Tuesday, January 19, 2010
New Hampshire has a state constitution
Here is a recent New Hampshire Supreme Court decision holding that failure to instruct a jury on an element of a crime is not subject to harmless error review. This is an issue that has come up in Kansas in State v. Daniels, where the KSC followed the United States Supreme Court's lead in Neder to find that the federal constituion allows application of the harmless error rule to such failure. But I don't know that the KSC, like the New Hampshire Supreme Court, has ever been presented with a state constitutional claim on that point. And after In re L.M., at least the KSC has recognized that there is a state constitutional right to a jury trial that is separate from the federal right. And there's a pretty good argument that, textually at least, the right stated in the Kansas Constitution is more clear than that in the New Hampshire Constitution (the right to jury trial shall be "inviolate," not shall be "inviolate except where it wouldn't matter"). So keep it in mind if you have one of these cases on appeal.