By a vote of 184 to 145, the New Hampshire House recently voted for a bill that would require judges in New Hampshire to inform a jury that they may find a defendant not guilty if, based on the facts of the case, a guilty verdict would yield an unjust result.
Currently, judges instruct New Hampshire juries using the Wentworth instruction. Juries are told:
If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.
If the new bill becomes law, judges shall be required to also advise juries:
Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.
New Hampshire RSA 519:23-a, which became effective on January 1, 2013, gave defendants the right: “…to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy;” however, without a corresponding jury instruction given by the judge, the ‘right’ hasn’t meant as much as many defendants had hoped.
It has been debated for some time whether it is unconstitutional for a jury to return a jury nullification verdict when the case has been proved beyond a reasonable doubt but, practically speaking, it has always been within the province of a jury to do so. The issue is whether this ‘right’ is widely known and understood by juries, and whether it should be codified into law.