The New Hampshire House has passed a bill that would require courts to instruct jurors of the option of jury nullification. That’s when a jury can return a verdict of not guilty if the jurors believe a guilty verdict would be unjust. Juries in New Hampshire already have the right to jury nullification, though it’s rarely used.
Joining All Things Considered for a look at jury nullification is Buzz Scherr. He’s a professor at UNH School of Law.
Can you give us an example of how jury nullification has been used in New Hampshire?
Yeah. There’s a recent case in which somebody was raising marijuana for personal use and perhaps medicinal purposes, and was charged with possession with intent to sell, I believe. And his lawyer argued to the jury, yes he has done all the prosecution has charged him with, but this is an incorrect, wrong, and unjust application of this law, and I’m asking you to acquit him nonetheless. And that’s really a jury nullification argument. And the jury acquitted him.
So, he was technically guilty…
He had done everything that the prosecution had accused him of doing, but the jury just said no.
Yeah, his defense lawyers said to the jury effectively the prosecution has proven all the elements of the crime he’s charged with, and so you can find him guilty, but I’m asking you not to because it would be an unjust result.
So, defense attorneys in New Hampshire have the right to tell juries that they can return a verdict of not guilty, even if the defendant is technically guilty. So, why, instead of this law, don’t defense attorneys just make more noise about jury nullification if they want to?
The way in which defense lawyers can talk about it before juries is pretty limited. There’s a—let me a step back a second and give some context— when judges are telling the jury what the law is they must apply to the case, they’re defining really important terms. And when they tell the jury what the meaning of beyond a reasonable doubt is and how they go about their decision making, they’re required by the New Hampshire Supreme Court to use a particular body of language in that definition so that all judges are consistent in what they do. It’s called the Wentworth instruction, it’s named after a particular case, State v. Wentworth. And, in relevant part, that instruction says “If you find, members of the jury, that the prosecution has not proven all the elements of its case beyond a reasonable doubt,” which is their obligation, “you must find the defendant not guilty.”
Must find them not guilty?
Correct… “If you find that the prosecution has proven all the elements of the crime the defendant is charged with beyond a reasonable doubt, you should find them not guilty.” Should, rather than must. Buried in that one word, should, that is what defense attorneys work with in saying you don’t have to if you don’t want to even if they’ve proven the case beyond a reasonable doubt. But the judge is not obligated, and actually the New Hampshire Supreme Court has made it clear, they don’t want judges going beyond giving that language to the jury in talking about jury nullification.
So, the change that the legislature has passed essentially adds language and amplifies the word should. They say, “However, if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, but you find that based upon the facts of this case the guilty verdict will yield an unjust result, you may find the defendant not guilty.”
That’s much more expansive language, number one, and the judge is required to give that, number two. So, that is a bigger window through which the defense lawyer can enter a discussion with the jury in closing argument about jury nullification.
Why do you think the state Supreme Court would be opposed to making the idea of jury nullification more prominent and clear?
Well, the Supreme Court is, their obligation is to uphold the law, and jury nullification is this, you’re begging the jury to delightfully and annoyingly issue a rogue verdict. To say, even though the law says we’re supposed to find this guy guilt, we should find him guilty, we’re not gonna do it. So, I think as an institution that supports the law as it is, it is not inclined to encourage rogue verdicts. They want juries, and I think we all in most cases want juries to follow the law. Once we have juries that are doing whatever the heck they want to do, if that’s going on too broadly, it’s a little troubling. By the same token, it’s really important to have this safety valve, and that’s called jury nullification. And that’s really the balance that has always been at play in thinking about jury nullification for the last, you know, getting on 300 years.
How do other states handle the issue of jury nullification?
Yes, is the right answer to that. [Laughs...] There are so many variations on how other states handle it that that’s really the only useful piece of information that I can give you.
Lots of variation, okay. So, if this law passes the Senate and is signed into law, what would the effect be of having judges or courts explain more explicitly to juries what jury nullification is and that this option is at their disposal?
The cute conservative lawyer answer to that is that we shall see. It certainly begs jurors to more directly confront what is without the intermediate static and knowledge that is the definition that the law provides them with. Sometimes it’s incredibly valuable knowledge, sometimes it feels like static in between doing the case and doing the just thing. So, it begs the jury in a more direct and immediate way, and the judges doing this, to think about the just outcome in the case. So, undoubtedly there will be more juries that find somebody not guilty based on it otherwise would be an unjust outcome if they found them not guilty. But, time to get a new lawyer if your lawyer is telling you we’re going to win this case based on that.