New Hampshire House member wants judges to use specific jury nullification words or have a mistrial

For the better part of a decade New Hampshire’s legislature debated and attempted to pass a jury nullification statute. Proponents achieved victory in 2012 with HB 146 which provides “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.”

A new effort has been filed this year as HB 1452 that effectively gives the judges the exact language to use, under pain/threat of a mistrial.

519:23-b Jury Nullification.

I. The court shall give the following instruction to the jury in all criminal proceedings: “The concept of jury nullification is well established in this country. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”

II. A mistrial shall be declared in any case in which the court fails to give the jury instruction provided in paragraph I.

The instruction is a partial cut and paste from a 1984 New Hampshire Supreme Court case State v. Cote (129 NH 358).

We now consider whether the trial court’s failure to instruct the jury regarding its jury nullification prerogative constituted error. The concept of jury nullification is well established in this country. “If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.” United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970); State v. Weitzman, 121 N.H. 83, 89, 427 A.2d 3, 7 (1981). However, “the fact that a jury does have this prerogative to disregard the instructions of a court, even as to matters of law, ‘does not… establish as an imperative that jury must be informed by the Judge of that power.'” State v. Mayo, 125 N.H. 200, 203, 480 A.2d 85, 87 (1984) (quoting United States v. Dougherty, 473 F.2d 1113, 1136 (D.C. Cir. 1972)). After all, “jury nullification is neither a right of the defendant… nor a defense recognized by law.” Mayo supra.

In this case, the trial court informed the jury that it should convict, not that it must, if the State met its burden. We hold that the trial court did not abuse its discretion in refusing to give a specific instruction on the nullification prerogative.

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