What About New Hampshire? 

Dispelling a Common Misunderstanding about
Arguing for Jury Nullification in New Hampshire Courts

6 September 2021

New Hampshire judges are not, as some people think, required to instruct jurors on jury nullification, nor are they required to allow the defense to do so.

by Kirsten C. Tynan

 

This is a companion piece for Tom Stahl's lengthy review of State Language on Jury Nullification in state constitutions, also available on the FIJA website, intended to address the big question people have had since 2012 that is not addressed in that review:

What about New Hampshire?

New Hampshire is not particularly noteworthy as far as references to jury nullification in its state constitution, which is what is covered in Stahl's review. New Hampshire IS, however, noteworthy for having enacted statutory law in 2012 that is on its face—and was widely understood to be at the time it was passed—a jury nullification statute.

The New Hampshire Supreme Court, however, nullified that statute in a unanimous ruling not long after it took effect. Though the statute remains on the books in New Hampshire, it is about as useful now in practice as if it were not there at all.

If you believe I'm in error on this point, feel free to email me at aji@fija.org with documentation of any cases since the New Hampshire Supreme Court ruling that you believe have successfully invoked this statute.

Somehow, even the better part of a decade later, news of the New Hampshire Supreme Court ruling and its nullifying effect on this law does not seem to have reached everyone. Time and time again, people speak of the statute as if it is still in effect and still being used. In the week I am writing this, that happened to me three times:

• Someone made the claim in a conversation on Clubhouse. I corrected the speaker, explaining what I am about to detail in this article. Then after all those details, the speaker restated the same myth again afterward.
• I heard it less than a minute into a video someone posted as a comment on Facebook to a Jury Rights Day talk I gave, in which I explicitly explained how this myth is untrue.
• Then yet again as I was researching some of the details I'll share below, I found the law mentioned in a book written by a law professor and published in 2020—yet with zero mention whatsoever that the law had been overturned.

In this write-up, I will give an overview of the rise and unfortunate fall of that statute and dispel the two most common myths I hear about it:

1. that this statute requires the judge in a criminal trial to instruct jurors about jury nullification, and
2. that it gives New Hampshire defendants an advantage in court today by allowing them to argue jury nullification directly to the jury.

 

New Hampshire's Jury Nullification Statute
Back in 2012, New Hampshire passed a very watered down jury nullification law. HB 146 provided that:

"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."

I say this was a watered down version of a jury nullification law for several reasons.

First, the language codifying the right to judge "the application of" the law weakened it substantially. Arguably, this was a major factor in opening the door for the New Hampshire Supreme Court's ruling ultimately killing this law.

Second, the text of the law did not require the judge to present any specific instruction to the jury. It did not bar judges from presenting contradictory instructions or other statements that undercut accurate jury nullification information presented to the jury by defense attorneys.

Third, the statute was notably missing any specified way to enforce that it be carried out properly. No penalty is specified for judges if they fail to allow this or undermine it with contradictory instructions to the jury. No relief is provided for the accused if judges undercut their defense in this manner. Nothing whatsoever was specified in this to ensure that judges would not simply ignore or undermine the law.

Understandably, it would have been far more difficult—perhaps impossible—to pass such a statute with all of these important provisions intact. But without them, the law was quickly rendered inert. Nonetheless, this was what was codified in New Hampshire state law as RSA 519:23-a and remains so at the time of this writing. 

I know of precisely one case where it was used successfully to acquit someone on drug charges. It's actually a little bit of a stretch to say that case used the law successfully because technically the law was not in force at the time. Rather, HB 146 was signed into law on 18 June 2012, with an effective date of 1 January 2013. The first case I know of in which it can sort of be said this law was used, though, took place in September of 2012, before the law had formally taken effect.

Also, as previously mentioned, it specifies nothing about what a judge must or should instruct jurors on the matter. However, an apparently fairly reasonable judge of his own accord not only allowed the defense to argue jury nullification, but went so far as to instruct jurors in the cannabis case of Doug Darrell that:

"even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case."

While this was not required by law, it is hard to imagine that the judge would have gone in this direction absent of the legal environment that passage of this law set up for a time. In recognition of that, I think it is fair to say that this law was successfully used in this case, despite it not actually being in effect at the time of the trial.

 

New Hampshire Supreme Court Nullifies the Statute
The second and only other case I know of where it was used, however, ended badly in a conviction and a creative New Hampshire ruling that the statute in question was not actually a jury nullification statute after all.

In that case, New Hampshire resident Rich Paul was prosecuted over five victimless drug charges, mostly related to cannabis. In April of 2013, with the statute recently having taken effect, the defense argued in its closing statement to the jury that they should nullify. The prosecution in its closing statement acknowledged the jury's right to nullify, but argued they shouldn't exercise that right.

In the first, successful case, the judge had accurately instructed the jury about jury nullification. In Paul's case, however, the judge followed the closing statements by the defense and prosecution with extremely misleading instructions to the jury that seemed to contradict the statements made during closing arguments. These statements included that (.pdf):

"You should follow the law as I explain it regardless of any opinion you may have as to what the law ought to be."

"If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty."

and

"If the lawyers state the law differently from the law as I explain it to you, then you must follow my instructions and ignore the statements of the lawyers.”

According to the New Hampshire Supreme Court, the defense objected to the first two statements but not to the third. It's not clear that it would have mattered, however, given the final ruling.

The defense appealed the convictions based on two grounds: that the judge declined to give the defense's requested jury instruction, and that the judge undercut the defense's jury nullification argument with contradictory instructions to the jury.

The entire Court concurred in its ruling siding with the judge, clearly stating that the statute was not actually a jury nullification statute and that defendant has no right to argue jury nullification to the jury (.pdf):

"In conclusion, although RSA 519:23-a requires the trial court to allow the defendant “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy,” it does not require the court to allow the defendant to inform the jury that it has the right to judge the law or the right to ignore the law. In other words, it is not a jury nullification statute. Further, it is of no moment that the court’s instructions may have contravened or undermined the defendant’s jury nullification argument because the statute gave the defendant no right to make such an argument."

In other words, this law, though still on the books, has essentially been gutted from the originally intended function as a jury nullification statute to a now ornamental extra bit of verbal clutter.

To the best of my knowledge, nothing has changed the situation since. Here is a list of all proposed jury nullification-related bills that I have been able to turn up in New Hampshire through a Legiscan search for "jury OR juror" since 2012 and their fates:

• 2013—no bill introduced
• 2014—HB 1452 failed in the House 
• 2015—HB 246 failed in the House, HB 470 failed in the House
• 2016—HB 1270 failed in the House, HB1333 failed in the House
• 2017—HB 133 failed in the Senate
• 2018—HB1443 failed in the Senate
• 2019—no bill introduced
• 2020—no bill introduced
• 2021—no bill introduced

If there is someone thinks my list is either:

• missing a more current law than what was implemented in 2013 or
• that a more recent case has overturned the New Hampshire Supreme Court ruling I discussed

such that it is now possible for a defendant either to force a judge to give an accurate jury nullification instruction to the jury or requires that the defense be allowed to make a jury nullification argument to the jury directly, please email me at aji@fija.org.

If you're talking about a law, please provide the citation for the specific section where it appears in the New Hampshire Revised Statutes,  If you believe there case law that supersedes this ruling, please provide the case name, docket number, the date of the ruling, and which court issued the ruling. As things stand, I am pretty sure no such things exist, as I check into jury-related legislation and cases nationwide pretty regularly. 

 

FIJA Carries the Torch That Courts Want to Extinguish
To the best of my knowledge, the situation as far as bringing jury nullification arguments into the courtroom is now basically the same in New Hampshire as in any other state. In other words, it is primarily at the discretion of trial judges whether to allow this or not. 

I know of no advantage New Hampshire has over any other state in this regard at this point. Several states arguably have at least a weak advantage over New Hampshire because they at least have verbiage written into their state constitutions in one way or another that jurors can "determine" or "judge" the law as well as the facts in cases before them.

If jurors in New Hampshire are to learn of their full authority as jurors and be prepared to exercise it to deliver just verdicts, they will—as jurors must virtually everywhere across the country—have to find out about it OUTSIDE of the courthouse.

This is precisely why the Fully Informed Jury Association exists. We provide accurate, documented information that jurors may confidently learn from and rely on when they are called to protect their communities by delivering truly just verdicts.