They should be informed of this right.

9/18/2012 8:56:13 PM