Lawyers prepare for jury nullification

Criminal defense attorneys predict New Hampshire jurors routinely will be told they have the right to find someone innocent even if the state proves its case because New Hampshire has passed what appears to be the nation's first “jury nullification” law.

Earlier this month, a Belknap County Superior Court jury found a Barnstead man innocent of felony drug charges after the judge instructed jurors they could decide that acquittal was “a fair result,” even if the state had met the burden of proof.

It's a legal concept known as jury nullification, a power that experts say has resided in the U.S. Constitution since the nation began but is rarely applied in modern courtrooms.

And it's the basis for a new state law that permits the defense in all criminal cases “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

Read the rest at the Union Leader.

I expect this to turn out well. Even good laws can be crude, leading to perverse results in a minority of cases. (Think of wire-tapping laws, which were intended to protect the public from spying, and how they've been used by the police to justify confiscating cameras.) And democracy can be pretty crude itself, churning out bad laws regularly. It's nice to have that extra check on the justice system. Another round of quality control, if you will.

Depending on how often nullification happens, it may even change the incentives faced by police. The police may altogether stop arresting or prosecuting those who are likely to be acquitted through nullification. A good deal for taxpayers and the unjustly prosecuted (though perhaps not for the police or lawyers).

It's true that there may be cases where the prospect of nullification ends up encouraging harmful crimes, but I suspect this effect will be overwhelmed by the many cases where it can be used positively.

The best way to find out is to experiment. We'll see for ourselves soon enough.