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Bar News - January 18, 2013

Opinion: Jury Nullification: New Law Sparks Intense Debate: A Prosecutorial Concern


Jury Nullification: New Law Sparks Intense Debate

The prospect of jury nullification – a jury’s decision to acquit a defendant despite proof beyond a reasonable doubt of his or her guilt – is always a concern in a criminal prosecution. In every criminal case, the court instructs the jurors that regardless of any opinion they may have as to what the law ought to be, the law as the court explains it is the law they must follow in reaching their verdict. Nonetheless, prosecutors know there is always the possibility that the jury might choose not to accept the law and instead act according to personal beliefs.

After an acquittal, it is not uncommon for a prosecutor to hear from jurors that they did not believe the charged conduct should be criminalized, or that the circumstances did not warrant the defendant being saddled with a criminal conviction. If a jury chooses not to follow the law and to acquit a defendant on that basis, there is no recourse. The constitutional prohibition against double jeopardy precludes a retrial.

This prerogative to nullify is referenced in the standard criminal instruction on proof beyond a reasonable doubt, called the Wentworth charge. That instruction, which must be given in every criminal case in New Hampshire, informs the jury that if they find that the state has failed to prove its case beyond a reasonable doubt, the jury must find the defendant not guilty, but if the State has proven its case, the jury should find the defendant guilty. That language is often a central theme in the defense’s closing argument.

Recently, however, there has been a growing movement in New Hampshire and elsewhere to mandate that courts affirmatively tell jurors that they have a right to judge not only the facts, but also the applicable law. In other words, jurors would be encouraged to question the propriety of the laws that the judge has told them are applicable to the case. In New Hampshire, followers of this so-called "informed jury" movement have brought forward legislation 10 times over the past two decades. On each occasion, the legislation was rejected for sound public policy reasons.

The NH Legislature, not a jury, is responsible for establishing the law. Like all New Hampshire statutes, each statute defining a criminal act is the end result of an extensive process – a full public hearing and debate before elected members in each legislative body, passage by a majority vote of each body, and a review by the governor. And, once passed, there is a common understanding that the law will apply equally to all. A significant amount of time and money is expended with the ultimate goal of enacting laws that reflect the will of the majority of our citizens. Why, then, would the Legislature want to negate that process by encouraging individual jurors to decide whether he or she agrees with a particular law, or whether a law should apply in a particular circumstance?

Adoption of a law such as that previously proposed would likely change the complexion of criminal prosecutions. If jurors are given the responsibility to judge the law, then prosecutors will need to consider presenting evidence to justify the law. Undoubtedly, few would question the rationale for criminalizing certain acts, such as murder, forcible sexual assault, or theft. But in a prosecution for driving after certification as a habitual offender or for the sale of pounds of marijuana, for example – criminal acts about which there is much public debate – a prosecutor may feel the need to offer testimony from legislators to explain why such conduct has been deemed criminal. At present, there would be no reason to incorporate that type of evidence into a prosecution, and if a prosecutor tried, it would likely be deemed irrelevant and inadmissible. But its relevance would certainly be heightened if jurors were told they had the right to judge the law. In a similar vein, if jurors are told to judge whether a law should be applied in particular circumstances, then they should be fully informed of the relevant circumstances. Yet, evidentiary rules and constitutional protections often prevent a jury from hearing evidence that places a defendant’s conduct in context. For example, a defendant might be charged with stalking for driving by the victim’s home in violation of a protective order. That conduct, viewed in isolation, might appear to some jurors as innocuous and not warranting a criminal conviction, even though the state proved it beyond a reasonable doubt. However, the nature of the defendant’s act would likely be viewed quite differently if the jurors understood that the protective order was issued because the defendant had made a series of threatening phone calls or left threatening notes in the weeks prior.

The presumption of innocence, the right to remain silent, and the state’s burden to prove the elements of the crime beyond a reasonable doubt are fundamental to our system of criminal justice. Jurors are repeatedly instructed on those concepts during the course of a trial. If jurors are told they have the inherent right to judge, and thus potentially disregard the law, however, it leaves those concepts open to juror rejection as well.

For all these reasons, the Legislature has consistently declined to mandate a jury nullification instruction. However, during the last session, the proponents of that instruction were successful in pushing through legislation, enacted as 2012 Chapter 243, which requires a court to "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." The law went into effect Jan. 1, 2013. The language appears to be an acknowledgement that the defense may argue nullification to the jury. But the debate about its meaning has already begun.

Given the history, we can expect that another version of "informed jury" legislation to be brought forward again during this biennium. It is neither a necessary nor an advisable component of our criminal justice system and should be quickly rejected.

Ann Rice is the deputy attorney general at the New Hampshire Department of Justice.

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