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.

 

New Hampshire: House Judiciary Committee approves 10-8 specific jury-nullification language judges must use in criminal cases

The New Hampshire House Judiciary Committee yesterday forwarded with a “Ought to Pass” recommendation HB 133, which would require judges give specific jury nullification instructions in criminal cases. 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.

HB 133 would provide that “in all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” Moreover, the court would be required to utter the following words, exactly

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.

HB 133 now goes to the full House, which approved the same language in 2016 on a 184-145 vote.

 

New Hampshire: House committee votes 12-0 against plan for legislative confirmation of judges; concern for “politicizing of appointments”

A plan to require New Hampshire judicial nominees be confirmed by the state’s legislature was rejected unanimously by the House Legislative Administration committee last week.

Currently the state’s judges are nominated by the Governor and confirmed by the independently elected Executive Council. CACR 5 called for judges to be nominated by the Governor or Council and confirmed by the legislature in joint session.

The committee report (see page 5) recommending the bill be deemed “inexpedient to legislate” (i.e. rejected) by the full House noted that allowing either the Governor or Council to nominate created the possibility of dueling appointments.

As for the joint session element, the committee report noted “concern about the politicizing of appointments” as well as the amount of time judicial vacancies might remain in such a system.

The full House is expected to vote on the bill this Thursday.