With all the buzz and anticipation surrounding the final rulings by the U.S. Supreme Court the past week, there has been little attention to an interesting legal development in New Hampshire: On June 18, Governor John Lynch (no relation) signed HB 146 into law and it becomes effective on January 1, 2013. HB 146 concerns “the right of a jury to judge the application of the law in relationship to the facts in controversy.” It’s popularly known as “the jury nullification bill.” In this post, I will try to explain what impact this new law may have in the New Hampshire courts.
By way of background, Cato co-published the most comprehensive book on this subject back in 1998, Jury Nullification: The Evolution of a Doctrine by Clay Conrad. So pick that up if you’re interested in the full legal and historical treatment. If you’re not ready for the book, do check out this book review by University of Tennessee law professor Glenn Reynolds.
For purposes of this post, I am going to sidestep the question of whether or not jury nullification is a good idea. My purpose is not to “make the case for HB 146.” Rather, my purpose is to briefly explain what jury nullification is, provide a very brief history of the law on that subject, and, finally, explain how the recently enacted statute in New Hampshire may alter existing law and practices there.
To begin, the American Revolutionaries thought juries were an important check on the power of government. Thomas Jefferson said, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.” The denial of the right to trial by jury was among the grievances enumerated in the Declaration of Independence. So it shouldn’t surprise that, to guard against future oppression, the jury trial procedure is explicitly set forth in the American Bill of Rights. During this period, no one spoke of “jury nullification” and that’s because that concept (no one gets convicted unless all the jurors, in good conscience, agree with the outcome) was viewed as part and parcel of what a jury trial was all about. Here’s John Adams, “It is not only [the juror's] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (emphasis added). That idea–that juries can render verdicts according to conscience–became very unpopular in legal circles as the years passed.
Government officials around the country are very hostile to independent verdicts from juries and so employ several methods to exercise more control. First, plea bargaining powers are used to get persons accused of crimes to “waive” their right to a jury trial. Second, defense attorneys are typically instructed not to mention ‘jury nullification’ in the courtoom–lest the trial judge hold him/her in contempt and declare a mistrial. Third, the court will tell the jurors that “their job” is to find the facts (for example, which witnesses do you believe?), but it is the “job of the court” to decide the law and the jury must accept the law as explained to them by the judge, whatever their own view of that law might be. Prosecutors are so determined to drill this state-of-affairs into people’s heads that they actually arrested an elderly man who was distributing pamphlets outside a courthouse in New York City. Needless to say, Jefferson and Adams would be utterly astounded by all this.
In any event, whatever may be the law in other jurisdictions around the country, there has been a concerted effort in New Hampshire to shift power back to jurors. Before proceeding further, an important thing to grasp about exisiting law around the country is that the power of the jury to vote according to its conscience–even contrary to the law as explained by the court–is admitted by nearly everyone. The catch is that the government tries really, really hard to discourage that from happening. (Yes, the jury can do it (it = bring in a ‘not guilty’ verdict no matter what the judge says) but let’s try to keep them in the dark!)
In State v. Bonacorsi, 648 A.2d 469 (1994), the Supreme Court of New Hampshire considered the tension between the power of the trial judge and the right of the accused to his trial by jury. The defendant asked the judge to give a jury nullification instruction. The judge denied the request and said that would be “entirely inappropriate.” The judge did allow something that most courts outside New Hampshire would never allow–he ruled that it would be okay for the defendant’s lawyer to advise the jury of its nullification power. The judge did caution that lawyer not to be ”too strenuous” about that matter, or else the judge would have to remind the jurors that they have to take the law from the court, not the attorneys. And the judge later did just that, saying, “You [jurors] are to follow the court’s instructions.”
Later on, during its deliberations, the jury requested a clarification from the judge on all this stuff. The defendant jumped at this development, and insisted that the court now had to inform the jury of its nullification prerogative–otherwise it would be left with the misleading impression that the prerogative did not exist, and that they’d be acting improperly if they were to vote according to their conscience. The trial judge refused–and simply referred the jury to his earlier instructions. When the jury convicted the defendant, he filed an appeal asking the Supreme Court of New Hampshire to review the actions of the trial judge and declare them improper, and to order a new trial. The state supreme court rejected that argument and affirmed what the trial court did. Here’s an excerpt:
We have recognized jury nullification as ‘the undisputed power of the jury to acquit, even if its verdict is contrary to law as given by the judge and contrary to the evidence’ … While recognizing the prerogative, we have nonetheless consistently held that jury nullification is neither a right of the defendant, nor a defense recognized by law. … Accordingly, a defendant is not invariably entitled to a jury nullification instruction. Rather, it is within the sound discretion of the trial court to determine if the facts of a particular case warrant a jury nullification instruction when it has been requested by a party. (emphasis added)
In other words, the trial judge will decide whether or not he/she will inform the jurors that they may act contrary to the court’s instructions. Hmm.
Another unfortunate trend in the New Hampshire case law has been the following stance by the courts: We did give the jury a nullification instruction — so there is no merit to any complaint that the jury was not properly informed!! This is the so-called “Wentworth instruction,” which the New Hampshire courts have deemed the “equivalent of a jury nullification instruction.” See State v. Sanchez, 883 A.2d 292 (2005). The Wentworth instruction is a very lame and indirect instruction that hinges on the word “should.” The trial judge tells the jury something like, “If the prosecution has met its legal burden, the jury should find the defendant guilty.” The New Hampshire Supreme Court says that since the word “should” is uttered, the jury is notified that even if the state has proved its case beyond a reasonable doubt, “they could still acquit the defendant.” The nullification prerogative is right there–in between the lines, says the court.
So let’s say I’m a lawyer in New Hampshire and my client has been using marijuana for medical reasons, to help her deal with the chemotherapy treatments that have taken away her appetite, resulting in a severe and unhealthy weight loss. The prosecutors say the case is open and shut–the cops found marijuana in her purse. Marijuana possession is illegal–no exceptions (let’s just assume this–the laws vary around the country). We want the jury to know about her medical condition and that they can vote according to their conscience. The prosecutors will say the medical condition is “irrelevant” and is therefore inadmissible as evidence. The judge might “approve” a nullification instruction–but all that means is that he’ll say, “if the prosecutors proved she had marijuana in her purse, you should return a guilty verdict.” Most, if not all, of the jurors are going to think they have no choice–that they’d be doing something improper if they were to vote ‘not guilty’ in such circumstances. And the New Hampshire courts want the jurors to be left with that impression. (If anyone thinks the hypothetical case above is fanciful, please check out State v. Hokanson, 672 A.2d 714 (1996)).
Now, at last, we come to the law recently enacted by the New Hampshire legislature and signed by Governor John Lynch. Here is the language of the new law:
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.
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 the following instruction to be delivered by the trial court–upon the request of the defense:
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.
That, in my view, is the instruction that any person facing criminal charges in America should get, upon request. (It’s an actual instruction that was once used in state courts, see Clay Conrad book, above, pp. 122-123). The prosecutor can make the government’s case and then the jury can decide. That’s what a jury trial is supposed to be about.