NH Bar Association Article on Jury Nullification

As you may know, NH is the only state with a law affirming the right of a jury to nullify bad laws (thanks to Free State Project liberty legislators). Now the NH Bar Association’s Mark Sisti and Jared Bedrick weigh in with an opinion piece about the issue:

This past September, Judge James D. O’Neill, III of the Belknap County Superior Court instructed jurors that they could find the defendant not guilty, despite proof of guilt beyond a reasonable doubt, if they had “a conscientious feeling that a not-guilty verdict would be a fair result in [the] case.”

In that case, Barnstead resident and Rastafari practitioner Doug Darrell had taken the stand and admitted to each and every element of an indictment alleging that he knowingly manufactured marijuana at his home. The judge was essentially allowing the jury to base its decision on something other than law or logic – its concept of justice. This is known as “jury nullification,” and it’s the subject of a recent law and heated debate.

In Doug Darrell’s case, jury nullification became manifest in the form of a broader sense of the phrase “criminal intent.” The defense successfully argued that although Darrell had admitted to every element of the offense as alleged in the indictment, the jury should find him not guilty because he did not have criminal intent. Of course, practitioners would immediately think of criminal intent in the sense of the mens rea corresponding to that statutory offense – knowingly – as the State did. Instead, the defense attached the idea of “criminal intent” to the notion of a “just result.” Therefore, the battle was not over whether Darrell was legally culpable (he took the stand and admitted as much); rather, both the State and defense were ultimately forced to plead with the jury to “do the right thing.” This is the essence of jury nullification: Any jury has the power to do what’s right in any given case.

But the question remains: If any jury can nullify a charge, why do judges refuse to give a nullification instruction? It has been declared and affirmed time and again that the accused enjoy no right to a nullification instruction. However, in 1978, the Court in State v. Wentworth suggested that trial courts use a model charge stating that if the State has failed to meet its burden of proof, the jury “must” acquit the defendant, but if the State succeeds in proving its case beyond a reasonable doubt, the jury merely “should” return a verdict of guilty. In 1988, the Court stated in State v. Surette that the use of the words “must” and “should” in the Wentworth charge formed “the equivalent of a jury nullification instruction…”

However, in 2005, the New Hampshire Supreme Court made it clear that the law with respect to jury nullification remained unclear. In State v. Sanchez, the Court affirmed the trial court’s refusal to give a nullification instruction. In doing so, the Court reiterated that the Wentworth charge contains a nullification instruction, and that “the defendant [had] not demonstrated that anything in this case warranted a more specific nullification instruction.” This mirrored the reasoning in previous cases that were similarly of little help. The fundamental problem with the reasoning is that it begs the question: What circumstances warrant a “more specific” instruction?

One strains to concoct a set of facts more suitable for a jury nullification argument than those presented in the Doug Darrell case (non-violent person, personal crop, religious implications), yet the circumstances under which Judge O’Neill gave the instruction made little of the facts. Rather, the judge decided to issue the instruction because the defense and prosecution had each argued a different view of jury nullification. O’Neill’s instruction therefore had nothing to do with religion or criminal intent – he simply obeyed his command as the final arbiter of the law that the jury was to apply. Once again, the lesson that we divine from Doug Darrell’s case is that jury nullification is not a specific tool reserved for certain circumstances, such as unfavorable or draconian laws, harmless conduct, or religious freedom; it naturally flows from, and itself affirms, the jury’s singular mandate to “do the right thing.”

The new statute makes clear that the New Hampshire Legislature adopted this conceptualization of nullification. RSA 519:23-a reads simply: “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.”

On its face, this law only goes so far as to permit the defense attorney to argue for nullification. Considered in a vacuum, then, it would seem that the trial court retains the power to restrict the extent of an attorney’s argument and to refuse to issue a nullification instruction. However, in State v. Aubert, the New Hampshire Supreme Court announced that if the defense puts forth evidence to support a theory of defense, the trial court must issue an instruction concerning that theory. Thus, because the law grants defendants the right to present a nullification defense, it follows that courts may be bound to instruct the jury as to the law of nullification.

Jury nullification is not without its critics. There are those who believe that jurors will lie in order to grab a seat on a petit jury and nullify a charge. This concern is no different from the concern that a person harboring a racial prejudice would lie to get seated on a jury in order to influence a conviction against another on the basis of race. We have laws that punish those who seek to lie to state officials, and the judges in this state do a great job informing jury venires of the potential penalties for such irresponsible conduct. Therefore, those fearing this conduct should be comforted by this state’s ongoing efforts to deter their misdeeds and protect the sanctity of the deliberation room.

Others believe that this alters the role of juries. However, as far back as 1981, the Supreme Court of New Hampshire has recognized that “jury nullification is an historical prerogative of the jury.” In fact, it has been around longer than the American system of justice. The reason why its detractors have little trouble pointing to its novelty is because of a shift in vocabulary.

In the past, when a prosecutor proved a case beyond a reasonable doubt, but the jury failed to convict, it was unlikely to receive the “nullification” label. Instead, it’s more likely that the jury would have considered the result “the right thing to do.” Until recently, the term “nullification” had not been considered vogue. However, the simple fact remains that although future juries might have greater knowledge of their power to nullify a charge, the nature of a jury’s job has always been, and forever will be, to “do the right thing.”

Mark Sisti is the principal attorney at Sisti Law Offices and represented Doug Darrell.

Jared Bedrick is an associate at Sisti Law Offices and a graduate of the University of New Hampshire School of Law. His practice focuses on representing those accused of drug offenses in courts across New Hampshire.

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