CONCORD, N.H. (May 16, 2016) – A New Hampshire bill requiring courts to inform juries of their right to vote “not guilty” when “a guilty verdict will yield an unjust result” was killed by the state Senate.

House Bill 1270 (HB1270) originally passed in the House but died in the Senate on a voice vote last week.

A coalition of nine representatives, led by Rep. Daniel Itse, introduced the bill in January. The legislation would have amended current law on jury nullification and require the court to explain that right to the jury upon request of the defense.

State law, RSA 519:23-a, currently reads, “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.”

HB1270 would have amended this section to read, in part, “In all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

“It’s an important distinction to require the court to inform the jury instead of having the defense do so,” said Michael Boldin of the Tenth Amendment Center. “When it comes from an ‘official’ source like this, it becomes more likely that a juror will consider this option.”

In a proceeding upon request the defense, the court would have been required to inform the jury of their options, guilty, not guilty, and jury nullification. The exact statement from the court would have ncluded, “Even if you find 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.”


Juries have the power to nullify a law in an individual case by finding the defendant not guilty, even when he clearly violated the law in question. The jury can use its discretion to determine that the law itself is unjust, immoral, or unconstitutional, and refuse to convict.

The New Hampshire case of Doug Darrell demonstrates how jury nullification works in practice. Police arrested Darrell and charged him with felony cultivating marijuana. He claimed he used marijuana for religious and medical purposes. Although he was clearly guilty by the letter of the law, the jury refused to convict.

Thomas Jefferson 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.”

Jury nullification provides a mechanism for the people to invalidate unjust laws. But most jurors don’t realize they have this power and courts rarely inform them of this option.

TJ Martinell

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