Mimesis Law
22 June 2018

Jury Nullification: Will The New Hampshire Experiment Happen?

Mar. 15, 2016 (Mimesis Law) — There is no doubt that juries in America have the right to acquit the defendant for any reason or no reason at all, even when they believe that a crime has been proven beyond a reasonable doubt. The government cannot challenge acquittals.

Equally clear? Almost no court will allow an attorney to give the jury that information. Even passing out pamphlets in front of the courthouse informing passers-by of the power of nullification has led to quick arrest for the pamphleteer. Prosecutors often go out of their way to keep even information that might lead to nullification, like the length of the mandatory minimum sentence or the fact that a marijuana grower was operating legally in her state, out of the juror’s hands.

So there’s been a lot of cheering about a new bill in New Hampshire, recently passed by the New Hampshire House of Representatives, that would allow juries to learn that:

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.

Good news, right? Well… not so fast. Not everyone in the criminal defense attorney is all that thrilled with the idea of empowering juries to make that call. As Scott Greenfield has pointed out, “Most people who show up for jury duty would prefer to convict twice rather than nullify.”

Naturally, there are some great cases for nullification. The public might be able to get behind a jury acquitting a guilty possessor of marijuana, a 17-year- old who slept with his 15 year-old girlfriend, or a nun charged with civil disobedience. I once saw a pro se defendant beat a DUI charge by claiming that he was a better driver when he smoked weed.

And sure, there’s a romantic angle to nullification. Think of William “Jerry” Henry, the escaped slave who found himself clapped in manacles for theft, only to become one of the first victims of the Fugitive Slave Law. When an enormous mob of protesters stormed the building where he was held and spirited him away to Ontario, most juries were unwilling to convict the protesters despite the clarity of the law.

Or think of the possibility that prosecutors might decline to seek charges against sympathetic defendants despite their incentive to charge the most serious offense. Would the federal government truly have gone after a Russian woman for bringing money from her home country to buy a house in too small increments if they had feared a jury might acquit rather than cause unnecessary suffering?

But there’s also a dark side to nullification: An unwillingness to hold powerful people accountable when they hurt unsympathetic victims. Take, for instance, Officer Erik Parker.

In Alabama, he brutally body slammed and partially paralyzed an elderly Indian man who did not comply with his commands because he did not speak English. Parker was, he claimed, on the lookout for a “skinny black guy.” Two separate juries were unable to find guilt beyond a reasonable doubt, despite dash cam footage showing the incident. When the federal government sought a third trial, the judge granted an acquittal.

That is the specter of nullification. The power for the accused to turn a criminal trial into a referendum on whether the victim deserved what he got. It is unlikely that many of those who strongly support nullification would be so solidly in favor if, for instance, a professor was acquitted for attacking unpopular protesters.

As the Second Circuit once noted in no uncertain terms:

We categorically reject the idea that, in a society committed to the rule of law, jury nullification is desirable or that courts may permit it to occur when it is within their authority to prevent.   Accordingly, we conclude that a juror who intends to nullify the applicable law is no less subject to dismissal than is a juror who disregards the court’s instructions due to an event or relationship that renders him biased or otherwise unable to render a fair and impartial verdict.

Despite these risks, there are many who would agree with Justice Sotomayor.

There is a place, I think, for jury nullification — finding the balance in that and the role judges should play.

If New Hampshire decides to start informing jurors about their right to nullify, it will be an experiment. It will be an attempt to find the right balance between never telling the jury about its power and giving it carte blanche to acquit in the face of overwhelming evidence. Maybe the right balance won’t be struck right away, but when the scales weigh so heavily in favor of the prosecution, even a little weight in the other direction is appreciated.

6 Comments on this post.

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  • Richard G. Kopf
    15 March 2016 at 6:18 pm - Reply

    Andrew,

    Fascinating post. But, for what it is worth, I detest the idea of jury nullification.

    For a dated but extremely well-researched analysis of jury nullification in America that sets out in detail why there is very little historical, policy or precedential basis for allowing a criminal jury to disregard the law, please see Gary J. Simpson, Jury Nullification in the American System: A Skeptical View, 54 Texas L. Rev. 488 (1976), available for free: http://heinonline.org/HOL/Page?handle=hein.journals/tlr54&div=30&g_sent=1&collection=journals

    As for Justice Sotomayor’s statement that “[t]here is a place, I think, for jury nullification—finding the balance in that and the role judges should play[,]” I will not take her statement seriously until she defines the exact “place” about which she spoke. Her statement is equivalent of muttering: “The rule of law is the law of rules, except when it isn’t.”

    All the best.

    RGK

    PS If New Hampshire goes ahead with this idea, I will eagerly await a challenge to the law when a convicted defendant challenges the law on equal protection and due process grounds under the 14th Amendment.

    • Andrew Fleischman
      15 March 2016 at 9:47 pm - Reply

      Thanks for the recommendation, judge. I’ve been meaning to read up more about the topic, since I’m a little ambivalent.

      Cheers,

      Andrew

  • Jason Peterson
    15 March 2016 at 9:11 pm - Reply

    How many of these wrongful convictions we keep hearing about involved the jury being shown horrific crime scene photos? Photos that do nothing to establish guilt and only serve to inflame emotions.

    How is that okay, but in the interest of justice we can’t tell a jury that if they convict the defendant of stealing a candy bar, he’ll get a mandatory 20 year sentence?

  • Eliot clingman
    16 March 2016 at 1:10 am - Reply

    It’s worth mentioning that prosecutor nullification happens every day, and it’s called “prosecutorial discretion”. And if juries are prone to exercise nullification in favor of rogue cops and the like even more than prosecutors, then the culture is basically screwed.

  • Ye, Of Too Much Faith (In Juries) | Simple Justice
    7 April 2016 at 7:46 am - Reply

    […] New Hampshire may be small, but it’s feisty.  And when it comes to jury nullification, it’s been a leader before, and it’s doing so again. […]

  • New Hampshire Does That Thing Where They Try to Make Jury Nullification the Law Again
    21 February 2017 at 9:05 am - Reply

    […] the state that best exemplifies the demographic cohabitation of the jury-nullifying fringes, has, yet again, voted to make the proud historical tradition of juries telling the government to jam it an […]