(Adapted from a previous version posted Feb-2011)
The New Hampshire Senate will be voting on HB 146 this week, a bill that would give the jury in any trial the power of nullification.
In this context a unanimous jury could present a not-guilty verdict despite the evidence in the case, or the letter of the law as written or applied, if it agreed in total that the law itself or the circumstances of its application are not compelling grounds for a guilty verdict.
From the Bill itself: Right of Accused. In all court proceedings the court shall instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy. The court shall permit the defendant or counsel for the defendant to explain this right to the jury.
So why would you want that?
The application of the law upon which the defendant was charged could be too narrow or to broad. The punishment as defined by law for those charges might seem excessive in the present circumstances. It might be a bad law, or just unclear. It may even (somehow) violate the defendants rights. Without jury nullification, the jury and the court have their hands tied. Bad laws or sentencing requirements go unchallenged where they matter most; to the lives of those few who might be unjustly charged as a result and should not have to wait in jail while the Legislature tries to work it out.
Jury Nullification sends a strong message to the practitioners of the legal system about how they exercise their discretion and to the General Court where law is made, that something is not right with how that law has been applied in these circumstances.
Keep in mind that Jury nullification does not nullify the actual law. It nullifies its application in the context of the trial at hand. It allows the jury of your peers to think outside whatever box the judge or the prosecution has constructed for them by allowing them to ask if the law itself has been properly applied to the case of the accused. (That’s the simplest explanation, as far as I can tell. Please correct me if I have missed something.)
And improperly applied law often results in appeals and new trials that can cost taxpayers millions, while leaving the case unresolved for years.
Would it not make more sense to inform the jury of their right to nullify? To allow them to look at the defendant, the legal system, and the law all together? And if, in their unanimous judgment (and it would have to be unanimous), the law is not being applied correctly, they could nullify the charges based upon it.
A jury determines the verdict. They decide the fate of the accused. If a jury trial is necessary to ensure real justice, in our real world, then why is that same jury limited in its power to interpret the circumstances and application of the law to the case at hand? How do the people not benefit from this; and what message does it send to prosecutors about making sure they are using the law properly to ensure justice, not just court room victories and jail time but actual justice?
It seems to me that if you can get a unanimous jury to agree on anything at all, what are the odds they will all see that the law as applied, or the circumstances as presented, are suspect to such a degree that they are questioning the law itself? And if they actually can agree it is suspect, where is the justice in refusing them the authority to act on that reasonable doubt–not just of the evidence, but of how the law itself is being used?
Freedom comes with risks. Any system of justice will have blind spots and flaws, and where it overreaches there can be no other remedy than jury nullification. We must always ensure that the innocent go free, even if it means a few of the guilty must as well. It is the only way to protect the people from the will and force of the guns of government.