Bill to Require Fully Informed Juries Introduced in New Hampshire

PROVIDENCE, N.H. (Nov. 21, 2017) – A bill pre-filed in the New Hampshire House would require courts to fully inform juries of their right to vote “not guilty” when “a guilty verdict will yield an unjust result.”

A coalition of eight representatives pre-filed House Bill 1443 (HB1443) for the 2018 legislative session. The legislation would amend the current jury instruction law and require the court to explain to the jury it has the right to acquit if they believe a guilty verdict would be unjust.

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.”

If passed into law, HB1443 would amend this section to read:

“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, unless your right of conscience dictates that the facts of the case reveal that a guilty verdict will yield an unjust sentence; accordingly you shall find the defendant not guilty.”

If passed, HB1443 would help ensure New Hampshire juries understand the discretion they have the right to exercise in a trial.

“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.”

Last year, the state House passed a similar bill, HB1270, by a vote of 184-145. But, it was ultimately killed by the Senate.

JURY NULLIFICATION OVERVIEW

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. If HB1270 passes, defendants will have the opportunity to ensure they face a fully-informed jury.

WHAT’S NEXT

HB1443 was referred to the House Judiciary Committee. The 2018 New Hampshire legislative session will begin Jan. 3.

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