A jury is probably the most democratic form of a decision making body that exists in the United States. A group of randomly selected citizens from voting lists and driver’s licenses will form a jury in NH to decide the fate of a fellow citizen.  This group decides if a crime has been committed and neither the executive branch (police and prosecutors) nor the judiciary (judges) are able to force them to make a finding.

These 12 jurors will hear evidence and vote directly on whether a person is guilty or not guilty based on the evidence presented and their moral conscience.  NH is unique in that the legislature has passed a law which allows defense lawyers to explain jury nullification.   RSA 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.

NH has implicitly allowed for jury nullification and courts have long given an instruction which is referred to as a Wentworth instruction, where a judge tells the jury the following:

“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 of the elements of the offense charged beyond a
reasonable doubt, you should find the defendant guilty.
State v. Wentworth, 118 N.H. 832, 839 (1978).”

In 2014, the NH Supreme Court largely attempted to gut the power of defense lawyers from making jury nullification arguments.  The court ruled that the defense may argue for nullification but that the court is not required to give any instruction regarding nullification.  State v. Paul.  In that case the NH Supreme Court ruled:

“that RSA 519:23-a represents simply a codification of
pre-existing law regarding the function of the jury in criminal cases, we briefly
summarize that law. It is well established that jury nullification is neither a
right of the defendant nor a defense recognized by law. State v. Sanchez, 152
N.H. 625, 629 (2005). Rather, jury nullification is the undisputed power of the
jury to acquit, even if its verdict is contrary to the law as given by the judge
and contrary to the evidence. Id.; see also State v. Mayo, 125 N.H. 200, 203
(1984) (recognizing jury nullification to be “an historical prerogative of the jury”
(quotation omitted)). The trial court ordinarily gives the Wentworth instruction,
which is the equivalent of a jury nullification instruction. Sanchez, 152 N.H. at
629. The defendant is not entitled to a more specific jury nullification
instruction, and the decision to give such an instruction, when requested, lies
within the sound discretion of the trial court depending on the facts of a
particular case. State v. Bonacorsi, 139 N.H. 28, 31 (1994); State v. Brown,
132 N.H. 520, 527 (1989). Here, the court gave the Wentworth instruction,
and, as discussed above, nothing in RSA 519:23-a required the court to do
anything more.

In conclusion, although RSA 519:23-a requires the trial court to allow
the defendant “to inform the jury of its right to judge the facts and the
application of the law in relation to the facts in controversy,” it does not require
the court to allow the defendant to inform the jury that it has the right to judge
the law or the right to ignore the law. In other words, it is not a jury
nullification statute. Further, it is of no moment that the court’s instructions
may have contravened or undermined the defendant’s jury nullification
argument because the statute gave the defendant no right to make such an

Jury nullification has a long history in the United States, which includes famous cases involving sedition, slavery and prohibition.  Increasingly courts have attempted to restrict this awesome power to acquit by restricting or denying the right to even inform a juror of this power.

Recently the NH House has passed a bill that would require courts to provide a jury nullification instruction.  This bill is headed to the senate and governor.  If this bill became law, it seems very likely that the NH Supreme Court will be asked to determine if jury nullification is constitutional.  The future of jury nullification is uncertain.

I had a jury trial this past week where I argued for jury nullification because the police had enforced a law in a draconian manner against any sense of normal enforcement.  I don’t know if the jury decided my client was not guilty based on nullification, but having the power to explain it is essential to putting check on police powers.

All jury deliberations are secret so I may never know the reasoning of the jury, but having the ability to tell a jury to do the right thing is very powerful and in the right case, essential.  I know that my client and I felt empowered by arguing jury nullification.  The fact that the jury took less than 20 minutes to vote not guilty may have had everything or nothing to do with nullification.  However, being able to inform the jury about their power to vote their conscience even if you they believe the state has proven each element provides another level of protection for american citizens accused of committing a crime.  In my opinion, it is important that a jury be given the knowledge that even when a law may be broken there exists a way to reign in strict enforcement that would be immoral.

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