Jury Nullification

Jury Nullification Law Gutted by New Hampshire Supreme Court

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Jury
Beinecke Library

Insisting "It is well established that jury nullification is neither a right of the defendant nor a defense recognized by law," the New Hampshire Supreme Court this morning eviscerated a law that was openly intended and widely interpreted as a shot in the arm for the right of jurors to consider the law as well as the facts in criminal cases. It did nothing of the sort, the court sniffed. It just codified existing law allowing the jury to give some thought to the way in which laws are applied.

Yeah. That's why legislators battled and prosecutors fretted over the law's passage.

In the case at hand, The State of New Hampshire v. Richard Paul. Richard Paul was convicted of selling marijuana and LSD. During closing arguments, his attorney urged nullification. By the court's description, the prosecutor acknowledged the jury's nullification role, but argued that the jurors should convict based the law—an understandable back and forth between prosecution and defense.

Then, the judge issued "jury instructions that effectively contravened his 'jury nullification defense.'" Paul appealed his subsequent conviction.

Honestly, the law had been watered down in the course of its passage through the New Hampshire legislature, from a version that, the court concedes, instructed the jury to "judge the law" and "nullify any and all actions [the jurors] find to be unjust." The enacted version reads, instead, "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."

At the time of passage in 2012, Tim Lynch of the Cato Institute said it was "definitely a step forward," but he was worried about the dilution the measure had suffered.

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.

That's pretty much exactly what happened here. Insisting "Were [the law] interpreted to grant juries the right to judge or nullify the law, there would be a significant question as to its constitutionality," the New Hampshire Supreme Court said Paul got more than he was entitled to when the judge in his case allowed his attorney to mention nullification before issuing contrary instructions.

So Paul is out of luck. And defendants in the state can no longer rely on the state's jury nullification law, because the state's highest court says that law doesn't mean what everybody knew it meant.

Below, Reason TV on a happier outcome from a jury.

HT: Kirsten Tynan

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  1. Basically judges don’t like being reduced in importance and made secondary to the jury.

    1. Much of law has very little common sense in it so why should society allow twelve jurors to express any?

    2. Tell me about it. This summer I was scolded and removed during jury selection by a judge when it came up that I thought the jury had the right to vote non guilty based on the facts and the law.

      The judge kept telling the jury that she would give us the relevant law and we could only vote based on the facts. The defense lawyer asked me a few leading questions and it came out that I didn’t agree with the judge.

      The strange thing was that the case was a domestic violence beef, so I wouldn’t have had any qualms about convicting a guy who (allegedly) beat someone.

      The next jury selection was totally different. They judge wasn’t threatened at all when the topic of jury selection came up. Of course, that trial was for Murder 1.

      And it isn’t just judges. I think everyone in the system balks at the idea that 12 plebes can render judgements based on common sense and upset their precious system of arcane rules.

      1. Especially when the law is an ass.

      2. This points to the difference between legislation and law. Law is the rules that society follows, whether it is legislated or not. There are rules we follow that are not legislated, and plenty of legislation that society ignores. We don’t need legislation to say that murder or domestic abuse is wrong, and a good part of society ignores drug legislation. When law and legislation differ from each other is when nullification comes into play.

      3. I wasn’t scolded but I did get excused based on an answer to a questionnaire on that topic.

        In another case I had some back and forth with the prosecutor over my views that reduced sentences in exchange for testimony was legalized bribery. Surprisingly, I ended up on the jury anyway.

      4. I was a foreman on a carjacking case back in San Diego. It’s quite interesting how most people on a jury will move with the group. In that particular case, we convicted. It only took me 10 minutes to turn 4 votes from not certain to guilty. I figured it would have taken much longer.

      5. In 13 years I’ve been eligible I’ve never received a summons for jury duty.

        1. Expect it tomorrow.

          1. I would love it. I get paid while I’m on jury duty, so it costs me nothing. And as much as it outrages tulpa, I will not vote guilty for anyone accused of breaking a bad law.

        2. I’ve only had one in 18 years and I had just moved to a different county, so I didn’t have to do it.

      6. VERY foolish to let anyone know that you might nullify Pope. At the very least a man could have wrongly ended up in jail because of your myopia.

    3. “Live According To Judicial Instructions Or Die” is going to be a lot harder to fit on the license plates.

    4. Basically Reason doesn’t like drug laws so it openly courts confusion and chaos in the legal system. But if for instance a Texas jury were to nullify an attempt to prosecute an abortion protestor, or a Massachusettes jury the prosecution of a corrupt union organizer then Reason would be enraged.

      1. Nice straw man you’ve got there. Shame if someone were to set fire to it.

        1. Give it a shot. You aren’t very smart though so maybe let some else give a try. You tried below and it got shoved right back in your face.

          1. How is jury nullification court confusion or chaos in the legal system? the jury are tasked with finding someone guilty or not guilty, so what difference does it make what reason they found them not guilty? Are you advocating for getting rid of juries?

            1. He’s obviously arguing in bad faith. Not worth it other than to ridicule him.

            2. Of course, juries nullify all of the time. They don’t like a law or even some element of it, then they ain’t going to convict unless the court process scares them out of their moral principles.

          2. You don’t know what straw man means, do you? You are the one who set fire to the straw man, which was your own caricature of someone else’s position.

            But, sure, tulpa: If a jury (geography doesn’t matter) were to nullify an attempt to prosecute any protestor (subject doesn’t matter to people with actual principles), Reason would be thrilled, because protesting is not a crime. And if a jury (again, the “Massacussettes”(sic) thing is only a trigger for your fearful power-worshipping lizard brain) nullified the prosecution of a legitimate corruption case, although ideally the case would be better defined since “corruption” is extremely vague.

            1. The point of nullification is a citizen right to stand between the accused and the state. We have such checks throughout the system and, frankly, we need more of them, not fewer. Or has the government at all levels not grown out of control?

              Incidentally, if a locality started just acquitting everyone for a certain law, the prosecution would be within its rights to change the venue on that basis. If all venues were acquitting at will, then maybe the law is the problem, not the juries.

              1. I don’t think you could get a change of venue for that reason alone.

              2. We have such checks throughout the system and, frankly, we need more of them, not fewer.

                But but OBSTRUKSHUNNIZM!

      2. You are obviously a giant asshole tilting at windmills here, but I will respond anyway. Is this Tulpa’s latest incarnation?

        Maybe there should be some confusion and chaos in a justice system that routinely locks people up for completely illegitimate reasons.
        And I am pretty sure that most of the Reason staff would be good with letting off an abortion protestor if they were charged with violating a buffer zone or something like that.

  2. Does this mean my plan for getting out of jury duty will no longer be in play?

  3. What do we need juries for, then? Why not just use a computer?

    1. “What do we need juries for…?”

      Because even dictators enjoy validation?

      1. It seems a lot of work to rubberstamp our legal system.

        1. Not when one considers that authoritarian systems tread a fine line between legitimacy and uprising.

          1. The Soviet constitution had a lot on civil liberties, like freedom of speech.

    2. Is this a serious question? English common law has made effective use of juries for centuries without elevating juries to a twelve man rougue legislature. Fight laws you don’t like in the court of public opinion and by winning elections don’t opt for the easy way out by sowing chaos. If jury nullification exists then citizen grand juries should be able to indict abortionist for murder. A government of laws not a government of men. How is twelve men deciding on a whim any different than a king doing so.

      1. If jury nullification exists then citizen grand juries should be able to indict abortionist for murder.

        Nullifying law is not the same as creating law. But you knew that.

        1. It absolutely is. But that’s inconvient. And again point the law legalizing aboration is Texas out to me.

          1. It absolutely is.

            You are dishonest or stupid (that’s an inclusive or, meaning it could be both).

            1. It must be frustrating having me come on here and expose you guys daily. But the name calling isnt really accomplishing much. I’d try reading more.

              1. Try reading up on some basic logic while you’re at it. It may save you from looking like an ass.

                1. I’m starting to feel bad for you guys. I thought you gue actually knew the subject as were just lying. But you guys really don’t know anything about the subject. If jury nullification weren’t popular with druggies you guys wouldnt even know about it. I’m delighted with how ignorant you guys are nothing better than an angry, bitter, ignorant opponent.

                  1. In other news, Tulpa voted today to bring back writs of attaint.

                  2. You get more incoherent the more your screeds get wrecked by reasoned arguments.

                    1. You haven’t made a single reasoned argument yet. Just BS spelling corrections. You are the saddest person. I’m delighted I frustrate you so much though. Stuffy little nerds are so much to mess with.

                    2. You haven’t made a single reasoned argument yet

                      Lol, and you have?

                      Bahahaha.

                  3. I thought you gue[sic] actually knew the subject

                    Dude, you get exposed as an ignoramus and completely destroyed later in the thread.

                    This is rich.

              2. It must be frustrating having me come on here and expose you guys daily.

                It must be gratifying to be able to convince yourself that that is what happens.

                1. Remember: chess with a pigeon, guys, chess with a pigeon.

          2. Ok, slowly now:

            R-o-g-u-e

            and

            i-n-c-o-n-v-e-n-i-e-n-t
            a-b-o-r-t-i-o-n
            i-n.

        2. Does Tulpa know that? The facts are not on your side.

          1. Ohhhhhh…. I should have known.

        3. Nullification is an established part of the common law. It’s been swatted down in the U.S. over the years, but there’s no question it’s been traditionally a major part of the jury system. The Zenger case is a classic example of that.

          One thing with nullification is that it has been discredited because of abuse in situations like lynchings of blacks and the like, but one always has to keep in mind that pretty much all other aspects of the judicial process have been abused and/or have endemic flaws.

          There’s a certain logic to not telling the jury to toss out their principal function as the trier of fact, but it’s rather silly and a bad idea to try to second guess juror motives for voting to acquit. If they feel a law assails their conscience, then they aren’t going to convict–whether or not they’re told not to base their decision on their opinion about the law.

          1. Whatever the law says, jury nullification has to be something that can happen, or juries would be stripped of any actual function.

      2. More accurately, if you had the “right” grand jury they could not indict someone who shot an abortionist for murder. I’m not sufficiently familiar with the grand jury process to say if it would only require one juror to decide that in order to make it stick, or if you’d need more.

        1. My example was perfectly accurate. There is nothing in common law that states nullifying a law is different than enacting. The process for repealling a law is exactly the same as enacting them. The distinction between nullifying a law and creating a law are non existent in terms of process. This is basic guys and yet none of you get this.

          1. your an idiot.

          2. “There is nothing in common law that states nullifying a law is different than enacting. ”

            lololol

            1. Point out the difference. You can’t. You guys are pathetic.

              1. lololol

                1. Exactly. You’ve got nothing.

                  1. lolololollolollolol

                1. Still nothing. The principle behind jury nullifcation is no different than the principle behind citizen grand juries. Both attempt to annex legislative roles that don’t belond to them. Fuck off slaver. I don’t want 12 petty tyrants forcing me into slavery. You ain’t elected you don’t get to make te laws slaver.

                  1. Your exactly right Sam why have 12 slavers when you can settle for one. If your anything your monogomous in your slavish dedication to one authority.

                  2. “I don’t want 12 petty tyrants forcing me into slavery. ”

                    By acquitting someone of something!

                    lololololoolololololollololol

              2. Point out the difference.

                Nullification is not repeal. It just means that in that one instance the jury refuses to convict, even though the facts say the defendant was in violation of some legislation. It doesn’t affect any cases other than the one in question.

                Being that legislation is not being repealed, it makes no sense at all to say a jury has the power to enact legislation.

                No please go back under your bridge.

                1. A one time conviction isn’t legistlation either. It’s a one time exception in accords with justice. Basically jury nullifcation is the logical equivalent of lynching you can’t dispute this.

                  1. Any conviction under an unjust law is tragic, and any escape from an unjust prosecution is good. Jury nullification is the opposite of lynching. It is saving someone from a lynching.

                    And

                    l-e-g-i-s-l-a-t-i-o-n.

                  2. A one time conviction isn’t legistlation either.

                    Nor is it nullification.

                    Basically jury nullifcation is the logical equivalent of lynching you can’t dispute this.

                    Because refusing to convict is the same as convicting? Um, sure. Whatever.

                  3. So in other news, Sam Haysom is to crime what Tony is to economics.

                    Not jailing is lawmaking, and not lawmaking is jailing.

                  4. A one time conviction isn’t legistlation either.

                    Did someone here suggest that it was?

          3. This is basic guys and yet none of you get this.

            Most people here understand basic logic. Apparently you do not. Because if you did, then you would see why you are wrong.

          4. The burden of proof is on you to demonstrate that this power to enact law has ever been used or even exists. Otherwise shut the fuck up.

            1. No slaver the burden of proof is on you to proof why a concept that has been repeatedly rejected shouldn’t be. Again jury nullifcation is illegal and illegimate according to our system. I’m fine with that the burden is entirely on you.

              1. p-r-o-v-e.

                See, some English words have more than one form, such as “prove,” which is the verb form of “proof.” They are related, but different, words. Maybe have someone read you the difference between nouns and verbs.

                1. In other words you have no argument. Fuck off grammar nazi. You’d make a great concentration camp gaurd slaver.

                  1. You don’t even know how any of this works.

                    Why are you still here?

                    LOLOLOLLOLLLOOLLLOLLLLOLLOLOLLOOLOL

                  2. g-u-a-r-d.

              2. Again jury nullifcation is illegal and illegimate according to our system.

                Uh, that statement is directly contradicted by the facts. Particularly by the facts of the case that this post refers to.

          5. Your example doesn’t work. Jury nullification can only work one way. It can’t work to convict the defendent because the judge always has the authority to enter a verdict of not guilty not withstanding the jury verdict. The judge also has the power to enter a directed verdict of not guilty after the government’s case in chief and never let the jury make the decision.

            In the examples you give, it would be the responsibility of the judge to correct the error. The only way jury nullification actually happens such that the judge doesn’t also have to be in on it is when the jury acquits.

            1. And the jury would then nullify the judges ruling. If we live in a judicial supremacy then I’m not why this article got written. If we don’t then there is nothing to say that judge can’t have his ruling vacated by that same jury. Judges have already ruled that jury nullification is a non-starter. If that doesnt matter then I hardly see how a judge setting aside a verdict matters. You want controlled chaos it never works that way.

              1. “And the jury would then nullify the judges ruling. ”

                ?!?!??!?!?

                AHAHAHAHHAHAHAHHAHA

                YOU DON’T EVEN KNOW HOW THIS WORKS!!!!!!

                OMFG LOLOLOLOLOOLOL

                1. Jury: “I’m sorry judge we overrule your directed verdict!”

                  Judge: “WTF? LOLOLLOLLLOLLLOL”

                  1. You are obviously a troubled likely simple minded man. Probally not retarded but reading was probally very hard for you. So I will put this simply. Every time a jury nullifies a prosecution they are defying a legal ruling forbidding jury nullification. Every time. The judges have spoken on this. So lololol right back slaver.

                    1. You STILL THINK A JURY CAN OVERRULE A JUDGES DIRECTED VERDICT.

                      LOLOLOLOLLOLLLOLLLOLLLOLOLOL

              2. And the jury would then nullify the judges ruling.

                Ah no. Once the judge enters a not guilty verdict, the trial is over. The only way it could ever continue is if the government appeals and gets a appeals court to rule the judge was wrong in entering the verdict. But even then, the government would have to get a new jury and have a new trial. The jury can’t overrule the judge. They can only acquit a defendant without worry of a judge overruling them.

                1. Then why can juries keep nullifying in contravention of repeated rulings otherwise. This is my point once you say shut up judge what you say doesn’t matter you don’t get to fall back on the rest of the system of judicial supremacy. It’s gone. You want to be able to defy rulings on jury nullification. Well ok but it’s not going to stop there.

                  1. The problem is that what you’re describing doesn’t actually happen, because the legal system doesn’t work the way you think it does. This is caused by your ignorance (lack of knowledge) and compounded by your stupidity (enthusiasm to stay that way).

                    1. Once you commit to jury nullifcation you don’t get to say how the court system works anymore. Do you not get this? The court system as it currently functions does not allow declared jury nullification? If you want to let juries start nullifying then understand that means juries can now nullifying superior court rulings. You have no idea where that will lead. I could easily see it as leading to juries refusing to recognizing vacated rulings. Once juries defy one ruling can they easily start defying other rulings.

                    2. The court system as it currently functions does not allow declared jury nullification?

                      Yes, actually it does. You still don’t have any idea what nullification actually means, evidenced by the following:

                      If you want to let juries start nullifying then understand that means juries can now nullifying superior court rulings.

                      Juries don’t evaluate court rulings. You literally have absolutely no idea what you are talking about.

                    3. juries refusing to recognizing vacated rulings

                      What the fuck are you talking about?

                    4. Boy, I say boy?… What on earth are you talking about? It sure isn’t jury nullification…

                      Jury nullification is a simple refusal to convict. Nothing more. It has no power to set precedent or call other rulings into question.

                      If you somehow see a pathway where it does more than this, please explain. Otherwise, we need to add slippery slope to your long list of logical fallacies.

                    5. You have no idea what you’re talking about, so your pontification on “where it will lead” is meaningless.

                      Juries do not get to re-evaluate the entire legal system in one criminal trial. They decide based on the facts of the case at hand, and their decisions do not establish any precedent.

          6. “The distinction between nullifying a law and creating a law are non existent in terms of process.”

            How is invalidating a law used to remit punishment in a specific trial creating new law that affects the total citizenry?

            The law still exists even after the jury nullifies it for use at a trial.

            1. Who says its creating a new law? Maybe it’s a one time thing. And nullification is a type of mini-legislation precisely because only the executive or the soverign has the right to commute sentences. Every time a jury nullifies a conviction they are claiming powers that don’t belong to them like a typical slaver.

              1. You said it’s creating a new law.

                The distinction between nullifying a law and creating a law are non existent in terms of process.

                1. That was a typo I meant to write repealing. Nullification is an attempt to conduct legislation by a body not entrusted with law making powers. A jury has no executive function it cannot pardon or commute sentences. Therefore a jury can only grant a one time legislative exemption to the law. That’ what jury nullifcation is 12 tyrants deciding to change the laws in one case. That is no different than a citizen’s grand jury indicting someone one time for an offense against which there is no law.

                  1. That was a typo

                    You’ve gone from just not knowing how to spell to not knowing what whole words mean. Just admit you’re wrong and fuck off.

                    1. Ok, keep flinging your poorly-thought-out shit around and telling yourself you’re the smartest person on the planet if it helps you stave off the crushing reality of your own ignorance for a few seconds. But you could maybe try to learn something instead.

              2. Then you clearly also have a problem with hung juries which are far more common than nullification with practically the same result- no conviction.

                Jury nullification has been a powerful tool that has helped protect more than a few decent Americans from statist oppression.

                Do you believe that law is inherently perfect and it supremely serves the interest of the common man? If not, then no amount of voting or fighting to change shitty laws through legislators will ever be as successful or affect common lives as quickly as a solid act of nullification that is engaged in on moral/ethical grounds.

                1. And a stable legal system with upheld norms of conduct has protected a good deal more. A guess what French kings were often more committed to justice than the local parlements. The question is are we a nation of laws or a nation of men and juries.

                  I just don’t trust peope to only use exceptions to the law for good. Neither do you of course when it is President Bush or Obama saying trust us. Currently inner city juries nullify prosections of horrendous, shitty people in order to stick it to the man. If I have to defend every abuse then so should you.

                  1. So in other words, you want to repeal the Sixth Amendment because you think judges and prosecutors are not people but are instead perfect instruments of the law because magical thinking makes you feel good inside.

                    1. Where in the sixth amendment is a jury given the right to ignore the law?

                    2. The jury only has one power: to acquit or convict the defendant at hand of the crime the state has charged him with.

                      That is it, no more and no less, and the only way around it is to repeal the Sixth Amendment.

              3. And nullification is a type of mini-legislation precisely because only the executive or the soverign has the right to commute sentences.

                Nullification isn’t a commutation of sentence you abject retard – sentencing follows conviction.

                1. It absolutley is. Otherwise they would find the defendant not guilty. Do you even understand what’s going on in a jury nullification. The jury is saying the accused is guilty but the law is unjust. That is nothing but a pardon or in the case of mandatory sentencing a commution. You problem is a lack of logical rigor, an abundance of rage, and if I had to guess an acute case of blue balls.

                  1. P-r-o-j-e-c-t-i-o-n.

                    1. B-L-U-E B-A-L-L-S

                    2. Yay, you spelled something right!

                  2. “Otherwise they would find the defendant not guilty. ”

                    AHAHAHAHAHAAHAHAHAHAHAHAHAHAAHAHAHAHHAHAHAHA

                    THAT’S WHAT THEY DO AHAAHAHAHAHAHAHAHAAHHAHAAHAHAHAHAAHAHHAA

                  3. Yes, when the jury returns a finding to the judge, they have a choice of “guilty”, “not guilty”, or “nullify” and if they nullify, then every jury thereafter must do the same thing. /derp

                    Your problem is that you do not understand what you’re talking about but keep spouting off like you do.

                    1. Your problem is that you do not understand what you’re talking about but keep spouting off like you do.

                      It would be comical if it weren’t so goddamned sad.

                  4. Do you even understand what’s going on in a jury nullification.

                    Yes. I do. You are the only person in this thread confused as to what is going on in a jury nullification.

                    The jury is saying the accused is guilty but the law is unjust.

                    No, they’re not. They’ve voting to find the defendant not guilty on the basis of the justness/morality of the law.

                    That is nothing but a pardon or in the case of mandatory sentencing a commution.

                    No, it isn’t. You have to be convicted of a crime before you can be sentenced, and you have to be sentenced before your sentence can be commuted. By purposefully neglecting to convict a defendant of a crime, the jury bypasses the entire sentencing phase by definition. You seem to think that when a jury nullifies, the defendant is found guilty but then not sentenced. That’s not how our jury system works. You should have learned enough to participate intelligently in this discussion in 5th grade civics, but as it sits you don’t even understand the difference between the phases of a trial.

                  5. Wow. Did Tulpa used to be this totally stupid?

                    Juries decide innocence or guilt. The end. If juries have that power, then they will have the power to nullify. The only way to take the power to nullify from them would be to completely strip them of the power to acquit. What they fuck do you want to do? Put whole juries on trial for reaching the wrong verdict? You really can’t see how that completely remove the protections provided by a jury trial?

      3. English common law has made effective use of juries for centuries without elevating juries to a twelve man rougue legislature.

        Nullification is actually a long-established feature of common law. In this country it was used in colonial times to nullify religious persecution and the Navigation Acts, for example. Prior to the Civil War it was employed in certain cases involving the Fugitive Slave Act. Spend 30 seconds at google before sticking your foot directly into your mouth next time.

        1. And yet it has never been accepted practice. I never said it didn’t occur, but commuting of sentences has always been reserved for the executive or soverign. So in face I know a lot more about it than you do.

          1. “So in face I know a lot more about it than you do”

            In face, you think juries can overrule a judges directed verdict.

            LOLOLOLOLOLOLOLLLOLOLOL

          2. f-a-c-t. You were close that time.

          3. And yet it has never been accepted practice.

            I don’t know what your definition of “accepted” entails, but, actually, yes, it has been – like, for example, all of the times that it has been employed by juries and affirmed as a legitimate exercise of their powers going back over 400 years.

          4. The executive has the power to pardon because the concept of the King’s Peace came to mean that criminal offenses were offenses against the king, just as crimes in the United States are offenses against the state. Implicit in this claim is that the king was the feudal lord of all his citizens subjects. That said, from a separation of powers perspective, I see nothing wrong with the executive branch refusing to execute a sentence. I also don’t have a problem with a jury deciding to withhold judgment. The reason we have citizens on juries is to limit the power of the state, which nullification surely does. To say that the executive and only the executive has the power to pardon, so to speak, is to affirm feudalism.

            Your claim that juries should not be “rogue legislatures” is also off the mark. Juries predate legislatures and (arguably) judges. Today, Common Law is often conflated with judge-made law, but it originally was a harmonization of various Customary Law systems created by juries. Common Law dates back to Ranulf Glanvill’s 12th century treatise (not to discount what Bracton did in the 13th century). The Model Parliament didn’t occur until 1295. The whole concept of whether anybody could really legislate was very hazy for a long time, because customary law was considered almost synonymous with natural law.

            1. Continued

              You keep babbling about Citizen Grand Juries. Are you talking about so-called “Common Law Grand Juries?” Those have nothing to do with the common law or grand juries. The Magna Carta was private law (ostensibly a contract between the king and his magnates), and so it is relevant to Common Law, but probably shouldn’t be lumped into that category. Secondly, a grand jury indicts rather than convicts, and it seems that these CLGJs intend to convict officials. In any event, the Magna Carta Article 61 commissions they use as a model never existed in fact, precisely because they lacked popular support (as did the similar commissions created later by the Provisions of Oxford). The citizenry effectively nullified written law.

          5. “Accepted Practice”?

            Accepted by whom? I accept it. Many judges and state laws accept it (this ruling didn’t say juries couldn’t nullify, just that judges can instruct them not to). You are completely full of shit.

      4. I love it when the trolls try to talk about history. It really exposes how pig ignorant they truly are.

      5. Actually, English common law is from where we in the United States draw our jury rights?including the right of jury nullification?from. Please see the jury nullification case of William Penn, commemorated on Jury Rights Day, and the case of Edward Bushell, a juror whose punishment for refusing to convict Penn was overturned by a higher court. These cases provide a firm foundation for jury nullification in English common law. And you can go back even further in English common law for more foundational material.

        Kirsten C. Tynan
        Fully Informed Jury Association
        http://www.FIJA.org

    3. You need the juries, just be sure you buy billboard space all around town saying, “You can nullify!”. NHSC probably make you take those down, too.

    4. My sister’s best friend’s computer makes $12.50 a day as a compu-juror dishing out justice in ones and zeros. It only worked 600 hours last month and voted to convict 99.98% of the time.

      http://www.robojuror.tk

      1. *laughing*

        *now weeping*

      2. slow clap

        1. Hey! I like Belinda Carlisle! What’d she ever do to you??!!

          LEAVE BELINDA ALONE!!!!

          *cries into camera – posts to YouTube*

          1. Ooo baby, you know what that’s worth?

  4. As a juror, regardless of what I’m allowed to hear from defense, can I not still vote to convict or not based on my own criteria?

    1. As a juror, I will vote on my own criteria.

      1. Yeah, as I said above I had a run in with a judge who didn’t like the idea that a juror would follow their conscience.

        She kept telling me that if I was selected for the jury that I would take an oath to follow her process (she gives the law, jury determines on facts only). She then followed up with if I would follow that oath.

        My reply was that I wouldn’t take any oath that made me violate my conscience and that locking someone up for a “crime” I didn’t think was moral would be a big violation.

        She really seemed to have a problem with the idea that a citizen wouldn’t take the oath she demanded of them and then follow that over their own moral compass.

        Got released pretty soon after that exchange.

    2. You’ll likely get tossed off the jury.

    3. When I was researching this topic before my stint of jury duty, the answer was that in some places you would be technically breaking the law if you voted to acquit based on your belief that the law was immoral.

      However, if you just voted to acquit and didn’t spout off about how you did so as part of your own jury nullification, you would be fine and dandy.

      You don’t owe anyone an answer as to why you voted the way you did. So feel free to vote your conscience. Just keep your yap shut in some jurisdictions.

      1. You do not have to explain your vote.

  5. Here’s the difference between jurors nullifying the law and judges doing so: Jurors are *honest.* Judges pretend that they’re simply interpreting the law they’re distorting.

    And if we equate nullification with jurors interpreting the law (as judges tend to do), then the U.S. Supreme Court unanimously endorsed nullification in 1793:

    “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court…”

    http://www.law.cornell.edu/supremecourt/text/3/1

    The NH Supreme Court has just suggested that the U.S. Supreme Court may have acted unconstitutionally!

    1. Of course, the U.S. Supremes changed their mind in 1895, by a divided vote.

  6. Good. Jury nullification is anti-democratic. I didn’t elect those 12 people. They don’t speak for me.

    1. I’m just relieved those anti-democratic nullifiers didn’t have your worthless brain in their skulls when they had to rule on fugitive slaves and broken liquor laws during prohibition.

      1. A nation of laws except when I don’t like the laws. The attitude of a poorly parented four year old.

        1. You would have made a good Nazi camp guard.

          1. Hey there Nerfherder, those guys were just enforcing the law.

          2. What good is an immoral or draconian law if 12 chuckleheads can say, “actually, we’re gonna let him go”?

            1. My favorite part is where he equates letting someone go as slavery.

        2. Law is not the final arbiter of morality or ethics- humanity is.

        3. hahaha fuck you, you facist.

        4. Another straw man. And an ad hominem. Maybe if you ever get past basic spelling you can have someone explain logic to you.

        5. Give it up, dude.
          You will never convince these libertarians that the anarchy of allowing juries to decide the “fairness” of a law is a bad thing.
          Anarchy is just what libertarians want because they can’t get even close to a majority to side with them.

  7. Thank God they did this. And it is sad that the issue was ever contested such that such an idiotic law was passed.

    All “nullification” is is a jury deciding that they don’t think the defendant should be punished even if they are guilty. It is the jury stepping in and fixing an injustice. This is especially important because the traditional mechanisms for doing justice are so broken. It used to be the sovereign you routinely commute sentences that were deemed to harsh. That doesn’t happen anymore. In addition, rather than just having minimum sentences for a few of the most serious crimes, treason, rape and murder, we now have enormous minimum sentences for even the most trivial crimes. So the only way left to do justice in an unjust case is for the jury to just refuse to convict.

    Juries have always had this right and it is essential to a properly functioning justice system. This is especially true given the complete breakdown of the other checks on the system. Juries are the last check left.

    1. Silly me. I misread this as a good decision. Like that ever happens.

      Juries should be told that they are free to do justice. They should convict if the evidence warrants it and justice demands it but should not do so without both conditions being satisfied.

    2. Juries are the last check left.

      It is no surprise that we hear now and again how the jury system should be eliminated for various reasons. The real reason is to end the last check on government power.

      1. “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”- Thomas Jefferson.

  8. “Were [the law] interpreted to grant juries the right to judge or nullify the law, there would be a significant question as to its constitutionality…”

    Let me get this straight — a group of people elected by the people to interpret laws says that the very people who elected them are unqualified to nullify a law, yet they, the elected, are?

    1. Of course they are still pissing in the wind. The jury can do anything it damn well pleases. If they chose to acquit, no judge can over rule them. All this decision does is keep lawyers from explicitly telling them that is their right.

      This is where Libertarians can actually accomplish something besides getting bakeries who won’t serve gay weddings sued. They need to go out and educate the public at large about their powers as jurors so that it doesn’t have to be told to them in court.

      1. That may be true that the judges cannot ultimately overrule a jury’s decision; however, we should keep judges like these as far away from the bench as possible.

        Jefferson’s fear that the judiciary would become tyrants has proven to be true. If you don’t believe that, just look at the local rules of federal courts and how federal judges behave.

        1. That too. Most of the judges in this country are a disgrace. For every decent fair minded judge, there are nine or ten total, incompetent, government hacks.

          1. What do you call a lawyer with a 2-digit IQ?

            Your Honor!

      2. They need to go out and educate the public at large about their powers as jurors so that it doesn’t have to be told to them in court.

        Which would be easier to do if the government wasn’t fond of arresting people for doing so anywhere near a court house.

  9. “Were [the law] interpreted to grant juries the right to judge or nullify the law, there would be a significant question as to its constitutionality…”

    Let me get this straight — a group of people elected by the people to interpret laws says that the very people who elected them are unqualified to nullify a law, yet they, the elected, are?

    1. Reason posted it twice because it’s that good.

    2. You have a problem with being ruled?

  10. If activist jurors want to make laws, they should run for Congress.

    1. Nullify does not mean ‘make’. Nullify means that jurors collectively decide a particular law is so egregiously unfair they cannot morally rule in favor of it.

      1. It can even be just the application of that law in certain circumstances, rather than hating the law altogether.

        Judgment based on specific circumstances, rather than cookie-cutter application of general laws no matter what is part of why we have a jury in the first place.

  11. What do we need juries for, then? Why not just use a computer?

    Yes.

    If- accused

    Then- convict

    Perfect!

    1. I AM THE LAW. YOU HAVE BEEN JUDGED.

  12. OK, let’s assume for the sake of discussion that jurors have no inherent power to quote-unquote nullify laws. That’s too much of a concession, but work with me here.

    At the very least, the legislature can delegate that power to juries, as admitted by the state constitution:

    “The power of suspending the laws, or the execution of them, ought never to be exercised but by the legislature, or by authority derived therefrom, to be exercised in such particular cases only as the legislature shall expressly provide for.”

    http://www.nh.gov/constitution/billofrights.html

    So at the bare minimum, the legislature can grant juries the power of suspending the laws, even if they don’t have that power already.

    But there’s supposed to be a constitutional problem with reading this statute literally?

    1. It affects the constitution of the justices. It weakens them. There’s your problem.

    2. OK, let’s assume for the sake of discussion that jurors have no inherent power to quote-unquote nullify laws.

      While that is theoretically true, in practice it is not. If a jury wants to nullify a law and choose to acquit a guilty defendant, there is nothing the government can do to overturn that result. Double jeopardy will attach and the government will not be able to retry the defendant, even if the jury says they are doing it because they are nullifying the law not because the defendant was innocent.

      1. I said to assume for the purpose of discussion.

        And it’s not enough to say that a jury can *get away* with nullifying. By the same token, a criminal who doesn’t get caught within the statute of limitation *gets away* with the crime, but that doesn’t make his actions legal.

        I believe the jury has the *right* to at least judge the law, and maybe even to outright nullify (different concepts) – not just that they can get away with doing it.

        1. I think it is enough. All that matters is that the jury and all citizens understand that they are free to act according to their consciences, law be damned.

          Moreover, we could use a lot more of that kind of thinking inside and outside of jury rooms.

          1. Many jurors are highly conscientious, trying to do the right thing, but not knowing how the system works. So they look to the guy in the robe to tell them what they should do.

            That’s the reality.

            So like the US Supremes in the Brailsford case, the judge should inform juries of their prerogatives.

            1. Yes. But that doesn’t always have to be the reality. It is only the reality because civil libertarians have failed to educate people so they know better.

              1. Alas, while we’re waiting for the public to be educated up to proper standards, people are going to be dragged into court in unjust prosecutions.

                And a large number of conscientious jurors, intimidated by the system and their awesome duties, will rely on the guy with the gavel to clarify their role.

                And those who believe jurors don’t have to obey the judge will be screened out (unless they lie).

                So it would be helpful in practice for judges to encourage jurors to exercise their responsibilities.

                1. Sure it would. But that is unlikely to happen. And ultimately if people lack the courage to stand up to a judge, they probably won’t listen anyway.

                  1. Pass a law providing for imprisonment and impeachment of judges to violate juror prerogatives. That will make judges listen.

                    1. *who* violate

    3. This seems accurate to me. Even if juries did not possess this authority inherently, the NH Constitution certainly seems to grant the NH Legislature the authority to grant it to them. “or by authority derived therefrom, to be exercised in such particular cases only as the legislature shall expressly provide for” seems pretty clear on the matter.

  13. So it’s been consistently found in US courts that jury nullification is de facto permissible but defense lawyers can’t remind juries of that. (Lawyers are ethically bound to uphold the letter of the law.) Jury nullification is a noble tradition but it presents a conundrum. Everyone else involved in a trial are officers of the court and bound by law, so they can’t advocate for it, and it would seem logical to dismiss potential jurors if they expressed favor toward nullification. I guess citizens need to get themselves educated. I wouldn’t mind seeing a rash of jury nullification on drug convictions. My jury experience suggests that citizens are not going to do this, as they mostly have yet to figure out how to fasten velcro shoes. Clear instructions from the judge with little wiggle room might be the only thing standing between a modicum of justice in this country and total chaos.

    1. It happens. You just don’t hear about it. When it does happen it tends to be in drug cases in cities against black dependents. It is surprisingly difficult to get a black jury to convict a black defendant of a drug case. This is one of the reasons why prosecutors try so hard to get guilty pleas. Their record in big cities in those cases is not as good as they lead people to believe.

      Again though, this is where Libertarians can do some good. The more people are educated and convinced of the need for it, the more it will happen.

    2. “I wouldn’t mind seeing a rash of jury nullification on drug convictions.”

      Ditto. American drug laws are abhorrent, unethical, and an outright state-sponsored assault on humanity.

    3. something we can agree on.

    4. Re: Tony,

      I guess citizens need to get themselves educated.

      Get a few people educated in Jury Nullification, and then the Southern Poverty Law Center will put you on their list of hate groups.

  14. “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.”

    So, *at the very least,* this should mean the defense lawyer should be able to say: “Ladies and gentlemen of the jury, do you want to apply this law so as to expose a person to a prison sentence, take away his right to bear arms, disenfranchise him, endanger his employment prospects, all because of a plant the grows in the dirt? Before doing this, consider that it might be done to *you* some day!”

  15. Smells like Tulpa.

    1. I think he’s wearing several socks today.

    2. Has to be. He always had a big thing against jury nullification.

  16. What the fuck !?

    Just last night jury nullification was a plot point in How to Get Away with Murder. Portrayed in a a bad way as the defense attorney’s associate plants a nullification essay where a juror will find it. When the angry judge questions the jurors about their obviously wrong verdict, the woman juror confesses that she brought the issue into the deliberations, consternation ensues, and the judge has “no choice” but to declare a mistrial.

    And I explained to my wife that here in New Hampshire, we have a law that explicitly allows defense attorneys to tell juries about nullification. And this morning I see this article…what the actual fuck. I get that prime time TV is 3 hours a night of propaganda…but New Hampshire..come on.

    Footnote: the case in last nights show was an abusive cop killed by his stepson…so the courtroom was packed with police, naturally.

  17. To clarify some of what I said above, I distinguish between jurors *interpreting* the law with jurors *nullifying* the law. Judges conflate these two concepts because both are equally threatening to judicial authority.

    But since jurors give a general verdict, not a verdict limited to the facts, then (as courts used to recognize) the jury *must* consider not only the facts, but what the law means.

    If we want to take away the juries’ law-judging power, the only way to do it is to force them to render special verdicts – “we find that the defendant possessed such and such an amount of marijuana and such a place and at such a time.” Then the judge would decide whether that’s a crime.

    But part of the history of liberty is the establishment of the jury’s right to give a general verdict – guilty or not guilty – regardless of what the judge wants. It would be perjury to say “guilty” when all they mean is “the facts are against the defendant but we have no comment on the law.”

  18. I love that judges think they can tell me to rule against my conscience.

    I mean, I may have to do that, but that’s up to me.

  19. I already posted on this about 4 years ago:
    here

  20. ITT, Tulpa throws a hissy fit and makes an idiot of himself as usual.

    To be clear, NH juries can still nullify right? The Defense is just less able to inform them?

    1. That’s how it looks. It’s a disappointing decision, but certainly not a declaration that nullification is illegal.

      1. Zeb it matters not what these psychopathic faggots in black dresses say or rule.

        You and I are the sovereigns and as such we have all rights. These guys are just lowly employees that by all rights should be hung for treason.

        You giving them creedance is the real problem here.

        1. What makes you think I am giving anyone credence? I’m just commenting on what the court said.

          Don’t worry, if I find myself on a jury I will follow my conscience over the law. And I will follow the law only as far as it is convenient for me.

  21. You can not gut a right. The people are still the sovereigns just like they are in every state. A bunch of psychopaths in black dresses can not change that fact.

    However I would like to see the definition of treason defined as trampling of the peoples inalienable rights so that we could hang judges like this.

  22. “It is well established that jury nullification is neither a right of the defendant nor a defense recognized by law,”

    Chief Justice John Jay begs to differ.

    And which one do you think Im gonna pay attention to?

  23. This is disgusting.
    They worked so freekin hard to get this law passed, in extremely clear terms, and the NH S.Ct. eviscerates it?

    I don’t even understand who the litigant was who sought to overturn it. It is law, and it should be defended by the state attorney, and no defendant is going to try to overturn it. Was it sua sponte?

    This HAS to be appealed to the U.S. Supreme Court. A clear unambiguous statute should not be undermined by judicial activism.

    Gary T

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