The state legislature now gives New Hampshire judges new instructions to pass on to jurors.
New Hampshire judges are now required to inform juries of the true scope of their authority. New Hampshire Public Radio reports that judges must add to their jury instructions the following statement:
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.
What the legislature has done is mandate that judges tell their juries about “jury nullification.”
Jury nullification occurs when a jury finds that the prosecution has proven the facts of the case but that the law itself is wrong. Juries are very limited because their powers only extend to a single case. But within that case the jury not only has the authority to judge whether or not the accused committed the deed but also whether the law is moral and just. Juries are, thus, a check against tyranny.
The power of jury nullification was inherent in the very concept of a jury trial going back to the Magna Carta in 1215. As the nineteenth-century lawyer, Lysander Spooner, argued in great detail, the point of having a right to be tried by a jury of one’s peers was always intended to protect people from both false accusations and unjust laws.
You can read more about Lysander Spooner at the Fully Informed Jury Association’s website, from which I got the above image and quotation.
You would think that, in our system, defense attorneys would make sure that juries knew about their full powers. The problem is that judges typically censor them. New Hampshire Public Radio interviewed Buzz Scherr, a professor at UNH School of Law about this issue. The reporter asked,
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.
While there are risks, our legal heritage, which has been used to preserve our liberties, should not be ignored. New Hampshire judges will now be telling juries the truth. That is a good thing.
Juries once refused to convict people accused of rescuing slaves and giving them their freedom. I look forward to the day a jury refuses to punish someone for not buying Obamacare insurance.