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:
- Specific and exact language to be used by judges in directing jurors on nullification
- 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.
Continue reading New Hampshire legislators try again for mandatory jury nullification instructions; judges would have to tell jurors they have “right to veto bad laws”