They are serious about “Live Free or Die”in the Granite State. A buddy of mine just bought a house there and I’m sure he will appreciate the following “leave me alone” news.
The New Hampshire House passed a bill that would make it the first state in the nation to require courts to inform juries of their right to vote not guilty when the verdict would produce an unjust result. This right, which all juries possess but may not be aware of, is called jury nullification. The bill is now awaiting approval in the Senate.
Yes, all juries in the United States possess the right and authority to nullify a law as it affects a particular defendant via a not guilty vote. Think of it as a vote of conscious. Here’s an example from a case that really happened. An underaged, teenage girl took some naughty selfies and sent them to a friend. Kids do stupid things like that. Governments do worse. The state where she lived (actually happened in multiple places) charged her with manufacturing and distributing child pornography – pictures of herself. The government even acknowledged her as both the suspect and the victim. This is near the absolute height of stupidity. A conviction would put such an innocent (if silly) girl on the sex offender registry, which is supposed to protect innocent (even silly) people from real predators. Supposed to. Really, it’s just another state scheme for power.
If such a stupid case ever made it to a jury, the jury could (regardless of the technicalities of the law) return a verdict of “not guilty” as a guilt verdict (even if correct under the law and by the facts) would be an injustice to the young girl – the victim also, remember.
The Free Thought story goes on:
Even if government has proved that someone is guilty under its law, a jury can let the person go free if it disagrees with the law and the punishment. This is one of the few ways in which citizens have power within the system to counter the irrational tendencies of centralized bureaucracy.
New Hampshire currently allows 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.” However, the House bill would have judges explain this right to juries which, according to the Tenth Amendment Center, makes it “more likely that a juror will consider this option.”
Judges would be required to make the following statement:
“Even if you find the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case, a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”
If the New Hampshire bill makes it through the Senate and past the governor, it will be an historic moment in the American justice system. The current legal system is hostile to the idea of jury nullification, with judges threatening “secret juries” and police defying injunctions by removing activists.
However, in past times, jury nullification was viewed as a primary and necessary function of juries. As the Cato Institute points out:
“You can’t find references to “jury nullification” around the time of the American Revolution. That’s because it was considered to be part and parcel of what a jury trial was all about. If jurors thought the government was treating someone unjustly, they could acquit and restore that person’s liberty. Jury trials were celebrated–and explicit provisions were put into the Constitution so that the government could not take them away.”
Perhaps New Hampshire can remind the nation that we are not bound by the dictates of government, and we still have the power to protect our fellow citizens from state-sanctioned injustice.
Openly hostile is putting it mildly. A few states indirectly dance around the issue. For instance, the Georgia Constitution expressly says juries are the judges of the facts and the law. However, in reality in the Peach State – as in most jurisdictions, the judge declares himself the arbiter of what the law is and how the law applies to a given case. Judges give “charges” on the law to a jury at the conclusion of evidence and arguments. Some, most charges are “pattern” and are given preemptively by the judge right out of a handbook (complied by other judges in conference). The parties can make special suggestions. But, in no case, will it be permitted to tell the jury they can find a defendant not guilty because they disagree with the law.
Judges put people in jail for contempt and even jury tampering for even trying to get the word out about nullification. That’s hostility in an attempt to preserve power. As CATO points out, this is part of the traditional system for juries. Not just in America and England but all the way back to Athens and Rome. The violent prevention of nullification knowledge is just another part of the near-terminal decline of the trial by jury.
New Hampshire is often in the vanguard of freedom fighting in the U.S.A. Let’s hope the Senate and Governor feel as strongly about decent legal tradition as the House did.
I did a little follow-up research and discovered that the Senate did not follow through. Instead, on or around May 5th they let the Bill (HB 1270) die a procedural death. Very noble of them. Perhaps more than a few members will suffer a similar electoral fate come November. Anyway, there’s always next session. Live free or nullify.