There is a very interesting debate going on in New Hampshire regarding Jury Nullification.

It’s not a topic you hear every day, and it has nothing to do with personal injury law, but I want to give you some basics so you’ll know what’s going on.

Jury nullification is when a jury is instructed by the judge it can disregard the law, and acquit a defendant charged with a crime, even if the defendant violated the law.

Here’s the problem:

In normal circumstances, a jury hears a case, determines the facts, and is instructed by the trial judge to follow the law as s/he gives it to them before rendering a verdict.

The jury is the sole trier of the facts of a case; it finds out what happened.

The judge then tells them the law; s/he’s the expert there.

The jury then makes a decision based on the facts and the law.

That’s how it goes most of the time. It’s text-book legal procedure.

How does jury nullification change things?

Jury nullification is different; the jury becomes the finder of fact and the law– judge & jury, really.

Interestingly, many people believe it has always been (as a practical matter) within the power of the jury to decide whatever it pleases. For them, jury nullification is no big deal.

These folks point to early colonial history where it is part of our jurisprudence, and nothing radical at all.

Obviously the jury nullification instruction is something only defense lawyers want because it is potentially a big advantage to criminal defendants.

It does not, in any way, benefit prosecutors.

It allows the jury to let a guilty person go free if it decides that is the best thing/ right thing to do.

It is never Constitutional to let the jury disregard the law to find a defendant guilty.

The push these days seems to be spear-headed by folks who are against the drug laws, particularly marijuana. They are convinced that like-minded jurors will refuse to convict people charged with drug-related crimes, if they are given the chance.

They might be right, especially since a prosecutor needs unanimity among the jurors to obtain a conviction. If one juror holds out, then there is no conviction.

Opponents of jury nullification, on the other hand, argue that everybody is required to follow the law, including jurors, and nobody has the power to re-write the law. It is the job of elected representatives to make the laws, which all are bound to follow.

There is an old story of a young man charged with a crime. After a trial in which the prosecution proved his guilt beyond any reasonable doubt, the jury found him not guilty. When the foreperson of the jury read the verdict, she pointed her finger at the defendant and said: “Not guilty & don’t you ever do it again!”

That’s jury nullification.

Maybe the jurors felt the guy deserved another bite at the apple, liked the fellow, didn’t like the charge the prosecution or whatever.

Jury nullification really has no role in civil cases. It’s been used in criminal cases where it is the state, the prosecution, the government versus the individual defendant.

I don’t know what will happen with the efforts to make jury nullification part of every criminal trial, but folks will be thinking and talking about Constitutional rights– and that is a good thing.

How do I feel about jury nullification?

For those of you who know me and/or read my blogs, you know that I do not shy away from expressing my opinions. I’ve never been a shrinking-violet, as they used to say.

But, I’m a bit undecided on this one right now, although I generally favor anything that gives the jury more power.

Then again, it is not important to have an opinion on everything, is it?

Keep your strength.

Charlie Donahue
Injury Lawyer
Keene, New Hampshire