New Hampshire’s Innovative Take on Jury Nullification

            While most people argue whether jury nullification should be allowed at all, the New Hampshire legislature has decided that juries can be explicitly informed of their ability to nullify the law. In 2012, the Governor of New Hampshire signed into law HB 146, which took effect in 2013. This new law allows defense counsel in criminal trials to inform jurors of their right to nullify the law.

            Even though HB 146 was an unprecedented move, the New Hampshire legislature is now considering moving toward an even stronger position on jury nullification. In January of 2014, the New Hampshire legislature introduced HB 1452, which requires the judge to instruct the jury about jury nullification, instead of the defense counsel being the one who argues to the jury that they can nullify the law, and allows for a mistrial if the jury is not so instructed. The pattern jury instruction reads as follows:

The concept of jury nullification is well established in this country. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

            HB 1452 has not been signed into law, and its future is uncertain. But, considering New Hampshire’s willingness to pass HB 146, it is very possible that judges in New Hampshire may soon be instructing jurors in all criminal juries about their power to nullify the law.

            The newly enacted law and proposed new law in New Hampshire gives rise to the question of whether New Hampshire juries will use their power responsibly. All criminal juries have the power to nullify, but because most jurors are unaware of their ability to nullify, they often do not use their power even when they would have liked to do so. New Hampshire is an important test ground for jury nullification because never before has a judge instructed jurors about their power to nullify the law as judges in New Hampshire may soon be instructing jurors in criminal cases.

            Because HB 1452 is still only a possibility, and HB 146 is so new, there is little data on how juries in New Hampshire have reacted to their knowledge about their ability to nullify the law. To date, the highest profile case to raise any issue about the new juror nullification law is the appeal by Rich Paul, a marijuana activist convicted of selling drugs in 2013.

            Rich Paul chose to have his defense counsel argue for jury nullification in his trial for drug dealing. After building the central theme of his case around his defense counsel arguing for jury nullification, the trial judge refused to instruct the jurors on their right to decide the case however they felt was right. There was clear proof that Paul had violated the law and consequently Paul was convicted. He is currently appealing his conviction and has appealed all the way to the New Hampshire Supreme Court because he believes that judges should instruct the jury about nullification if his counsel can inform the jury that it may do so. Paul argues that there is little value to his counsel being able to argue for jury nullification if the judge will not instruct the jurors that they may do so. After all, the jury is always able to nullify, that is to ignore, the arguments made by a defense counsel, simply by choosing to disbelieve whatever the defense counsel may say. However, if a judge instructs the jury that a defense counsel’s argument for jury nullification is valid under the law, then the jury will be much more inclined to buy into jury nullification. There has not yet been a final ruling in Paul’s case.

Even though the lack of a judge’s instruction would not have been an issue in Paul’s case had HB 1452 been signed into law at the time, Paul’s case does provide us with an example of a jury possibly being unwilling to nullify the law unless the judge instructs that the jury that it may do so, If the New Hampshire legislature passes HB 1452, the results of this innovative law will be intensely scrutinized by many state legislatures which may be considering similar laws.