Throughout the United States, judges have forbidden defense attorneys from informing juries that they have a right to nullify the law based on their dislike of the law. In California for example, jurors are required to inform on other jurors if one of them argues that the law is bad. The judge will then replace that juror with an alternate. A defense attorney who argues on grounds of nullification could face disbarment or other sanctions by the court, even though nullification is a right all U.S. jurors poses under common law.
On June 18, New Hampshire Governor John Lynch signed HB 146, which reads: “[A] Right of Accused. In all criminal proceedings the court shall 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 controversy.”
I have the feeling this New Hampshire law will end up having a tremendous effect on the American judicial system as a whole. If enough people start nullifying drug laws in New Hampshire, eventually New Hampshire prosecutors will be forced to stop prosecuting drug offenses in that state entirely. In 2010, a Montana case never even made it to trial because prosecutors could not find enough people who would be willing to convict a person based on drug charges.
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New Hampshire is a anomaly for New England states,
Open carry of firearms
no sales tax
and now jury
a fully informed jury!!!
keeps up I may move to New Hampshire
survivingsurvivalism.com
I grew up there. I miss it. Your business was your business.
You must have left a long, long time ago. This particular bill is an anomoly.
Jury Nullification is not just for Drug Laws !!!
BS. It is for any law the public deems egregious. This is true even if the public doesn’t know the definitions of the words “deems” and “egregious”.
Whoops, read that wrong. 🙂
Contrary to the wishes of the libertarians and pot smokers who wrote the Wikipedia article jury nullification is not allowed under the law and is not legal. The legislature is elected to write the law. The Judge tells the jury the law and the jurors are expected to apply that law to the facts.
You should expect and hope that the jury follows the law. If they don’t, they may convict you just because you didn’t testify or you are too rich or too poor or the victim was too pretty.
In a civil case they may rule against you because you work for the wrong business or you are too rich or for some other silly reason.
If a jury believes it doesn’t have to follow the law there will be no law. The army will be patrolling the streets because we will have become Afganistan or Yemen.
So in your mind: The State is perfect, and it is the duty of the citizenry to follow The State’s orders!! (like robots)
Oooo that sounds very 1984, and is oh so “Shut Up Slave!”
Nullification has been a tradition in the common law since before the United States was a republic.
You don’t think juries convict because the defendant didn’t testify, or the defendant is rich or unpopular?
My understanding is that common law is irrelevant when all the law is written down.
As pure coinkeydink, I got a jury summons and I’ve been thinking about not swearing to follow the law as stated by the judge. “How can I swear to future action when I don’t know what facts and what law is involved?” Not trying to get off jury duty, just telling the truth. But I’ll make sure wifey has enough cash to draw my bail.
Ha, ha. “The Law”…. vs …. We the people.
Same as it always was.
Most of “the Law” is not written down in statutes, and even the parts that are are interpreted by judges through the lens of the common law.
I don’ think that is true. There are common law schemes and statutory law schemes.
“If” California has a statute that say: “Juries must follow the law as directed by the Judge and failure to do so if grounds for removal from the Jury” then I don’t see how “common law” has diddly squat to say about it.
Maybe the judge will inform me?
Any other good questions?
It very well may, but I’d say it is far from certain.
Take as an example: state regulation of public utilities. Today you would probably say “of course states may create laws to regulate public utilities.” But the reality is that power only exists because of a long series of court rulings that eventually led to the state having the power to create statutes to regulate them. The state had the authority to create statutory law because the common law had evolved to allow for it. It would not have been valid otherwise.
Similarly look at copyright law. “Fair use” is a doctrine that is well established within the common law. If the Congress were to pass a new copyright act tomorrow that did not allow for fair use, the courts would most likely reject the new law because it is wildly divergent from long established legal tradition.
So going back to nullification, if it is well accepted in the common law that juries are to judge both the facts and the law, as was argued in the past, then it would be viewed as completely invalid for the state to come in and take that right away. But if the common law has changed in the past two hundred years where it is no longer an accepted expectation, then yes, the statute would perform as you expect.
Also, how do you prove intent? If the jury all think the law is unjust and decide to not convict, the judge can’t just say “I think you are deliberately not following the law and so I will get a new jury and try the guy over again.”
Fun when two people argue each admitting first they don’t know?
I think common law/precedent/long history of is good when resolving ambiguity but when no ambiguity is present==the just passed/written law should control. Thats how democracy is supposed to work. Don’t like juries deciding if the law at issue is valid==pass a law. Thats how change is made through our democratic, though representational and paid for, system is supposed to work.
Double jeopardy is not fairly raised.
Intent is found BEFORE a judgment is reached and is based on the evidence of same before the judge==usually statements by the juror involved. There is no “right” to be a juror==toss the bad ones off as the judge may variously determine. As long as there are alternates available, no mistrial at all.
Most arguments by analogy are very poor. You made a good one though regarding how the issue of “fair use” might arise to contest a restrictive new law right on point. I agree==any court would (and should) have a tussle with such a situation. Most issues won’t be that fairly contested.
Take also the Fifth Amendment. It literally only protects against double jeopardy for charges where maiming or execution are the punishment. Judicial precedent is what extends it to all charges… even the smallest misdemeanor. So while the language of the Constitution itself in no way prohibits re-trying a person for petty shoplifting, a state law allowing for it would be thrown out immediately as invalid because it is inconsistent with well established precedent.
I’ve never heard that before. Interesting (if true). but in any case, I don’t think common law/precedent controls over a new law directly on point.
How would things ever change if such were true?
You were on a roll there.
Maybe they will use the nullification to allow the government to seize even more assets from anyone with a joint.
For proponents of nullification, why have laws at all? If juries are permitted to decide whether an act was wrong or not regardless of legislation why have legislation get in the way of that process at all?
Frankly, the fundamental concept of rule of law is thrown out the window by nullification. If you don’t like a law, then have it changed. Allowing juries to nullify the law or law enforcement ignore enforcement defeats the purpose of having rule of law. It creates a moral hazard where there is no consequence to writing bad laws (after all, the politician can claim he doesn’t expect to actually be enforced or that juries would actually prosecute people under the law).