Mimesis Law
16 July 2019

New Hampshire Does That Thing Where They Try to Make Jury Nullification the Law Again

February 21, 2017 (Fault Lines)– There is a strange intersection on the Venn diagram of political beliefs for those who support jury nullification. It’s one of those very few issues on which pot-smoking Bernie bros and gun-toting militia types are in perfect accord. What else could unite Ammon Bundy and NORML? Moreover, because it deals with the power of the people to nullify unjust criminal laws, it underlies many, if not all, of the other issues these otherwise disparate factions adore (like marijuana legalization.) And, all the while, this is an issue almost universally loathed by the mainstream.

Lawmakers in New Hampshire, perhaps 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 official part of its criminal law. While the New Hampshire legislature apparently tries this every year without success, it raises an interesting discussion about the role of the jury, particularly in these rudderless end-times. The New Hampshire bill, which is likely to die in the state Senate, “requires the court to instruct the jurors that the jury determines the applicability of the law to the facts of the case” and provides:

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. At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows: “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.”

This “unjust result” instruction appears to be sponsored and supported primarily by state Republicans, but it certainly reads like one any fan of the real Steve Miller would love.

Like it or not, the act of jury nullification (the power or tendency of a jury to simply ignore the law and acquit a guilty person) is a common phenomenon. Jurors are generally sophisticated enough to understand what the hell is going on behind the scenes, or at least imagine what is going on, and occasionally, a few nonconformist-oppositional types sneak through voir dire and decide to do something about it.  But, a big feature of jury nullification is that it has to happen in secret. Defense lawyers can’t ask for it. Members of the venire who admit to believing in it will be dismissed. Judges make it clear to the jury in jury instructions that nullification is forbidden.

This bill would like to take all of that secret wrangling, and the winks and nods by defense lawyers, and all the “do your duty” and “follow your oath as a juror” talk by the judges and prosecutors and bring it all out in the open. As much as defense attorneys would love to see this become a reality, this kind of overt support for nullification is very much outside the mainstream.

But, why?

The positive aspects of nullification are obvious. Criminal practitioners have all seen totally bogus cases brought against clients, even when they are technically valid. The most obvious example might be marijuana prosecutions. Yeah, it’s illegal. We know. But there is something strange, for example, about imprisoning people in federal prison in Colorado on marijuana charges.

Critics have argued that the biggest problem with nullification, in general, is that it is inherently arbitrary. Jury selection is a total crapshoot anyway. Once you start actually telling a jury it can acquit a guilty person for whatever arbitrary reason it wants, the justice system doesn’t really mean much.

This is probably true, but it doesn’t matter. Nullification happens anyway, and jury selection is a crazy and arbitrary process to begin with. Where the venire comes from, in general, and who of that potential pool actually shows up to court has more to do with verdicts than probably anything else in the justice system. It’s hard to see how an official recognition of this arbitrariness makes the system any worse.

Perhaps a more substantial problem comes in the form of discriminatory jury action. I’ve written about discriminatory acquittals before, and, certainly, horrible acts of racist violence being nullified by white juries is a terrible feature of our nation’s history.

But a nullification instruction doesn’t really move the ball very much on this problem. Discrimination in verdicts is the product of bad juries more than bad instructions. Ostensibly, Batson and related doctrines exist to ensure that racial discrimination is not a product of jury selection at all. This should, in theory, do more to protect against racially discriminatory nullification than the absence of an instruction. After all, even if the nullification instruction was given, a lawyer still shouldn’t be allowed to expressly argue for an illegal “unjust result,” such as the advancement of racial animus.

Whether nullification is good or bad is a perennial debate in law school classrooms, basements, and remote forest compounds, but not so much in regular society. That is a shame. Nullification should be a mainstream topic, and New Hampshire’s bill shouldn’t be a silly outlier.

On the bright side, the current political climate has been dominated by the elevation of the bunker-dwellers into the mainstream. Perhaps they will bring nullification with them. Either that or the world will end forthwith. At which point nullification is hardly the most pressing concern.

2 Comments on this post.

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  • JohnM
    22 February 2017 at 10:03 am - Reply

    “rudderless end-times”. I dispute that we are rudderless.

  • Marshall
    24 February 2017 at 2:41 pm - Reply

    The real purpose of having a jury is to prevent the state from going too far off of the rails in the prosecution of the citizenry. Nullification (or, voting your conscience) is an essential part of this goal.

    To acquiesce in a wrong is itself a wrong. It may be at times the lesser evil, and thus may have to be borne, but it is still a wrong, and there are times when it should not be borne. If a citizen feels that it would violate their conscience to convict someone, they should vote to acquit. To say that this is a violation of justice is perverse.

    I fully realize that there are times when juries will vote, not their conscience, but their prejudices. They do that anyway, of course; it is not viewed as a reason to get rid of jury trials and it shouldn’t be a reason to try and forbid citizens to vote their conscience.