New Hampshire: Senate committee rejects specific language for judges to use for jury nullification; House had approved 170-160

Earlier this week the New Hampshire Senate Judiciary Committee voted 5-0 to reject HB 133 which would require judges in criminal cases give a specific jury instruction (discussed here). The House had previously approved the bill on a 170-160 vote.

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

The bill is just the latest in a 20-year effort by the state’s legislature to force judges to give jury nullification instructions and do to so with specific verbiage. A similar bill without specifying what words were to be used was enacted in 2012 only to have the state’s supreme court rule that the law did not require a specific jury nullification instruction.

Special Edition: New Hampshire fee/fine/cost legislation in the 2017 session

SB 200 AS APPROVED BY SENATE

  • Provides no defendant shall be incarcerated after a final hearing for nonpayment of an assessment or nonperformance of community service unless counsel has been appointed for a defendant who is indigent or such defendant has executed a valid waiver of counsel for the final hearing.
  • Provides incarceration of such defendant may occur only if the court, after having conducted an ability to pay or ability to perform final hearing at which the court has made a specific inquiry of the defendant concerning his or her financial circumstances and his or her reasons for nonpayment or nonperformance, finds that the defendant willfully failed to pay the assessment or perform the community service.
  • Requires court prior to conducting an ability to pay or ability to perform final hearing
  • Provide the defendant with a financial affidavit and direct the defendant to complete the affidavit;
    1. Inform the defendant that he or she may be immediately incarcerated if the court finds that he or she has willfully failed to comply with the court’s prior order to pay an assessment or perform community service;
    2. Inform the defendant that he or she is entitled to counsel for the final hearing in which incarceration is a possible outcome and, if the defendant cannot afford one, the court will appoint one; and
    3. Explain the issues to be decided at the final hearing as well as the process provided.
    4. Requires court appoint counsel to represent an indigent defendant at a final hearing on an ability to pay or perform held pursuant to this section if incarceration is a possible outcome of the final hearing.

Approved by full Senate 2/16/17. Public Hearing in House Judiciary Committee 3/15/17.

Texas becomes 4th state to consider bill to permit/require judges give jury nullification instructions; Utah House rejected plan 29-45

Texas this week becomes the 4th state this legislative session to consider a bill to permit or require judges give a jury nullification instruction.

HB 3911 as filed would amend Government Code 23 (General Provisions for Trial Courts). The new subchapter would require a judge’s charge to a jury instruct the members of the jury of their duty to:

  1. judge the law to determine whether the law is unjust or unjustly applied to a party in a case
  2. determine the validity of the evidence and
  3. vote on the jury verdict according to the members’ consciences.

The Texas bill is similar to one filed in Utah (HB 332). That bill would have required judges inform jurors of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

The bill was rejected by the full Utah House on a 29-45-1 vote earlier this month.

The other two bills (Oregon 924 discussed here and New Hampshire HB 133 discussed here) have not advanced in the last several weeks.

 

Oregon becomes 3rd state to consider bill to permit/require judges give jury nullification instructions; bill includes exact wording to be used

Efforts to permit or require judges in criminal cases give jury nullification instructions (discussed here) have now been introduced in a third state this session.

Oregon SB 924 would not only require judges give a jury nullification instruction in criminal cases but the bill provides the exact and specific wording to be used.

As jurors, if you feel that a conviction would not be a fair or just result in this case, it is within your power to find the defendant not guilty even if you find that the state has proven the defendant’s guilt beyond a reasonable doubt.

This is similar to the bill approved in the New Hampshire House in that it requires the judge use wording directed by the legislature. This issue came up in that state after the legislature adopted a jury-nullification law several years ago and the courts ruled that the judiciary’s existing jury instructions were sufficient.

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

The Utah bill doesn’t include exact wording, only that defendants would be entitled to have a jury informed of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

Oregon SB 924 has been filed in the Senate Judiciary Committee.

Jury nullification legislation: pending on Utah House floor; cleared New Hampshire House & pending in Senate committee

Efforts to require judges give, or allow, jury nullification information in criminal cases have cleared legislative hurdles in Utah while the New Hampshire version remains pending in the Senate after House approval.

Utah HB 332 as amended provides that in all criminal cases, defendants would be entitled to have a jury informed of

  1. the potential sentence for a guilty verdict and
  2. “the jury’s power to find a defendant not guilty when a guilty verdict would be manifestly unjust.”

HB 332 cleared the House Judiciary Committee on a 7-4-1 vote on February 24 and the House Rules committee on February 28. It is now pending on the House 3rd Reading Calendar.

Meanwhile, the 2017 New Hampshire jury nullification bill (HB 133), that includes the specific wording/language judges are to use in instructing a jury, was approved in mid-February by the House (discussed here) and remains pending in the Senate Judiciary Committee.

 

New Hampshire: House committee rejects 13-0 plan to expand judicial performance evaluation program to include all court personnel

Since the 1990s (by rule) and 2000 (by law) New Hampshire has provided for a judicial performance evolution program (R.S.A. 490:32 and Supreme Court Rule 56) that produces annual reports on how the state’s judges fare in areas such as Temperament, Legal Knowledge, and Attentiveness. This year, an effort made in the House to expand that program to cover all court personnel has been rejected.

HB 311 would have amended R.S.A. 490:32 to read in operative part (new language in bold)

The chief justice and a majority of the supreme court, in consultation with the administrative judges of the superior and circuit courts and other nonjudicial branch officers as established by court rule, shall design and implement by court rule, a program for performance evaluation of judges and court personnelThe program for performance evaluation shall ensure that each judge and court employee is evaluated a minimum of once every 3 years.

That proposal was rejected by the House Judiciary Committee as Inexpedient to Legislate on February 15 by a 13-0 vote.

New Hampshire: House approves 170-160 specific language for judges to use for jury nullification

Earlier today the New Hampshire House approved on a 170-160 vote HB 133 which would require judges in criminal cases give a specific jury instruction (discussed here).

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

The bill is just the latest in a 20-year effort by the state’s legislature to force judges to give jury nullification instructions and do to so with specific verbiage. A similar bill without specifying what words were to be used was enacted in 2012 only to have the state’s supreme court rule that the law did not require a specific jury nullification instruction.