New Hampshire passes jury nullification law

by Walter Olson on July 27, 2012

It’s a fairly mild enactment as these things go, but any hint that juries are free to acquit a defendant to avoid injustice is deeply controversial in establishment legal circles [Tim Lynch/Cato Institute, Radley Balko, Reason]

{ 4 comments }

1 Black Death 07.27.12 at 10:29 am

From the Constitution of the State of Maryland:

Art. 23. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.

….

Do other states have similar provisions? How does this play out in practice? Seems to me it would be difficult for a judge to prohibit a lawyer from quoting verbatim from the state’s constitution.

2 David Smith 07.27.12 at 2:33 pm

Has anyone besides me noticed: The people FOR Jury Nullification consists of commoners and lawyers. The side AGAINST Jury Nullification is only lawyers.

3 Rick DUnn 07.27.12 at 5:36 pm

Hell. The government picks and choose what laws it wants to follow and/or enforce. Why not juries?

4 Anonymous Attorney 07.30.12 at 3:26 pm

I’m sure there are noble applications of jury nullification.

But to spur discussion here, I’ll just throw out my fear that jury nullification in America today would have more to do with a slide into anarchy and lawlessness than it would the chastening of government.

Tread carefully here. In the criminal context, you’re only ever charged with a crime the elected legislature has approved. So the people have had a chance to speak. Why allow dissenters to enjoy a individualized veto? If you think drunk driving shouldn’t be illegal, don’t serve on the jury.

Nullification could open up unfairnesses. An all-black jury acquits a black man accused of dealing drugs because “too many black men are in jail.” But it goes ahead and convicts a white one. Or an all-white jury acquits a white drug dealer because he’s a clean-cut college grad and they identify with him better, but they nail the black one.

Fair?

I just don’t think there are too many juries out there that hesitate to toss cases they don’t like — even if they are proven. Stoking them with an additional instruction on it seems to invite the complete undoing of legal order.

If the issue has to be faced, the judge should say:

“The issue of jury nullifcation has come up. That term means that a jury finds a defendant ‘not guilty’ even if the case is proved because they feel that is the fair result, regardless of the law. We do not allow jury nullification in State X. If your conscience prevents you from serving on this jury, you will not be forced to do so if I am satisfied that your objection is genuine and not merely an attempt to avoid your civic duty. Your task as a sworn jury will be to decide whether the defendant committed the crimes alleged or not. That is all.”

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