CONCORD, N.H. (AP) – Under a proposed law, judges would be required to tell jurors they can refuse to convict someone even if prosecutors proved their case.

The law would codify a right that has been a part of the American legal system for years. Under so-called jury nullification, jurors do not have to convict if they oppose the law under which the defendant is charged.

Supporters of the measure say judges don’t always tell juries they have that authority.

But opponents say juries instructed in this way are likely to deliver inconsistent verdicts in similar criminal cases. They also fear the bill will invite jurors to become mini-legislators and many more hung juries will result.

Richard McNamara, a Manchester lawyer who has published books on court procedures, said this bill invites trouble.

“The problem with the jury nullification instruction is to invite (juries) to decide on a case to case basis and that runs the risk of law descending into an arbitrary procedure,” he said. It “takes away the role of the Legislature in our system.”

Similar bills have failed in the past.

In New Hampshire courts, judges instruct juries with what is called the “Wentworth instruction,” which alludes to nullification but does not directly tell jurors they have the authority.

Supporters of the bill say it is far too subtly worded for most jurors to realize they can find a defendant not guilty even if the state has proven its case.

“We want all the juries equally informed as opposed to partially informed or not informed at all,” Rep. Tony Soltani, R-Epsom, a sponsor of the measure.

“There is no question it is a right invested in juries in New Hampshire and all across the country, yet judges routinely fail to inform jurors about it,” he said.

The bill, which will be the subject of a Senate Judiciary Committee public hearing on Tuesday, would require judges to read the following statement to juries before the start of deliberations.

“Ladies and gentlemen of the jury, the words for these instructions are chosen carefully. I emphasize the word ‘should’ because you as jurors have the absolute right to decline to enter a verdict which could do violence to your conscience, even if you find that the state has proven its case beyond a reasonable doubt. On the contrary, if you find that the state has failed to prove any element of the crime beyond a reasonable doubt, you must find the defendant not guilty.”

Former state Supreme Court justice Chuck Douglas said that while judges can tell juries they have that authority, some figure it out on their own. “This bill makes it a little more honest,” he said.

“It’s not a high-risk situation,” he said. “You’re not going to see mayhem in the courts. In 99 out of 100 cases, it is not an issue. If some guy knocks off a 7-Eleven, it’s not a matter of conscience.”

Charles Putnam, a former associate attorney general, thinks the bill is a bad idea.

“When you get to the criminal trial, that is not the place to revisit if it’s good law or bad law,” he said.

Putnam said the state’s drug laws, domestic violence laws, gambling laws and even hate crimes laws all could become targets for jurors who don’t agree with those statutes.

Attorney General Peter Heed said his office will testify against the bill.

“The practical result is this bill will turn every trial into a mini-legislative hearing,” he said, adding that prosecutors will not only have to prove someone is guilty, they will have the added burden of arguing that the law is fair and reasonable.

AP-ES-05-18-03 1314EDT

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