Civil Liberties

Jury Nullification Law Gutted by New Hampshire Supreme Court


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