The years-long legislative efforts to compel New Hampshire judges to issue specific jury nullification instructions continues now with the threat of impeachment added should the trial judges obey a recent state supreme court opinion on the subject.
First, some background.
For the better part of a decade New Hampshire’s legislature debated and attempted to pass a jury nullification statute. Proponents achieved a victory of sorts in 2012 with HB 146 which provides
519:23-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.
By 2014, members of the New Hampshire House were angry that judges were not providing an additional jury instruction on the issue of jury nullification. Enter HB 1452 of 2014 which quoted, effectively verbatim, a 1984 New Hampshire Supreme Court case State v. Cote (129 NH 358).
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.”
Failure to provide the instruction under HB 1452 would have resulted in a mistrial. That particular bill was rejected both in committee and by the full House 193-84.
In October 2014, the New Hampshire Supreme Court ruled in State v. Paul that the 2012 law was not a “jury nullification law” and “construed RSA 519:23-a as merely codifying existing law, rather than conferring on the jury a right to judge or nullify the law…” Trial judges were permitted to use a “Wentworth instruction” derived from State v. Wentworth, 118 N.H. 833 (1978)
If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.
Now, proponents have returned with a new bill (HB 246) that drops the Cote language and specifically addresses the Wentworth instruction by making it, in effect, an impeachable offense. Specifically, it finds a judge who uses only a Wentworth instruction commits “an act of maladministration” which is grounds for impeachment under Art. 38 of the New Hampshire Constitution.
519:23-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. Denial of this right or limitation of this right to the Wentworth instruction, as described in State v. Wentworth, 118 N.H. 833 (1978), is an act of maladministration.