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Jurors in one state TRULY get to decide cases (and why that's news)

Posted by Brian Tillman on 3 July 2012

After a long absence from writing, I finally found a current event significant enough to sit down and blog about, and it's not Obamacare.  Like a lot of other people, for a while I ended up making the best use of my liberal arts degree (Psych/Soc) by waiting tables and bartending.  I was lucky enough to end up in my current career, where trying to understand the minds of people plays a large part of my daily activities, particularly in jury trials.  

In my practice, I often have people come to me who have been charged with some offense that they disagree with.  Sometimes I see a flaw in their reasoning (no you can't break the nose of somebody who won't leave your house party), but every now and then a case comes up where I think the person did something that, although technically illegal, was not unreasonable under the circumstances.  A good example would be a cancer patient who was caught smoking pot, or the guy who shot a man he caught sexually assaulting his daughter.  In each case, the police do their job by taking them in while the dust settles.  After that, the decision of whether to charge the person with a crime or not rests in the hands of the prosecutor.  As you might guess, prosecutors don't always agree with my assessment of a case, but the reality is that they wield an awful lot of power in society, and the effects can be far-reaching for those people who are charged.  The other reality is that there are some prosecutors who are bent on obtaining convictions for public image, or have standing "office policies" with regard to certain offenses, or are simply not mature enough to understand the effect a conviction may have on a person's life (I recall a young female prosecutor in her twenties refusing to budge on a pot case because she wanted to "teach my 40-something year old client a lesson").  Please, just, (sigh...)

In these situations, the ultimate remedy for any citizen is the jury trial.  In the words of Thomas Jefferson, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."  Now to lawyers that's an overused quotation, but the point is that every man has the right to have people, and not judges, decide their cases.  It is one of the shelters from tyranny and overzealous prosecution that can arise when the government itself runs the entire show.  Jurors, as it turns out, may question authority, and make the final call. And, to boot, being convicted by a jury of citizens is easier to swallow than some pronouncement by a judge (i.e., "the man"). 

And now to the point...  Jurors have historically wielded the power to render the verdict as they see fit.  In any of the above scenarios, a juror (or all of them) may decide NOT to convict based upon the perceived fairness of the case.  This is so even if the facts are proven by the prosecution, and there's not a thing the judge or anyone else can do about it.  It's basically the local society making the call on the type of behavior they will tolerate, even if it technically violates a law, and it's called "jury nullification."  They get to vote their conscience.  And if there are eleven who want to convict but only one who says nope, well that's good news for the defendant.  But here's the rub...you're not allowed to TELL them they have that power. How you like that?  Not ever, not in any state.  Except New Hampshire.

New Hampshire just signed into law that jurors may be informed of their right to decide cases based on their concept of societal "rightness," regardless of the state's "proof."  That's right, Live Free or Die, as the state motto says.  In practice it may be less than a bombshell, because both prosecutors and judges will no doubt pound the jurors with their duty to follow the law as instructed by the judge, so they may not feel they have any choice.  Still, you can tell 'em.  You can tell them. (that was on purpose).  In Vermont, where I used to do trials, there is Rule 48(b) which allows judges to dismiss in the interests of justice.  Still, that's judges.  New Hampshire has one-upped you on this one, Vermont, and the rest of you big states as well.  Don't be scared of your people.  As I sit here, I hear fireworks starting to go off in the distance, and I can't imagine a nicer outcome for such an occasion.  Happy Independence Day, New Hampshire. 

Here's a link to some real journalism on the subject, instead of bloggy chatter.  There are plenty more in the Google for you who are interested in such discussions.  See it at  Reason.com NH Jury Nullification.  We also posted a nice article on jury nullification from the New York Times not too long ago on our Facebook page.  Happy reading, and Happy 4th of July to all!

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