Juries

New Hampshire Adopts Jury Nullification Law

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No, no, you have it wrong. That's NOT how nullification works.

Jury nullification, in which jurors refuse to convict defendants under laws they find objectionable or inappropriately applied, is a favored tactic of many libertarians who, rightly or wrongly perceive individual liberty as, at best, a minority taste among their neighbors. They like the idea of a tool that can be wielded on the spot to shield people from powerful control freaks without first having to win a popularity contest. But nullification is useful only if people know about. And last week, New Hampshire's governor signed a law requiring the state's judges to permit defense attorneys to inform jurors of their right to nullify the law.

On June 18, Governor John Lynch signed HB 146, which reads:

a Right of Accused. 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.

Short, simple and to the point. Nullification advocate Tim Lynch, of the Cato Institute, thinks it's a step in the right direction, though not necessarily a game-changer. Says he:

This is definitely a step forward for advocates of jury trial.  Allowing counsel to speak directly to the jury about this subject is something that is not allowed in all the courthouses outside of New Hampshire–so, again, this is good.  I am concerned, however,  that this language does not go far enough.   We don't know how much pressure trial judges will exert on defense counsel.  As noted above, if the attorney's argument is "too strenuous," the judge may reprimand the attorney in some way or deliver his own strenuous instruction about how the jurors must ultimately accept the law as described by the court, not the defense.  I'm also afraid what the jurors hear will too often depend on the particular judge and, then, what that judge wants to do in a particular case.

So the law is an improvement over the old order, especially in an era when courts and judges are overtly trying to suppress jury independence, but one whose effectiveness is yet to be determined.

But is this faith in jury nullification misplaced? How likely are we and our neighbors to symbolically flip our middle fingers to the powers that be and free defendants charged with, say drug offenses or gun law violations? After all, the power has long existed, but you don't often hear of juries staging revolts.

It does happen, though, as a much-covered 2010 Montana case demonstrates, when a trial never even started because the court was unable to find enough jurors willing to convict somebody for marijuana possession. And a lot of nullification may fly under the radar, because it results in hung juries rather than full acquittals, and because judges and prosecutors really want to keep it quiet.

Back in 1999, the Washington Post wrote:

In courthouses across the country, an unprecedented level of juror activism is taking hold, ignited by a movement of people who are turning their back on the evidence they hear at trial and instead using the jury box as a bold form of civil protest. …

The most concrete sign of the trend is the sharp jump in the percentage of trials that end in hung juries. For decades, a 5 percent hung jury rate was considered the norm, derived from a landmark study of the American jury by Harry Kalven Jr. and Hans Zeisel published 30 years ago. In recent years, however, that figure has doubled and quadrupled, depending on location.

That article featured a pre-gunrunning Eric Holder objecting that, "There is a real potential danger if this problem goes unchecked."

The article's hung jury estimate wasn't just guess work. A 2002 study (PDF) on hung juries by the National Center for State Courts found that "In 63% of cases in which the jury deadlocked, the majority of jurors voted in favor of conviction compared to 24% of cases in which the majority of jurors voted in favor of acquittal …" Such numbers are considered a strong, if not conclusive sign of widespread nullification.  Two of that study's authors, Paula Hannaford-Agor, of the National Center for State Courts, and Valerie P. Hans, of Cornell Law School, penned a 2003 paper (PDF)  published in the Chicago-Kent Law Review that said:

The criminal justice community has become increasingly concerned about the policy implications of jury nullification, especially as jury nullification manifests itself in hung juries. A number of communities, especially in California, report that up to one-quarter of all criminal jury trials routinely result in mistrials due to jury deadlock.

That paper also concluded that strictly defined nullification isn't always distinguishable from doubts about the strength of a case, since the two tend to run together when jurors are skeptical about the credibility and legitimacy of police and the courts.

So jury nullification may be one of those things we're already soaking in without realizing it, because people with doubts about the law stubbornly bring acquittals or deadlock juries without painting their actions in political colors. Now, in New Hampshire, maybe we'll get to see what happens when jurors are told that what they're already doing is officially OK.

NEXT: Reason Writers Around Town: Shikha Dalmia on Detroit's Ongoing Fiscal Farce

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  1. Should be interesting to see how this plays out.

  2. Kinda makes you wonder sometimes doesnt it? Wow.

    http://www.Mostly-Anon.tk

  3. It would be awesome if we could get something like that down here in Texas. I doubt the Red Meat “we’re just trying to protect you and your children” assholes would squash it though.

  4. The criminal justice community has become increasingly concerned about the policy implications of jury nullification, especially as jury nullification manifests itself in hung juries. A number of communities, especially in California, report that up to one-quarter of all criminal jury trials routinely result in mistrials due to jury deadlock.

    I do believe that this why the standard of “beyond a reasonable doubt” was created. To make sure that the person imprisoned for a crime is the actual culprit, not a piece of red meat offered up to appease the mob, a check in the prosecutor’s win column, or a closed case in the police department’s records.

  5. It also seems to me the smart jury nullification advocate shuts up about entirely about during slection and voir dire and then just hangs the jury.

    I dunno, I never get called to be on the jury when I do jury duty.

    1. I’ve been in WA state for 17 years and a homeowner for the last 14, and I’ve never been called. I hope if I do that its a chance to use JN.

      1. I went through a period of years when I would get jury summons mailed to my house about once a year. This was exceptionally odd, because I was getting summons for Travis County and I lived in Harris County. So I’d call and explain that I was ineligible, and they’d tell me not to show up. This went on until I moved to Montgomery County, at which point they apparently managed to fix the database.

  6. This is like passing a law that says the police need a warrant to search your home. It’s already covered — anyone on a jury in any state can refuse to convict if they find the law unjust, with no penalty, no matter what the judge says or doesn’t say.

    The NH law seems pretty weak anyway, talking about the “application of the law” and not the justice of the law itself.

    Not surprised that Holder is worried about juries trying to check government power wielded by authoritarians.

  7. “In 63% of cases in which the jury deadlocked, the majority of jurors voted in favor of conviction compared to 24% of cases in which the majority of jurors voted in favor of acquittal …” Such numbers are considered a strong, if not conclusive sign of widespread nullification.

    I would say such numbers are not a sign of nullification at all.

    1. Presumably a trial doesn’t make it to the jury unless the prosecutor things the defendant is guilty and that he can convince most if not all selected jurors of it.

    2. Guilt is not a 50-50 prospect. Surely there are statistical aberrations that will show up when selecting against a distribution around the 90% or 95% or 99% probability that “beyond a reasonable doubt” represents to the jurors.

    1. This would only be evidence … and weak evidence at that … of growing jury nullification if, over time, the percentage of deadlocks due to jurors voting to acquit had jumped from, say, 5% to 24%.

      Strong evidence would be lots and lots of cases in which jurors explicitly said after the deadlock occurred that they caused the deadlock because they felt jury nullification was called for.

    2. How much of a prick would you have to be to be the lone guilty vote on a hung jury? Unless it was some heinous crime that you were absolutely sure the defendant committed.

      It seems much more conducive to human nature to be the lone not guilty vote. With or without nullification.

  8. I appreciate this article. I was wondering recently about the ability of defense attorneys to instruct the juries on their ability to judge not only the defendant but also the merits of the law he is accused of breaking. As someone who wants to go to law school (and maybe specifically into criminal defense) I was wondering what’s stopping that… apparently buddy-buddy prosecutors and judges. We shall see how NH plays out.

    1. In many or most states, such defense statements would directly contradict the Juror Oath. Here’s California’s:

      “Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?”

      1. You could be in favor of jury nullification and still make that oath. For example, if you believe that to “well and truly try the cause” means you must throw out unjust verdicts because that contradicts the rest of the oath …

        Or if you feel that the instructions are unconstitutional, and thus you are not beholden to them …

        Or whatever. All you have to do is to, at the moment you take the oath, interpret the words of the oath in a way that allows jury nullification, and then go ahead and nullify. You might need to invoke your Fifth Amendment rights and not inform the other jurors of your reasons for nullifying, if you think the more statist of them might go to the judge and try to get you tossed off the jury.

        1. For example:

          Some of the rest of the jury: “Clearly, the defendant was dealing weed. So, because of the judges instructions, we have to convict, even though we think weed is OK.”

          You: “I’m not convinced, beyond a reasonable doubt, that the defendant committed a crime. Not gonna convict. End of story. *”

          * unstated thought in your head: “dealing weed is not a crime, despite any laws passed by those dickheads in the legislature.”

  9. The subjectiveness of the strenuousness could possibly be addressed if the NH defense attorney community came up with a sort of a standard nullification disclaimer. If a judge attacked one attorney for using it, he’d be attacking them all, and most judges would think twice about that. But then, I’m not a lawyer.

  10. 12 Angry Men: A tragic story where one juror bullies 11 others into letting a guilty man go free…

  11. While we’re on the subject … allow me to commend to your attention The Just and the Unjust, a novel from the 1940s in which jury nullification is a key issue.

  12. But is this faith in jury nullification misplaced? How likely are we and our neighbors to symbolically flip our middle fingers to the powers that be and free defendants charged with, say drug offenses or gun law violations?

    My actual neighbors … not gonna happen.

    Me, if somehow I wind up on a jury because the prosecuting attorney used up all preemptive strikes on prior potential jurors? 100%

  13. This is a great news. It’ll be interesting to see what effect it has on the conviction rate for nonviolent drug offenses.

  14. I got called for jury duty a couple of months ago and spent about 3 hours reading all about the history of Jury Nullification on my iPad. Great stuff that everyone shoul know. Great tool in the fight against tyranny.

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  16. I’m with protofeed. Jury nullification is a citizen defense against unjust laws.

    Example, the guy who got busted for growing wheat in his back yard was charged with violating interstate commerce when the wheat stayed on his property. Also when Monsanto charges patent infringement when their pollen drifts pollutes neighboring crops Monsanto sues an innocent farmer.

    Then there is the non-violent cannabis user. Cannabis was prohibited based on lies, misinformation, bullying an AMA doctor, fear propaganda, Reefer Madness style. JN won’t change the specific law said to be broken, but it will protect the one on trial.

    Using cannabis, even if ‘illegal’, is not a crime. You can ‘break’ some laws with out committing a crime, as in the case of cannabis users. The basis for cannabis prohibition is the real crime.

    SamFox

  17. The judge’s job is to explain the law. The jury’s job is to deliver justice. The two are often not the same.

  18. Right from the very first time, i don;t love this Jury Nullification Law! it’s outstracious and not good for the long run of this country.

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