One of the things that has caused some of Mr. Bird’s supporters to feel dissatisfied with the New Hampshire Supreme Court’s decision concerns the standard of review applied by the Court and the fact that the Court gave what some see as excessive deference to the government. The first thing to understand about New Hampshire appeal in the Supreme Court is that the Supreme Court is not a “second jury.” The Supreme Court judges assume that the jury got all of the factual questions right. Showing this kind of deference to the factual findings of juries is entirely appropriate. In fact, the system could not operate if the Supreme Court was able to second guess the jury verdict when it hears appeal. Appeals are usually limited to the question of whether the trial judge made an error of law.

The high burden faced by a party appealing a lower court decision, and the deference shown to lower court and jury proceedings, is not unique to New Hampshire. Although there may be some very subtle differences from state-to-state, in general, appellate courts exist to review trial court decisions solely for errors of law. The Supreme Court’s deference to findings of fact in the lower court is standard operating procedure; Mr. Bird is not being picked on in this regard.