New Hampshire legislators try again for mandatory jury nullification instructions; judges would have to tell jurors they have “right to veto bad laws”

New Hampshire’s legislature has spent the better part of a two decades debating laws related jury nullification and juror instructions for use by the courts. The 2016 session looks to continue this trend with two pieces of legislation already introduced.

First, some background.

For over 20 years the New Hampshire legislature has debated jury nullification language (see table at the end of this post). The forms varied, but generally broke down into two groups:

  1. Specific and exact language to be used by judges in directing jurors on nullification
  2. General direction that judges were to inform jurors of nullification

These efforts culminated in HB 146 of 2012. While originally a much broader nullification statute

In all court proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. The court is mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

The bill that became law was amended to remove references to nullification.

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.

Legislators became infuriated after state courts failed to give nullification instructions based on the 2012 law. By 2014 a new bill was introduced (HB 1452) that went back to the desire for specific nullification language. That bill quoted, effectively verbatim, a 1984 New Hampshire Supreme Court case State v. Cote (129 NH 358).

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.

It was overwhelmingly rejected in the House 193-84. After it was rejected the state supreme court decided in State v. Paul (167 N.H. 39) that the 2012 bill was in fact not a nullification law and that a “Wentworth instruction” (State v. Wentworth, 118 N.H. 833 (1978)) was enough

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.

That 2014 decision by the state’s supreme court resulted in various threats of impeachment for any judge who issued a Wentworth instruction (discussed here) and a brand new round of legislation (HB 470 of 2015) that was again rejected

The court shall allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

Moving into 2016 two bills would again move towards specific-language instructions.

HB 1270 provides a paragraph instruction almost identical to one approved by the House in 2003 (HB 122) that would add one sentence to the Wentworth instruction

However, if you find, that the state has proved all of the elements of the offense charged beyond a reasonable doubt, but you find that based upon the facts of this case a guilty verdict will yield an unjust result, you may find the defendant not guilty.

The other bill is much more expansive. HB 1333 spans 9 different sections of law and includes references to Thomas Jefferson and the 1850 Fugitive Slave Law. Moreover, judges would be required to tell jurors they have a right to “veto bad laws” and “a jury has more authority than Congress, the President, or even the Supreme Court.

Both bills have been prefiled for the 2016 and directed to the House Judiciary Committee.

Year Bill Type of Bill Language Status
1993 HB 650 Specific language As jurors, your first responsibility is to decide whether the defendant has broken the law. If you decide that he has, but that you cannot in good conscience support a guilty verdict, you are not required to do so. To reach a verdict which you believe is just, each of you has the right to consider the motives of the defendant, and the extent to which the defendant’s actions have actually caused harm or otherwise violated your sense of right and wrong. If you believe justice requires it, you may also judge both the merits of the law under which he has been charged and the wisdom of applying that law to the defendant. Accordingly, for each charge against the defendant, even if review of the evidence strictly in terms of the law would indicate a guilty verdict, you have the right to find him innocent. The court cautions that with the exercise of this right comes full moral responsibility for the verdict you bring in. Rejected by House
1998 HB 1534 General direction An accused or aggrieved party’s right to trial by jury, in all instances where the government or any of its agencies is an opposing party, includes the right to inform the jurors of their power to judge the law as well as the evidence, and to vote on the verdict according to conscience. Rejected by House
2000 HB 1236 General direction In all criminal proceedings, where the defendant has made a timely request, the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify. Approved by House, rejected by Senate
2001 HB 133 General direction In all criminal proceedings, where the defendant has made a timely request, the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify. Rejected by House
2003 HB 122 Specific language The test you must use is this: 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. Ladies and gentlemen of the jury, the words for these instructions are chosen carefully. I emphasize the word “should” because you as jurors have the absolute right to decline to enter a verdict which could do violence to your conscience, even if you find that the state has proven its case beyond a reasonable doubt. On the contrary, if you find that the state has failed to prove any element of the crime beyond a reasonable doubt, you must find the defendant not guilty. Approved by House, rejected by Senate
2005 HB 530 General direction In all criminal proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify. Rejected by House
2007 HB 906 General direction In all court proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. The court shall also allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury. Rejected by House
2010 HB 1347 General direction In all court proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. The court shall also allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury. Rejected by House
2011 HB 146 General direction 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. Enacted
2011 HB 1247 Other Defines juries as “constitutional officers” and that “Statutes are guidelines and guidelines only “ Rejected by House
2011 HB 1397 General direction In all court proceedings the court shall instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy. The court shall permit the defendant or counsel for the defendant to explain this right to the jury. Rejected by House
2013 HB 1380 Other Citizens Review Panel. Provides random group of citizens may set aside verdict if they find the statute unjust. Rejected by House
2014 HB 1452 Specific language “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.” Rejected by House
2015 HB 246 General direction 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. Rejected by House
2015 HB 470 General direction In all court proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions it finds to be unjust. The court shall allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury. Rejected by House