February 26, 2011
Jury Nullification
The New Hampshire Supreme Court and United States Supreme Court have long recognized jury nullification as the undisputed power of the jury to acquit, even if its verdict is contrary to the law. State of New Hampshire v. Bonacorsi, 139 N.H. 28, 31-2 (1994).
If the jury feels that the application of the law under which the defendant is accused is unjust, the jury has the power to acquit, and we all must abide by that decision. Id.
This “undisputed power” will not be presented to the jury with the kind of clarity or conviction that state and federal courts use in legal opinions after the jury has already made its decision. Jury nullification has remained a well-kept secret in courtrooms and judges/prosecutors would be very happy to keep it that way.
The word “should” is the code used to unlock the “historical prerogative of the jury and power that must exist as long as we adhere to the general verdict in criminal cases…” United States v. Dougherty, 473 F.2d 1113, 1130-33 (D.C.Cir.1972), and United States v. Moylan, 417 F.2d 1002, 1006 (4th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970).
The courts have decided that a single word “provides the equivalent of a jury nullification instruction.” State v. Wentworth 118 N.H. 832, 838-39, 395 A.2d 858, 862-63 (1978). The word “should” is a signal to the jury that they need not return a verdict of guilty if that verdict would not be the right thing to do under the circumstances.
Here is the instruction that contains the word:
“If you decide that the State has not proved all of the elements of the crime
charged beyond a reasonable doubt, then you must find the defendant not
guilty. If, however, you decide that the State has proved all of the elements
of the crime charged, then you should find the defendant guilty.”
“[T]he effect of ‘should’ in the charge provide[s] the equivalent of a jury nullification instruction that even if the jurors found that the State proved beyond a reasonable doubt all the elements of the offense charged, they could still acquit the defendant.” State v. Brown, 132 N.H. 520, 527, 567 A.2d 544 (1989).
In this text, the relevant portions are bolded and underlined. In practice, however, the jury has been listening to lawyers who are often confusing, intentionally or not, for days before they are instructed on the law of the case. The judge then begins to read a document containing carefully parsed legal definitions and explanations line by line through many pages (16-20 pages in a typical possession of marijuana case) and uses the word should in most of the paragraphs. It is this single use of the word “should”, in contrast to the word “must” in the previous sentence, that courts consider to be a jury instruction in and of itself.
The government is uncomfortable with the concept of jury nullification. If juries know of their power to review government action, and in that review they find the government action to be unjust, then it is the court and the prosecution who have been judged as the offenders when the jury returns their nullification verdict. That is why juries are notified of their “historical prerogative” and “undisputed power” by only a single word buried near the end of a lengthy recitation of legal concepts.
If you are thinking about relying on jury nullification, you may need counsel. Give us a call for a free initial consultation (603) 589-8015 or visit our website at sweeneylawgroupllc.com
