jurors refuse to convict defendants under laws they find
objectionable or inappropriately applied, is a favored tactic of
many libertarians who, rightly or wrongly perceive individual
liberty as, at best, a minority taste among their neighbors. They
like the idea of a tool that can be wielded on the spot to shield
people from powerful control freaks without first having to win a
popularity contest. But nullification is useful only if people know
about. And last week, New Hampshire's governor signed a law
requiring the state's judges to permit defense attorneys to inform
jurors of their right to nullify the law.
On June 18, Governor John Lynch signed
HB 146, which reads:
a Right of Accused. In all criminal proceedings the court shallShort, simple and to the point. Nullification advocate Tim
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
Lynch, of the Cato Institute, thinks it's a step in the right
direction, though not necessarily a game-changer.
This is definitely a step forward for advocates of jurySo the law is an improvement over the old order, especially in
trial. Allowing counsel to speak directly to the jury about
this subject is something that is not allowed in all the
courthouses outside of New Hampshire–so, again, this is good.
I am concerned, however, that this language does not go far
enough. We don’t know how much pressure trial judges
will exert on defense counsel. As noted above, if the
attorney’s argument is “too strenuous,” the judge may reprimand the
attorney in some way or deliver his own strenuous instruction about
how the jurors must ultimately accept the law as described by
the court, not the defense. I’m also
afraid what the jurors hear will too often depend on the
particular judge and, then, what that judge wants to do in a
an era when courts and judges are overtly trying to suppress jury
independence, but one whose effectiveness is yet to be
But is this faith in jury nullification misplaced? How likely
are we and our neighbors to symbolically flip our middle fingers to
the powers that be and free defendants charged with, say drug
offenses or gun law violations? After all, the power has long
existed, but you don't often hear of juries staging revolts.
It does happen, though, as a
much-covered 2010 Montana case demonstrates, when a trial
never even started because the court was unable to find
enough jurors willing to convict somebody for marijuana possession.
And a lot of nullification may fly under the radar, because it
results in hung juries rather than full acquittals, and because
judges and prosecutors really want to keep it quiet.
Back in 1999, the Washington Post wrote:
In courthouses across the country, an unprecedented level ofThat article featured a pre-gunrunning Eric Holder objecting
juror activism is taking hold, ignited by a movement of people who
are turning their back on the evidence they hear at trial and
instead using the jury box as a bold form of civil protest. ...
The most concrete sign of the trend is the sharp jump in the
percentage of trials that end in hung juries. For decades, a 5
percent hung jury rate was considered the norm, derived from a
landmark study of the American jury by Harry Kalven Jr. and Hans
Zeisel published 30 years ago. In recent years, however, that
figure has doubled and quadrupled, depending on location.
that, "There is a real potential danger if this problem goes
The article's hung jury estimate wasn't just guess work. A
2002 study (PDF) on hung juries by the National Center for
State Courts found that "In 63% of cases in which the jury
deadlocked, the majority of jurors voted in favor of conviction
compared to 24% of cases in which the majority of jurors voted in
favor of acquittal ..." Such numbers are considered a strong, if
not conclusive sign of widespread nullification. Two of that
study's authors, Paula Hannaford-Agor, of the National Center for
State Courts, and Valerie P. Hans, of Cornell Law School, penned a
paper (PDF) published in the Chicago-Kent Law
Review that said:
The criminal justice community has become increasingly concernedThat paper also concluded that strictly defined nullification
about the policy implications of jury nullification, especially as
jury nullification manifests itself in hung juries. A number of
communities, especially in California, report that up to
one-quarter of all criminal jury trials routinely result in
mistrials due to jury deadlock.
isn't always distinguishable from doubts about the strength of a
case, since the two tend to run together when jurors are skeptical
about the credibility and legitimacy of police and the courts.
So jury nullification may be one of those things we're already
soaking in without realizing it, because people with doubts about
the law stubbornly bring acquittals or deadlock juries without
painting their actions in political colors. Now, in New Hampshire,
maybe we'll get to see what happens when jurors are told that what
they're already doing is officially OK.