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Bill seeks to strengthen criminal defense to unjust prosecution

A bill filed in the New Hampshire House for 2018 requires courts to inform juries in criminal cases of their right to return a not guilty verdict when a guilty verdict would cause an unfair, unjust result. HB1443, which would be a significant expansion of criminal defense rights,  has been referred to the House Judiciary Committee. The 2018 session will begin on Jan. 3.

The legal concept behind the bill is known as jury nullification. The current law instructs the court to tell defense attorneys that they may inform the jury that it has the right to judge the facts and the application of the law in relation to the facts in controversy. That is a restrictive formula that keeps the jury within a certain definitive boundary line.

However, the proposed law, which has been prefiled by eight House representatives, would require the court to tell the jury that it has a right to acquit if  they believe that a guilty verdict would work an injustice. This would be a substantial potential benefit to criminal defendants in cases where the prosecution has proved the elements of the charged offense beyond a reasonable doubt. Even in such cases, the court must tell the jury that it doesn't have to convict if their "right of conscience" tells them that a conviction would yield an unjust sentence.

The law requires the court to tell the jury of this right instead of simply allowing criminal defense counsel to point it out. The court has a greater influence on the jurors' understanding of what they must do to fulfill their responsibilities. The New Hampshire House passed a similar bill last year, but it was killed in the Senate. The state has some experience with jury nullification. For example, in one case a jury declined to convict a man of illegal cultivation of marijuana for medical and religious purposes, even though he was technically guilty of the stated offense.

Source:, "Bill to Require Fully Informed Juries Introduced in New Hampshire", Nov. 21, 2017

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