A bill prefiled in the New Hampshire State House for 2017 would require state courts to fully inform jurors of their right to nullify.
House Bill 133 (HB133) would require courts to “inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” An unusually short and concise bill by modern standards, it reads, in part:
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.”
HB133 is an important piece of legislation, as it would bring to light the indispensable right of last resort for regular people sitting in the jury box to stand up against laws that violate their rights.
WHAT IS JURY NULLIFICATION?
Jury nullification is the ability to declare someone not guilty in a case, even when it is clear he has violated the law in question. Juries use this power to defend people against laws that are unjust, immoral, or unconstitutional.
This power is one of the most untapped, unknown, and powerful of any at the disposal of ordinary people to stand up to tyranny. In New Hampshire, it is known as the “Wentworth instruction, stemming from a case known as State v. Wentworth in which the defendant challenged the jury instructions on what constituted reasonable doubt.
The first Chief Justice, John Jay, stated the following to the first jury in Georgia v. Brailsford, the first Supreme Court trial held in the United States:
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 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; for, as on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable that the courts are the best judges of law. But still, both objects are lawfully within your power of decision.
Thomas Jefferson also defended jury nullification, writing that “if the question relates to any point of public liberty, or if it be one of those in which the judges may be suspected of bias, the jury undertake to decide both law and fact. If they be mistaken, a decision against right, which is casual only, is less dangerous to the State, and less afflicting to the loser, than one which makes part of a regular and uniform system.”
In the 1969 case of United States v. Moylan, the Supreme Court yet again acknowledged the “undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence.”
Jury nullification played a noble role in combating federal slavery laws prior to the Civil War, as northern juries regularly refused to convict individuals for violations of the 1850 Fugitive Slave Act. In one instance, a large crowd broke into a Boston courtroom and rescued a runaway slave. When the government indicted three of those involved, an acquittal and a series of hung juries forced the government to drop the charges.
A recent example of jury nullification occurred in New Hampshire when Doug Darrell was arrested and charged with felonies for cultivating marijuana for religious and medical purposes. If convicted, he would have likely faced many years in prison. He was guilty by the letter of the law, but the jury decided to acquit him anyway.
While the Supreme Court admitted in Sparf v. U.S. that juries have the right to ignore a judge’s instructions in regard to law, they also held that the court is not legally bound to inform them about it.
HB133 would change that in New Hampshire.
Last year, the full house passed a similar bill by a 184-145 margin, but the bill was ultimately killed in the Senate. HB133 will first be assigned to a House committee, where an “ought to pass” recommendation will greatly influence the chance of passage in the full House.
Additional reporting by TJ Martinell and Shane Trejo