Jury nullification allowed in New Hampshire


Juries are almost always told that it is their job to judge the facts of the case before them and it is only up to the judge to interpret the law. But that is wrong. Juries can judge both the facts and the law and have the right to acquit someone of a crime if they feel that the law under which the person was convicted is an unjust one, even if the facts of the case clearly show that the person is guilty. Such a result is known as ‘jury nullification’.

Many prosecutors and judges have been hostile to jurors being told about this right. For example, prosecutors charged an 80-year old retired Penn State chemistry professor Julian P. Heicklen with jury tampering merely because he stood on the sidewalk outside a courthouse and handed out leaflets to people telling them about the nullification right. A prosecutor said that his actions constituted “a significant and important threat to our judicial system” and opposed his request for a jury trial because of fears that he would tell the jurors of this right. But federal judge Kimba S. Wood dismissed the indictment on free speech grounds.

Despite this deliberate hiding of information about this right, jurors have often on their own initiative taken it upon themselves to refuse to convict people for crimes that they don’t think warrant punishment, such as pot smoking, even if they clearly violated the law.

I have long been a proponent of the practice of jury nullification. (If you insert the keywords ‘jury nullification’ in the above search box you will find my previous posts on this topic.) Hence I was encouraged that the state of New Hampshire has passed a law that allows defense attorneys to inform jurors of this right. The new law states that “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.”

This should be adopted nationwide.

Update: I wrote this in the comments but will also include here a little background on jury nullification.

Juries have always had the right to acquit for any reason. Juries that are hopelessly bigoted on an issue may acquit people whom they know have committed the crime and there is nothing that can be done about it. So jury nullification does not add to this particular problem.

The benefit of jury nullification is that it enables responsible juries that think that a law is bad to acquit. Otherwise they would feel forced to convict on the facts, even if they felt the law was unjust.

It is because of jury nullification that we have some of our basic rights, such as the freedom of the press and assembly. Jury nullification also worked during the abolitionist movement when juries refused to convict people charged with harboring runaway slaves, although the law was clear. They felt that the law was unjust and let people who harbored slaves go free.

The history of jury nullification is quite fascinating and my earlier posts on this topic gives some of the details.

Comments

  1. Alverant says

    So what happens when a jury decides it’s OK to kill a person because they’re gay or a part of a racial or religious minority? Doesn’t jury nullification basically say, “You can ignore the law if you want.”

  2. baal says

    I can think of at least one high profile case where the jury nullified an otherwise clear case of a double murder.

    Evenso, I’m fully on board with jury nullification. Most jury panels err on the side of conviction (hmm, having a hard time finding back up on this point) and rather punish than let someone go free. Also, until and unless our courts stop sending absurdly disproportionate numbers of folks to prison for being black, it’s a mitigation solution for a structural problem.

  3. says

    @alverant

    No that is not jury nullification. In your example, they jury would have to conclude that the law prohibiting murder is illegal. They would have to say that it is ok for anyone to murder anyone else anytime they wanted. A better example would be a jury refusing to prosecute a black man found with an unlicensed gun during a random stop and search, because the jury believes random stop and searches are illegal.

  4. says

    Also, until and unless our courts stop sending absurdly disproportionate numbers of folks to prison for being black, it’s a mitigation solution for a structural problem.

    Is it really? Or is it mostly white defendants in which juries nullify?

  5. Mano Singham says

    Juries have always had the right to acquit for any reason. Juries that are hopelessly bigoted on an issue may acquit people whom they know have committed the crime and there is nothing that can be done about it. So jury nullification does not add to this particular problem.

    The benefit of jury nullification is that it enables responsible juries that think that a law is bad to acquit. Otherwise they would feel forced to convict on the facts, even if they felt the law was unjust.

    It is because of jury nullification that we have some of our basic rights, such as the freedom of the press and assembly. Jury nullification also worked during the abolitionist movement when juries refused to convict people charged with harboring runaway slaves, although the law was clear. They felt that the law was unjust and let people who harbored slaves go free.

    The history of jury nullification is quite fascinating and my earlier posts on this topic gives some of the details.

  6. slc1 says

    I suspect that Mr. baal is referring to a certain trial that took place in Los Angeles in 1995 involving a double murder that occurred on June 12, 1994 in the Brentwood neighborhood.

    As someone who watched all but two days of the trial and has read several books on it, I will take exception to the charge of jury nullification. The fact is that the prosecution botched the case to a fair thee well and deserved to lose, despite trying the case in the media. Mr. baal, like all too many of the commenters I have encountered, only knows about what went on from reports in the lamestream media, virtually all of which are shamefully uninformed.

    I could go on to cite chapter and verse to support my position but I don’t think that Prof. Singham would appreciate what would be an extremely lengthy discussion.

  7. F says

    That happens regardless as to whether jury nullification is part of the system or not.

  8. baal says

    I was trying to also avoid debating the specifics but agree that the prosecution was terrible (the judge wasn’t so great either). At that time in my life, I did watch an unseemly amount of the actual trial. I didn’t see comments regarding the jury suggest that the jury considered the case ‘not proven’.

  9. baal says

    The bias problem start with arrest rates vs race and continues to be biased going forward from there.

    fast google (I should start keeping my CLE materials): http://en.wikipedia.org/wiki/Race_and_crime_in_the_United_States

    http://www.inquisitr.com/201907/study-black-students-face-arrest-more-frequently-than-white-peers/

    It’s possible that jury nullification is letting whites off more than it’s letting off non-whites but it’d be really hard to see given the lower arrest rate for whites (cop level) and lower rate of decision to prosecute (prosecutor’s office level).

    Jury nullification is a juries right to check the rest of professional political apparatus. I’ve only seen evidence that they tend to block manifestly unjust prosecution. I’ve yet to see them, in any meaningful way, let people go who really needed to do jail time.

  10. says

    The trend is that bigots will apply their biases unconditionally, but reasonable people will actually try to uphold the law unless they have substantial reason not to do so.

    So in essence, legitimizing jury nullification is an attempt to level an already-slanted playing field.

  11. itzac says

    Jury nullification means you can ignore a law if you can convince 12 of your peers the law is unjust and in the face of a prosecutor doing his darndest to convince them otherwise.

  12. left0ver1under says

    It’s clear why your name is “alverant”, not observant. Mano addressed this, but you deliberately avoided it or ignorantly missed it:

    Juries have always had the right to acquit for any reason. Juries that are hopelessly bigoted on an issue may acquit people whom they know have committed the crime and there is nothing that can be done about it. So jury nullification does not add to this particular problem.

  13. left0ver1under says

    I’m not an American (never mind that I’m not a lawyer) so I don’t know the law. But I have to wonder if there is a judicial nullification.

    Can or do judges throw out jury verdicts of “guilty” when the evidence clearly does not prove the case? If that’s possible, today it’s much more likely than in decades past when blacks were tried on trumped up charges and bigoted white juries convicted them – usually because in decades past, the judge was just as bigoted.

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