New Hampshire House Passes Jury Nullification Bill


Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.

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39 Responses

  1. Avatar Oscar Gordon says:

    Given Burt’s comments on jury nullification, this should be interesting to see in practice.Report

  2. Avatar Chip Daniels says:

    Jury nullification is one of those ideas that people love to imagine, assuming it only works the way they wish it would.Report

    • I actually agree, @chip-daniels .Report

    • Avatar Oscar Gordon in reply to Chip Daniels says:

      I assume you are talking about racism. Seems it’s 6 of one, half dozen of the other, given prosecutors have considerable discretion.Report

      • Avatar Jaybird in reply to Oscar Gordon says:

        Since this is New Hampshire, I’m pretty sure he can’t be talking about racism.Report

      • Avatar Chip Daniels in reply to Oscar Gordon says:

        Jury nullification inherently works in favor of whatever the majority is, since it gives tacit permission to juries to aquit or convict based on their personal notions of”justice”.

        So a black guy is charged with raping a white woman. In a majority white jury, he is convicted. With a majority black jury, maybe he is acquitted.

        A popular person is charged with assaulting an unpopular person. “Justice” is seeing the popular person exonerated, the unpopular person punished.

        If the justice system has no other purpose, it is to push back against this age old and deeply embedded flaw in our nature.

        Jury nullification is really just mobocracy in the courtroom.Report

        • Avatar Oscar Gordon in reply to Chip Daniels says:

          Sure, and that is clearly worse than how the majority applies justice right now.

          I see nullification as, in a way, a check on the unjust aspects we have currently.Report

          • Avatar Chip Daniels in reply to Oscar Gordon says:

            I’m not entirely unsympathetic- Just as with mob violence, there are times when a part of me takes a grim satisfaction when the correct people get hurt.

            But as others here pointed out to me, it rarely if ever gets used only against the correct people- almost always its the powerless and unpopular minority who are the victims.

            Cop killers will never be acquitted, but murderous cops will. Women striking back at abusive husbands will still be convicted while powerful and popular wife beaters will walk.Report

      • Avatar Saul Degraw in reply to Oscar Gordon says:


        No one really knows what goes on in a jury room and in theory jury nullification has always been an implicit right of the jury.

        However, jury nullification in practice has a very ugly history with white juries letting Klansmen and others off the hook for terrorism against Blacks and Civil Rights workers in the South. The reason that the Feds started intervening in the 1960s is because state juries would never convict a white person in the south of violence against black people.

        I don’t doubt that there are times when jury nullification is just and necessary in the face of a blatantly unjust and moronic law. Yet this is also one area where I feel libertarians hand-wave away actual history of how things worked in practice and the real downsides.
        A lot of my dissatisfaction with libertarianism is my feeling that some libertarians hand-wave away what are serious negative externalities in my mind.Report

        • Avatar Oscar Gordon in reply to Saul Degraw says:

          Yes, I know about the lovely history of such in the south, hence my comment about racism.

          There is a difference between hand waving away an uncomfortable negative & holding that the obvious negatives do not necessarily negate the benefits such that X should be discouraged/disallowed. Since you want to be tribal, I’ll add that liberals have their own set of topics where ugly negatives are “hand waved” away because they are inconvenient.Report

          • Avatar Chip Daniels in reply to Oscar Gordon says:

            I think any benefit of nullification is entirely imaginary, while the harms are clear and forceful.

            The prospect of juries rectifying structural injustice with nullification, e.g. exonerating pot smokers or righteous revolutionaries is fantastical daydream stuff.

            In reality, it would sharpen and accelerate the structural injustice already in place, and as I noted upthread, would fall mostly on the shoulders of those who already suffer.

            Think its noteworthy that the people who suffer the most in our society are not the ones using revolutionary rhetoric. That’s most often the province of people like me, white middle class people sitting in comfort knowing that there is no realistic scenario in which my freedom is taken away or that my body is violated.

            I would value the opinion of someone who has actual lived experience with nullification before I start talking about imaginary benefits.Report

    • Avatar notme in reply to Chip Daniels says:

      That’s exactly why we can’t have any good laws b/c we can’t be sure they will only be used by the “right” people.Report

  3. Avatar Damon says:

    Cool. This is good. Shame they actually have to write it into the law. I’ve heard tell that the easiest way to get out of jury duty was to say you supported the “fully informed jury” concept.Report

  4. Avatar LeeEsq says:

    I think a better solution would be too introduce the Scottish concept of “not proven” verdicts into the American system. They aren’t technically supposed to be about jury nullification because the “not proven” verdict is supposed to be used when the prosecutor doesn’t meet his burden of proof. In reality, a verdict of “not proven” usually means “not guilty and don’t do it again.”Report

    • Avatar Oscar Gordon in reply to LeeEsq says:

      Sort of how Nolo Contendre (sp?) isn’t an admission of guilt, but gives the same result?Report

    • Avatar Gabriel Conroy in reply to LeeEsq says:


      I’ve been curious about “not proven” ever since I first heard about it (perhaps from you?). [ETA: but apparently not curious enough to do any research.] What practical effect does it have other than “don’t do it again”? Can the accused be retried? Does “not proven” make it more likely for the accused to face a harrowing civil trial?Report

      • Avatar LeeEsq in reply to Gabriel Conroy says:

        I don’t know much about it myself. It only seems to exist in Scotland. According to Wikipedia, before the 18th century Scottish Juries could only rule proven and not proven. In 1728, a Scottish jury insisted that it should be able to find a defendant not guilty in order to prove more exoneration than not proven. This eventually lead to not proven being an acquittal used when the judge or jury thinks that the defendant might be guilty but the prosecutor hasn’t presented enough evidence. Basically, not guilty is used when the Scottish jury thinks the defendant is innocent and not proven when guilty but doesn’t want to inflict punishment for one reason or another.Report