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 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 says:

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

      • Avatar Chip Daniels 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 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 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 Jaybird says:

              That’s different from now… how?Report

              • @jaybird

                I think what we have now–that is, unjust acquittals for murderous cops when they’re actually brought to trial–is a form of jury nullification.

                I don’t quite understand the push back against Chip’s original comment, which I took to be an observation that jury nullification might be good, but there are circumstances where it might not.

                I–and a few others here–probably favor jury nullification more than Chip does. And while I’m not sure what I think of this proposed law, I lean toward favoring it. Still, there could be some bad with the good I envision.Report

              • Avatar Jaybird says:

                For me, the question is “should only murderous cops be jurily nullified?” vs “should murderous cops be jurily nullified as well as a handful of pot users?”

                If the answer is “MURDEROUS COPS SHOULD *NOT* BE NULLIFIED!!!”, yeah, that’s awesome. I agree that that is something that we should totally do something about.

                That said, it doesn’t seem to me that that’s on the table. So the question is whether we should convict fewer people or more or less the same number we’re convicting now.

                I’m guessing: fewer.Report

              • I don’t have much beef with the point you’re making, only that it’s pretty consistent with the point Chip was making.Report

              • Avatar Jaybird says:

                But his point seems to be:

                Premise X
                Premise Y
                Therefore Conclusion not Z

                While mine is

                Premise X
                Premise Y
                Therefore Conclusion ZReport

              • Avatar Oscar Gordon says:

                More like how Democracy is a horrible format of government, except all the others tried to date are worse.Report

              • That’s kind of atmospherics, though. You presume “conclusion not y,” but that’s not what Chip said, at least not in the comment you were responding to.Report

              • Avatar Chip Daniels says:

                Maybe it seems like that to guys like us, who encounter injustice only vicariously, second hand.

                But there are vast numbers and classes of people for whom things could be worse, much worse, and were in living memory.

                I’m guessing that if a black person in Ferguson were to say “it would be worse, how?” their father or grandfather who lived through Jim Crow might tell them exactly how much worse it could be.Report

              • Avatar Jaybird says:

                So jury nullification shouldn’t be available to them?Report

              • Avatar Chip Daniels says:

                But just them. No one else.Report

              • Avatar Jaybird says:

                And how do you intend to codify that?Report

              • Avatar Chip Daniels says:

                My biting sarcasm was a bit toothless, I guess.Report

              • Avatar Oscar Gordon says:

                Perhaps this varies from state to state, but can’t a judge set aside a clearly erroneous jury verdict?Report

              • Avatar Will Truman says:

                A guilty one yes. A not guilty one is much harder. (I think you have to prove malfeasance.)Report

              • Avatar Don Zeko says:

                Jury nullification is available to them and will be so long as we have a jury system. The question is whether or not we should encourage juries to use it.Report

              • Avatar Oscar Gordon says:

                I wouldn’t say encourage, just inform.Report

              • Avatar Don Zeko says:

                It’s a close call between the two. But one (like myself) could argue that jury nullification is a side effect of real procedural rights, not a right in itself. Having the court officially weigh in that it is a right does a bit to encourage it.Report

              • Avatar Oscar Gordon says:

                Is it a right, or a power?

                Seems it’s a power a jury can wield against the state.Report

              • Avatar Don Zeko says:

                It’s a power the jury has in the same way that the senate has the power to blockade a president’s court appointments. There’s nothing to stop a jury from nullifying, but that doesn’t mean them doing so is desirable.Report

              • “Yes, you have sworn to give a true verdict based on the evidence, but it’s not like anyone can force you to.”Report

              • Avatar Oscar Gordon says:

                That’s more in line with Brothers Burt’s criticism of jury nullification (a criticism, I will add, that I find much more rational than that of “but it was used to do bad things”).

                Jury nullification is, to me, one of the few ways people have to check the power of prosecutors to overcharge, or to bring charges at all when such is probably not in the interest of justice. Give me a better way to check the abuses of prosecutors & I’ll be happy to let nullification go.Report

      • Avatar Saul Degraw 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 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 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 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 says:

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

    • @leeesq

      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 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