CONCORD, N.H. (Dec. 10, 2015) – Two bills prefiled in the New Hampshire State House for 2016 would require state courts to fully inform jurors of their right to nullify.
House Bill 1270 (HB1270) and House Bill 1333 (HB1333) would require courts to “provide jurors with information regarding the authority of the position of juror.”
HB1270 would require state courts to instruct jurors as follows:
“The test you must use is this: 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. If you find that the law does not apply to the proven facts of the case, you must find the defendant not guilty. However, if you find, that the state has proved all of the elements of the offense charged beyond a reasonable doubt, but you find that based upon the facts of this case a guilty verdict will yield an unjust result, you may find the defendant not guilty.”
HB1333 has a similar intent to HB1270, but contains more in-depth instructions for state courts to instruct jurors including:
Until the 1800s, judges told the jurors of their right to refuse to enforce any law… When jurors refused to enforce the 1850 Fugitive Slave Law, judges dismissed them. Today, judges dismiss anyone who believes people own and have the right to manage their own bodies. Corrupt politicians keep making slavery laws that take away your right to own and manage your body. Judges and lawyers complain that jurors “undermine the rule of law and the uniformity of justice,” when jurors veto bad laws. Jurors always have the right to refuse to enforce bad laws…
Police, prosecutors, and judges all use personal discretion about any law, charges, and sentencing. Jurors have exactly the same power of personal discretion about any law. If the law violates any human rights, you must vote no against that law by voting “not guilty.” You cannot be punished for your verdict, and no one can make you give a reason…
Government teachers won’t teach you this in school, but a jury has more authority than Congress, the President, or even the Supreme Court. Judges say the law is for them to decide. That is not true. When you are a juror, you have the right to decide both law and fact. American jurors have a proud tradition of saying “no” and “not guilty” when bad and corrupt laws are used against people. You can protect yourself and friends and family by refusing to enforce bad laws. In our system of checks and balances, you, the juror, are the final judge of the law and justice.
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, when the law itself is 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.
An prominent 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.
As this case shows, it doesn’t matter what law the feds pass and enforce. If there are jurors who are willing to nullify, their vote has more power in a court trial than all the power of the state and federal government.
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.”
The reason most Americans don’t know about this right is because, not surprisingly, they aren’t taught about it at any public education institution, nor are they informed about it when given jury instructions in court. 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 ruled that the court is not legally bound to inform them about it.
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.
HB1333 and HB1270 have both been assigned to the House Judiciary committee, where an “ought to pass” recommendation will greatly influence the chance of passage in the full House.