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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Cheshire

No. 2013-426

THE STATE OF NEW HAMPSHIRE

v.

RICHARD PAUL

Argued: June 18, 2014

Opinion Issued: October 24, 2014

Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney 

general, on the brief and orally), for the State.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the 

brief and orally), for the defendant.

LYNN, J. Following a jury trial in Superior Court (Kissinger, J.), the 

defendant, Richard Paul, was convicted on three counts of the sale of an ounce 

or more of marijuana, one count of possession with intent to distribute an 

ounce or more of marijuana, and one count of the sale of a substance 

represented to be LSD. See RSA 318-B:2,:26 (2011) (amended 2013). The 

defendant appeals, asserting that the trial court failed to comply with RSA 

519:23-a (Supp. 2013) by declining to give the jury nullification instruction he 

requested and by giving other jury instructions that effectively contravened his 

“jury nullification defense.” We affirm.
2

The following facts are derived from the record. On April 17, April 27, 

and May 16, 2012, the Attorney General’s Drug Task Force, using a 

confidential informant, conducted controlled buys of marijuana from the 

defendant, with a final controlled buy arranged for May 30, 2012. On April 27, 

the defendant also sold the confidential informant a substance that he 

represented to be LSD. During the May 30 meeting, the defendant was 

arrested. The defendant was tried before a jury in April 2013 and found guilty 

on all charges. 

Before trial, the defendant, who characterizes himself as a “marijuana 

activist,” requested the following jury instruction:

You are not required to convict the defendant. If you feel that a 

conviction would not be a fair or just result in this case, it is within 

your power to acquit even if you find the state has met its burden 

of proof. You must however keep in mind that we are a nation 

governed by laws. Unless finding the defendant guilty is 

repugnant to your sense of justice you should follow the 

instruction on the law as I gave it to you. You must also keep in 

mind that you may not find the defendant guilty unless the State 

has established guilt beyond a reasonable doubt.

The State responded by objecting only to the wording of the instruction, and 

proposed the following alternative language:

We are a nation governed by laws. You should follow the 

instruction on the law as I give it to you, including the instruction 

that you should find the defendant guilty if the state has 

established guilt beyond a reasonable doubt. However, if finding 

the defendant guilty is repugnant to your sense of justice, and you 

feel that a conviction would not be a fair or just result in this case, 

it is within your power to acquit even if you find the state has met 

its burden of proof.

At a hearing to review jury instructions held just before closing 

arguments, the defendant informed the court that he did not object to the 

State’s proposed instruction. In support of his argument that the court should 

give the proposed instruction, the defendant contended that although RSA 

519:23-a afforded him the right to argue nullification to the jury, two 

provisions of the standard instructions given to jurors in criminal cases tended 

to negate such an argument. The first is the instruction which states, “You 

must follow the law as I explain it regardless of any opinion you may have as to 

what the law ought to be.” The second is the so-called Wentworth instruction, 

which states: 
3

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 of the elements of the offense charged beyond a 

reasonable doubt, you should find the defendant guilty.

State v. Wentworth, 118 N.H. 832, 839 (1978) (emphasis added). The 

defendant argued that the distinction between “must” and “should” within the 

Wentworth instruction is too subtle and does not adequately apprise the jury of 

its ability to nullify. The State did not object to giving a nullification

instruction using the language it had proposed, but observed that RSA 519:23-

a does not compel the court to give such an instruction.

Following the hearing, the trial court announced that it would not give a 

jury nullification instruction. The defendant then reiterated his objection to

the instruction that the jury “must” follow the law as stated by the court. In 

response, the State suggested that the defendant’s objection could be resolved 

if the word “must” in the instruction were changed to “should.” The court 

agreed to make this change to the instruction, and the defendant made no 

further objection.

During closing arguments, defense counsel informed the jurors that they 

could acquit the defendant even if they thought the State had proven its case 

beyond a reasonable doubt, and she urged the jury to do so, arguing, “with this 

man, in these circumstances, the fair and just verdict is not guilty.” In its 

closing, the State acknowledged that the defendant’s description of jury 

nullification was correct, but argued that based on the evidence the jury 

should find the defendant guilty. After closing arguments, the trial court 

instructed the jury that, “You should follow the law as I explain it regardless of 

any opinion you may have as to what the law ought to be.”1 The court also 

gave the standard Wentworth instruction. Following the convictions, the 

defendant moved for judgment notwithstanding the verdict, which the trial 

court denied. This appeal followed.

The defendant asserts that the trial court’s jury instructions contradicted 

and undermined the defendant’s explanation of the jury’s nullification right as 

laid out in RSA 519:23-a. The defendant contends that RSA 519:23-a should 

be construed broadly and that compliance with it requires that: (1) the trial 

court allow the defendant to make a jury nullification argument; (2) the trial 

court’s jury instructions neither contravene nor undermine the defendant’s 

argument; and (3) the trial court give a more rigorous nullification instruction

than the standard Wentworth instruction to insure that the jury is adequately 

 

1 The court also instructed that, “If the lawyers state the law differently from the law as I explain it 

to you, then you must follow my instructions and ignore the statements of the lawyers.” The 

defendant did not object to this portion of the instructions.
4

informed about nullification. The State asserts that RSA 519:23-a merely 

codifies pre-existing law. We agree with the State.

The construction of RSA 519:23-a presents an issue of law, which we 

review de novo. See State v. Addison, 160 N.H. 732, 754 (2010). We are the 

final arbiters of the legislature’s intent as expressed in the words of the statute 

considered as a whole. Id. When interpreting statutes, we look to the plain 

language of the statute itself, and, if possible, construe that language according 

to its plain and ordinary meaning. Id. We interpret legislative intent from the

statute as written and will neither consider what the legislature might have 

said nor add language it did not see fit to include. Id. Additionally, we 

interpret a statute in the context of the overall statutory scheme and not in 

isolation. Id. 

In 2012, the New Hampshire legislature enacted RSA 519:23-a, which 

took effect on January 1, 2013.2 It states: “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.” RSA 

519:23-a (Supp. 2013) (emphasis added). In the session law enacting this 

statute, the legislature included the following preamble:

Findings and Intent of the General Court. Under the decisions of 

both the New Hampshire supreme court and the United States 

Supreme Court, the jury has the right to judge the facts and the 

application of the law in relationship to the facts in controversy. 

The jury system functions at its best when it is fully informed of 

the jury’s prerogatives. The general court wishes to perpetuate 

and reiterate the rights of the jury, as ordained under common law 

and recognized in the American jurisprudence, while preserving 

the rights of a criminal defendant, as enumerated in part 1, 

articles 15 and 20, New Hampshire Bill of Rights.

Laws 2012, 243:1 (emphasis added).

Two features of both the statute and the preamble stand out in regard to 

the arguments advanced by the defendant. First, neither contains language 

that purports to impose upon the trial court any obligation to instruct the jury 

as to jury nullification. Second, and more importantly, the highlighted 

language in both the statute and the preamble, which speaks of informing the 

jury of its right to judge the application of the law in relation to the facts, is

decidedly not a direction that the jury is to have the right to sit in judgment of 

the law – the prerogative which, the defendant claims, lies at the heart of jury 

 

2 The State does not contest the applicability of this statute to the offenses at issue. Thus, we 

have no occasion to consider the question of whether the statute applies to offenses committed 

prior to the date it took effect. 
5

nullification. Cf. United States v. Dougherty, 473 F.2d 1113, 1130-37 (D.C. 

Cir. 1972). Instead, the statute merely delineates the jury’s traditional function

of determining how the law applies to the facts as it has found them, which it 

must necessarily perform in every case in order to reach a verdict. See N.H. 

Bar Assoc., Criminal Jury Instructions 1.01 (1985) (“You must apply the law 

given to you in these instructions to the facts and in this way reach a fair and 

just verdict.”); see also Pierce v. The State, 13 N.H. 536, 549 (1843) (Gilchrist, 

J.) (criticizing some courts and lawyers for “a failure to discriminate between 

the application of the law to the fact, and the decision of the law by the jury”).

Although we do not find RSA 519:23-a to be ambiguous, the legislative 

history of the statute is particularly instructive in this case. That history 

makes plain the limited intent of the legislature to codify existing law. The 

legislation that ultimately became RSA 519:23-a was introduced in the 2011 

session of the legislature as House Bill (HB) 146. See Laws 2012, ch. 243. As 

originally drafted, HB 146 contained language that would have given the jury 

the right to judge both the facts and the law. It stated: 

In all court proceedings the court shall instruct the jury of its 

inherent right to judge the law as well as the facts and to nullify 

any and all actions they find to be unjust. The court is mandated 

to permit the defendant or counsel for the defendant to explain this

right of jury nullification to the jury.

Following public hearing, the House Judiciary Committee voted 15-0 to 

recommend that the bill was “inexpedient to legislate” (ITL). See N.H.H.R. Jour.

281 (2011). “The committee concluded that, as drafted, this bill would 

incorrectly instruct the jury to put the law on trial rather than the application 

of the law in the case actually before it. The committee further concluded that 

the so-called ‘Wentworth’ instruction . . . adequately informs the jury of its 

unquestioned right of nullification without misleading it.” Id. When the 

committee’s recommendation came before the full House, the bill was 

recommitted to the committee, where it was amended to remove the language 

granting the jury the right to “judge the law” and to “nullify any and all actions 

[the jurors] find to be unjust.” See id. at 341. Substituted was language 

requiring the court to instruct the jury of its right to judge the facts and the 

application of the law to the facts, and requiring the court to permit the 

defendant to explain this right to the jury. See id. Thereafter, the bill was 

further amended to make it applicable only to criminal cases and to eliminate 

the requirement that the court instruct the jury of its right to judge the facts 

and the application of the law to the facts in controversy, and, as ultimately 

enacted in 2012, contained only the requirement that the court permit the 

defendant to inform the jury of this right. See Laws 2012, ch. 243. 

Finally, construing RSA 519:23-a as merely codifying existing law, rather 

than conferring on the jury a right to judge or nullify the law, is consistent with 
6

the doctrine of constitutional avoidance. This well-established doctrine 

requires us, whenever reasonably possible, to construe a statute so as to avoid 

bringing it into conflict with the constitution. See State v. Ploof, 162 N.H. 609, 

620 (2011). Were RSA 519:23-a interpreted to grant juries the right to judge or 

nullify the law, there would be a significant question as to its constitutionality. 

See Pierce, 13 N.H. at 554 (“[I]t is the opinion of the court, that it is 

inconsistent with the spirit of the constitution that questions of law, and still 

less, questions of constitutional law, should be decided by the verdict of the 

jury, contrary to the instructions of the court.”) (Gilchrist, J.); id. at 571 (“If it 

were true that the legal power to do an act, without legal accountability for it, 

established a right to do that act, the jury might rightfully acquit the accused 

in all cases, without regard to the law or the evidence, for their power so to do 

is undoubted, and their exemption from accountability equally clear.”) (Parker, 

C.J.); see also State v. Hodge, 50 N.H. 510, 523 (1869) (noting that, in Pierce, 

the common law of New Hampshire, which prior to that decision had permitted 

the jury to judge the law, “was held to be illegal and unconstitutional, and the 

new doctrine was announced that the jury are not the judges of the law in 

criminal cases”).

Having concluded that RSA 519:23-a represents simply a codification of 

pre-existing law regarding the function of the jury in criminal cases, we briefly 

summarize that law. It is well established that jury nullification is neither a 

right of the defendant nor a defense recognized by law. State v. Sanchez, 152 

N.H. 625, 629 (2005). Rather, jury nullification is the undisputed power of the 

jury to acquit, even if its verdict is contrary to the law as given by the judge 

and contrary to the evidence. Id.; see also State v. Mayo, 125 N.H. 200, 203 

(1984) (recognizing jury nullification to be “an historical prerogative of the jury”

(quotation omitted)). The trial court ordinarily gives the Wentworth instruction, 

which is the equivalent of a jury nullification instruction. Sanchez, 152 N.H. at 

629. The defendant is not entitled to a more specific jury nullification 

instruction, and the decision to give such an instruction, when requested, lies 

within the sound discretion of the trial court depending on the facts of a 

particular case. State v. Bonacorsi, 139 N.H. 28, 31 (1994); State v. Brown, 

132 N.H. 520, 527 (1989). Here, the court gave the Wentworth instruction, 

and, as discussed above, nothing in RSA 519:23-a required the court to do 

anything more.

In her closing, the defendant’s counsel did not argue that the provisions 

of RSA chapter 318-B that he was charged with violating did not apply to the 

facts proved by the State at trial. Rather, as pertinent to the nullification 

issue, counsel contended that the jury should find the defendant not guilty 

notwithstanding the law, arguing: “But ask yourself whether this law makes 

sense to you, that on one hand something has no medical application, yet, on 

the other hand there are several governments who are allowing it to be 

medically applied.” Nothing in RSA 519:23-a required the trial court to permit 

the defendant to make such an argument asking the jury to judge the law 
7

itself. Nor did the statute require the court to instruct the jury that it “should” 

rather than “must” follow the court’s instructions. Thus, the trial court gave 

the defendant the benefit of an argument and an instruction to which he was 

not entitled. He therefore is in no position to complain. See State v. Wells, 166

N.H. ___, ___, 89 A.3d 156, 160 (2014) (holding that where trial court 

improperly struck evidence that was properly admissible, “the defendant 

achieved more than he was entitled to secure and consequently cannot 

complain of the trial justice’s failure to declare a mistrial for the attempted 

introduction of such evidence” (quotation and brackets omitted)); State v. 

Dorsey, 118 N.H. 844, 847 (1978) (noting that “by allowing the defendant this 

backdoor use of the competing harms statute, the court gave him the benefit of 

a defense to which he was not entitled”).

In conclusion, although RSA 519:23-a requires the trial court to allow 

the defendant “to inform the jury of its right to judge the facts and the 

application of the law in relation to the facts in controversy,” it does not require 

the court to allow the defendant to inform the jury that it has the right to judge 

the law or the right to ignore the law. In other words, it is not a jury 

nullification statute. Further, it is of no moment that the court’s instructions 

may have contravened or undermined the defendant’s jury nullification 

argument because the statute gave the defendant no right to make such an 

argument. 

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.