Note: The following article has been abbreviated here. Please read the entire article at its original source, <Here>
By SHAWNE K. WICKHAM * New Hampshire Sunday News
Criminal defense attorneys predict New Hampshire jurors routinely will be told they have the right to find someone innocent even if the state proves its case because New Hampshire has passed what appears to be the nation’s first “jury nullification” law.
Earlier this month, a Belknap County Superior Court jury found a Barnstead man innocent of felony drug charges after the judge instructed jurors they could decide that acquittal was “a fair result,” even if the state had met the burden of proof.
It’s a legal concept known as jury nullification, a power that experts say has resided in the U.S. Constitution since the nation began but is rarely applied in modern courtrooms.
And it’s the basis for a new state law that permits the defense in all criminal cases “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”
Chuck Temple is a professor at the University of New Hampshire School of Law, where he is director of the criminal practice clinic. In his 27 years of practice, he said, he has always asked judges to instruct juries about nullification — but has never had a judge do so.
Temple said the new law, which takes effect Jan. 1, “changes the landscape of how criminal cases will be argued.”
Before, he said, “in the vast majority of criminal cases, there would be no arguments regarding jury nullification. … Now, it’s going to be an everyday occurrence in criminal jury trials.”
The language of the new law is “rather inartful,” never actually mentioning nullification, Temple said. Still, he expects defense lawyers will start telling jurors about it right away; he plans to raise it in a trial set to start Monday in Merrimack County Superior Court.
“I wouldn’t be doing my job if I didn’t,” he said. “It’s just another seed I can plant in their minds in terms of what the fair thing to do is in a criminal case.”
Attorney Mark Sisti, who represented the defendant in the Belknap County case, said the verdict was “an example of just how powerful jury nullification really is.”
With the new law, Sisti said, he expects to see other acquittals come through jury nullification, in marijuana possession and statutory rape cases, for instance. And, he said, “I can envision scenarios even in murder cases….”
Judges have always had the discretion to give a jury nullification instructions, Sisti noted; “It’s just that they have not done that.”
Under the New Hampshire Bar Association’s Criminal Jury Instruction guidelines, here’s what judges may instruct jurors: “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.”
Jury nullification is “a historical prerogative of the jury,” but that “does not mean that a jury must be informed by the judge of that power,” the guidelines note. Such instruction is “best given only when it is requested by a defendant or when the nature of a particular case otherwise warrants it.”
As of the new year, however, defense attorneys here can bring it up themselves. “It’s a good tool, and it’s been a long time coming,” Sisti said.
(snip) Please read entire article <here>
Additional background reading on subject of jury nullification:
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