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Bar News - January 18, 2013


Nullification: When Jurors Are More Than Fact-Finders

Jury Nullification: New Law Sparks Intense Debate

The state’s jury nullification statute, which went into effect Jan. 1, has sparked not only disputes over the precise mandate of the law’s language, but also philosophical discussions about the juror’s role in the legal system.

The statute refers to the de facto power of juries to find a defendant not guilty, even when the state has proved guilt beyond a reasonable doubt. This power stems from the prohibition against punishing jurors for their verdicts and the principle of double jeopardy, which prohibits retrial after acquittal.

This month, NH Bar News features two perspectives on the new law, which appears to be the first of its kind in the nation. New Hampshire Deputy Attorney General Ann Rice and veteran defense attorney Mark Sisti have laid out their positions on the issue in two opinion pieces on page 4.

Sisti and co-author Jared Bedrick argue that jury nullification is a historical prerogative of juries that is essential to their ability to "do the right thing" in deciding some criminal cases. Rice maintains that encouraging nullification negates the legislative system of debating and passing laws that apply to everyone.

The new law, while not mentioning jury nullification by name, states: "that 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 relationship to the facts in controversy."

The law is almost sure to be the subject of future litigation in New Hampshire. In the meantime, "jury nullification" is a phrase that is about to become a lot more common in the state’s criminal courtrooms.


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