New Hampshire jurors recently won a round in the eternal battle over the scope of their powers, when that State’s Governor signed off on what the Cato Institute describes as a “jury nullification” statute. The words of Section 519:23-a are simple: “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.” While New Hampshire prosecutors will certainly press for a narrow construction, it is equally certain that in the eyes of criminal defense attorneys, Section 519:23-a gives them the right to argue to the Jury – expressly, rather than merely by implication – that even if the State has proven its case the Jury is not obliged to convict.
Although the new law does not officially go into effect until the New Year, at least one New Hampshire juror reports that “jury nullification” is already taking place. The defendant was charged with growing cannabis after his plants were spotted from “a military helicopter.” “‘There wasn’t any conflicting testimony, none. It’s pot; he grew it; he knew it,’” the Juror told an interviewer after the trial, “‘But not case closed.’” After a defense closing argument that, according to the interview, expressly invited the jury to acquit despite the evidence, the jury did just that, concluding that a conviction would, under the circumstances, be unjust.
Since the dawn of the jury system, strong forces have constantly battled to restrict the powers of the jury. In some eras jurors were even subject to fine or imprisonment for “false” verdicts. The battle will no doubt continue, but the latest round, in New Hampshire at least, went to the jurors.