Cato’s Tim Lynch runs down the history of jury nullification, then argues that while the new New Hampshire law isn’t perfect, it is a good start.
This is definitely a step forward for advocates of jury trial. Allowing counsel to speak directly to the jury about this subject is something that is not allowed in all the courthouses outside of New Hampshire–so, again, this is good. I am concerned, however, that this language does not go far enough. We don’t know how much pressure trial judges will exert on defense counsel. As noted above, if the attorney’s argument is “too strenuous,” the judge may reprimand the attorney in some way or deliver his own strenuous instruction about how the jurors must ultimately accept the law as described by the court, not the defense. I’m also afraid what the jurors hear will too often depend on the particular judge and, then, what that judge wants to do in a particular case.
It’s great that there was enough support in the legislature to move on this bill and for the governor to sign it. However, some of that support, I fear, may be because of a wink and nod that “nothing is really going to change–so go ahead and support the measure.” I hope I’m wrong about that. Continued vigilance will be necessary in New Hampshire.
The reform that I favor is a law that would require . . . [an] instruction to be delivered by the trial court–upon the request of the defense.
Here’s the language Lynch would use, which is one that was once used in some state courts:
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.
While researching my book, I’ve been reading up on the early criminal justice system in America. I knew nullification was common practice in the early courts, but I’ve been surprised to learn that not only was it common, it was expected. That is, for much of America’s early history, it was just assumed that juries would nullify bad laws—or unjust application of good laws—and that assumption was built into the way the courts operated. Acquittal rates were also much higher than they are today. Surprisingly, this is true even of slaves tried for crimes in southern courts. (Whether a slave accused of a crime was lucky enough to get a day in court is another matter.)
Of course, the country is much different now. But it has changed in ways that make the doctrine of jury nullification more important. We have a much more complicated, vague, and confusing criminal code now. A huge percentage the felonies prosecuted today are for consensual crimes. Conspiracy, racketeering, and money laundering laws enable prosecutors to take multiple bites from the same apple, from multiple angles. That improves the odds of winning a conviction on something. And that of course gives them another tool—the power to pile on charges in order to force a plea agreement. Which means that in 90+ percent of the felony convictions in America today, the government never needs to bother proving its case.
Jury nullification more important than its ever been. And the power is still there. There’s little a judge can do about a jury that returns an acquittal based on their assessment of the justness of the law, rather than the facts of the case before them. But as regular readers of this site are well aware by now, prosecutors and judges screen any prospective juror who has even heard of the term.
Even if states don’t want to pass a law as proactive as New Hampshire’s, a law forbidding questioning prospective jurors about nullification—or at least forbidding their removal because they know of or support the idea—would be a good start.
It’s good that lawmakers are at least thinking about this issue, though. I hope we see more laws like the one New Hampshire.
For more on the issue, pick up the excellent book by Clay Conrad.