Jury Nullification law passed in New Hampshire

New Hampshire has signed into law a statute that essentially allows the defense to inform the jury of their right to nullify the law in light of the facts of any particular case:

519:23-a Right of Accused. 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.

Prior New Hampshire case law had left it in the Court’s discretion as to whether to instruct the jury on jury nullification or not (my guess is that did not happen very often if ever).  Government lawyers and most judges are quite hostile to the idea of jury nullification, and there is an open debate in many states as to how far defense counsel can go in arguing for jury nullification – I think that most prohibit an express argument for a jury nullification verdict, but there are many variations on the argument, many of which, based on the facts of a particular case, a defendant is constitutionally entitled to.

A D.C. Bar ethics opinion on jury nullification arguments gives one common example:

Indeed, we can imagine situations in which it “may be possible for a defense lawyer to satisfy [the effective assistance requirement through] a reasonable strategy of seeking jury nullification when no valid or practicable defense exists.” United States v. Sams, 104 F.3d 1407, 1996 WL 739013 at *2 (D.C. Cir. 1996). Because a “criminal defense lawyer may take any step required or permitted by the constitutional guarantee of the effective assistance of counsel,” Restatement of the Law Governing Lawyers, § 110, comment f, it is unlikely that any such step for which a reasonable evidentiary basis exists will be deemed to violate the Rules of Professional Conduct.

Thus, to consider a final hypothetical, imagine a situation in which the court rejects a defendant’s pre-trial challenge to a police search as a violation of the Fourth Amendment. Given that definitive ruling it is unlikely that a lawyer could argue that the jury should acquit the defendant because the scope of the search was excessive and that a not guilty verdict would send a message to the police to stop using such aggressive, impermissible tactics. Conversely, if the evidentiary predicate for the argument were laid, it might be appropriate for the lawyer to argue that the police’s violation of departmental procedures designed to limit the scope and extent of a search were a basis for questioning the credibility of their testimony and the evidence gathered as a result of such violations. Although the distinction between the two arguments is, perhaps, a fine one, it is a distinction with substantial significance under the Rules.

The Court may prohibit defense counsel from asking the jury to “nullify” the law, but counsel can and should argue bias and credibility of witnesses.  If the conduct of the officers is such that they should not be believed, that can warrant an acquittal – an acquittal that is a form of jury nullification but one that the defendant is entitled to regardless of that state’s laws or ethics rules on nullification.

Tim Lynch, writing for CATO at the National Police Misconduct Reporting Project, suggests that New Hampshire’s law does not go far enough, and that every court in the nation should be giving the following instruction – which is an actual jury instruction that was given in America’s courts at one time:

Trial Judge to the Jury:

It is presumed that juries are the best judges of fact. Accordingly, you are the sole judges of true facts in the case.

I think it requires no explanation, however, that judges are presumed to be the best judges of the law. Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.

The order in which the instructions are given is no indication of their relative importance. You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.

These principles are intended to help you in reaching a fair result in this case. You should give them due respect. Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have seen proven. You should do just that if, by doing so, you can do justice in this case.

Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances. Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.

Exercise your judgment without passion or prejudice, but with honesty and understanding. Give respectful regard to my statements of the law for what help they may be in arriving at a conscientious determination of justice in this case. That is your highest duty as a public body and as officers of this court.

New Hampshire’s law does not require any instruction by the judge – it requires only that the court allow a defense lawyer to argue a form of nullification to the jury.  If the attorney is arguing one thing to jurors, however, and the judge is stating something different, the right to argue nullification is meaningless.  The attorney is asking the jurors for something the judge says they cannot give to him or her.



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