New Hampshire Supreme Court Nullifies Jury Nullification Statute

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The Fully Informed Jury Association reports that the New Hampshire Supreme Court has ruled unanimously that New Hampshire's RSA 519:23-a, created by the passage of HB 146 in 2012, is not a jury nullification statute.

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This disappointing—albeit not surprising—ruling underscores the continued importance and relevance of our educational mission here at the Fully Informed Jury Association.

The New Hampshire Supreme Court today issued its ruling in the appeal of the case of The State of New Hampshire v. Rich Paul (case number 2013-426), largely nullifying the law as a jury nullification statute. The court writes in its unanimous ruling that: "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 2012, New Hampshire passed and signed into law HB 146, a fully informed jury bill, which guaranteed that the defense be allowed in court “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” The New Hampshire legislature made clear in the text of the bill its intent "to perpetuate and reiterate the rights of the jury, as ordained under common law and recognized in the American jurisprudence." The measure took effect on 1 January 2013 in New Hampshire's Revised Statutes as RSA 519:23-a.

"This disappointing—albeit not surprising—ruling underscores the continued importance and relevance of our educational mission here at the Fully Informed Jury Association," said Kirsten Tynan, executive director of the Fully Informed Jury Association (FIJA). "Government has proven itself throughout history to be reluctant at best, and more often downright hostile, to the notion of informing jurors accurately and completely about their long-standing authority to conscientiously acquit defendants when the law is unjust. Indeed, this is why FIJA exists. We, the people, must educate one another about rights of jurors that government wishes would be forgotten. The New Hampshire Supreme Court has chosen an interpretation of HB 146 that circumvents its spirit, but this ruling has done nothing to diminish the right of jury nullification that jurors in New Hampshire had prior to the passage of the statute and continue to hold still today. Our mission to educate everyone about that right continues to be quite relevant in New Hampshire as government officials obviously cannot be counted on to accomplish this," said Tynan.

After an early, successful use of this law by defendant Doug Darrell who was acquitted on victimless, marijuana-related charges, marijuana activist Rich Paul attempted to use this in his own defense in April 2013 when he stood trial over five victimless drug-related charges. Whereas the judge in the Darrell case, acting in accordance with the spirit of the law, issued jury instructions consistent with the statute, Judge Kissinger in Rich Paul's case declined to issue either of the suggested jury nullification instructions to the jury put forth by the defense or the prosecution. Instead, the judge instructed the jurors that they must follow the law as he explained it to them, even though they have the inherent right to set aside the law when a just verdict requires it and to conscientiously acquit the defendant, effectively circumventing the New Hampshire law intended to fully inform jurors of that right.

Even after passage of HB 146, jury nullification educators have continued to be active in the state of New Hampshire. In light of this ruling, they will continue their educational efforts to inform everyone throughout New Hampshire that:

  •     Jurors cannot be punished for their verdicts.
  •     Jurors have the right to deliver a general verdict and are not required to explain the reason for their verdict.
  •     Jurors have the legal authority and the ethical duty to consult their consciences and to render a just verdict, even if it requires setting aside the law to do so.

About the Fully Informed Jury Association
FIJA is a non-profit, educational organization dedicated to informing the public about their rights and responsibilities as jurors in delivering just verdicts. The organization publishes and distributes educational literature, organizes and assists volunteers in local outreach, offers educational programs, and maintains a web site at FIJA.org to inform the general public of their traditional, legal authority to protect human rights by refusing to enforce bad laws. FIJA encourages all jurors to consult their consciences when deliberating over a case and to refuse to enforce any law that violates human rights.

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Kirsten C. Tynan
@fija_aji
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