American Legal Rights, do you know?

I see threads of legal abuse (as those started by CR) and I just wonder why people are so ignorant.

Does anyone know why the Supreme Court has the right to determine a law unconstitutional? Where any court gets that power?

It is not because they derive the right from being the highest court, but because they also act as a jury!

http://www.law.umkc.edu/faculty/proj...ification.html

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Jury Nullification
by Doug Linder (2001)
What is jury nullification?
Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged.# The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

When has jury nullification been practiced?
The most famous nullification case is the 1735 trial of# John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby.# Despite the fact that Zenger clearly printed the alleged libels (the only issue the court said the jury was free to decide, as the court deemed the truth or falsity of the statements to be irrelevant), the jury nonetheless returned a verdict of "Not Guilty."#
Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws.# In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act.# In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws.# And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws.
More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders.

Do juries have the right to nullify?
Juries clearly have the power to nullify; whether they also have the right to nullify is another question.# Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge.
Early in our history, judges often informed jurors of their nullification right.# For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]."# In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.#
Judicial acceptance of nullification began to wane, however, in the late 1800s.# In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.
Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it.# In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not.# Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case.# Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.
Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.#

If jurors have the power to nullify, shouldn't they be told so?
That's a good question.# As it stands now, jurors must learn of their power to nullify from# extra-legal sources such as televised legal dramas, novels, or articles about juries that they might have come across.# Some juries will understand that they do have the power to nullify, while other juries may be misled by judges into thinking that they must apply the law exactly as it is given. Many commentators have suggested that it is unfair to have a defendant's fate depend upon whether he is lucky enough to have a jury that knows it has the power to nullify.
Judges have worried that informing jurors of their power to nullify will lead to jury anarchy, with jurors following their own sympathies.# They suggest that informing of the power to nullify will increase the number of hung juries.# Some judges also have pointed out that jury nullification has had both positive and negative applications--the negative applications including some notorious cases in which all-white southern juries in the 1950s and 1960s refused to convict white supremacists for killing blacks or civil rights workers despite overwhelming evidence of their guilt.# Finally, some judges have argued that informing jurors of their power to nullify places too much weight on their shoulders--that is easier on jurors to simply decide facts, not the complex issues that may be presented in decisions about the morality or appropriateness of laws.
On the other hand, jury nullification provides an important mechanism for feedback.# Jurors sometimes use nullification to send messages to prosecutors about misplaced enforcement priorities or what they see as harassing or abusive prosecutions.# Jury nullification prevents our criminal justice system from becoming too rigid--it provides some play in the joints for justice, if jurors use their power wisely.

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It is a basic right of juries, based on English Common Law.


A couple of other links:
http://www.isil.org/resources/lit/hi...jury-null.html

http://home.earthlink.net/~dlaw70/jurnul.htm

Remember this: Sovereignty Rests with the People?

Bringing up nullification is a good way to avoid serving on a jury. :yes:

:laugh4:Well there is no arguing that point.

If one person brought it up they would consider the whole panel tainted and send them all home. :whip:

Still it was important at the founding of the Nation and important in understanding the Constitution.

I just wonder what law students today are taught regarding it?

I don't know how they teach it, but I've always had a sneaking suspicion that modern jury nullification is viewed by both lawyers and judges as amateur meddling. Why should the unwashed masses be allowed such a important power? It's a monopoly breaker.

I don't understand why people are so keen on juries.

I know if I was innocent and accused of a crime, I would much rather have my future decided by a team of educated judges who know what they're talking about as opposed to some random hicks rounded up at the bus stop.

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Originally Posted by HoreTore

I don't understand why people are so keen on juries.

I know if I was innocent and accused of a crime, I would much rather have my future decided by a team of educated judges who know what they're talking about as opposed to some random hicks rounded up at the bus stop.

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You obviously have no idea how the jury system works. Having your future decided by 'educated' judges alone fills me with horror.

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Originally Posted by InsaneApache

You obviously have no idea how the jury system works. Having your future decided by 'educated' judges alone fills me with horror.

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....And that's your opinion, one at I am sure you have given plenty of thought and reflected on.

Is it really too much to ask that you show me the same courtesy and have some faith in other peoples ability to form independent stances that differ from your own, without being ignorant?

In most US states the accused can waive his right to a jury trial and go straight to the bench

That is fairly rare though, granted the accused going to court is fairly rare most plea

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Originally Posted by Fisherking

Does anyone know why the Supreme Court has the right to determine a law unconstitutional? Where any court gets that power?

It is not because they derive the right from being the highest court, but because they also act as a jury!

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I'm going to have to disagree with you on this one, at least as far as it concerns SCOTUS. SCOTUS can determine a law unconstitutional partially because of Article 3 of the Constitution, and partially from the holding of Marbury v. Madison, 5 U.S. 137 (1803). While not delineated in the Constitution with such detail, judicial review was specifically contemplated by the founders, as explained in the Federalist papers:

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If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

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While the idea of judicial review does indeed originate (along with nearly all aspected of US law) from English Common Law, the current system was specifically and intentionally constructed by the founders to act as a check on the legislature. It is part of the balance of powers system and is designed to prevent the representatives of the people from expanding their own powers without the prior approval of the people.

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It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed as pleasure.

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Marbury, 5 U.S. at 177-8.

I learned all I need to know from the OJ trial

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Originally Posted by Strike For The South

In most US states the accused can waive his right to a jury trial and go straight to the bench

That is fairly rare though, granted the accused going to court is fairly rare most plea

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No, that is not rare at all. In fact, bench trials make up the majority of all trials.

http://www.ncsconline.org/d_research...inalTrials.xls
(These statistics are for 23 states, not the entire country. The statistics are, however, a good cross section of the nation.)
Total state criminal trials in 2002: 91,111
Total state criminal bench trials in 2002: 55,447 (~60.8%)
Total state criminal jury trial in 2002: 35,664 (~39.2%)

The choice of whether a bench or jury trial is better for a particular defendent depends on the circumstances of the case. Juries are heavily swayed by emotion and thus criminal trials for many morally abhorrent crimes are better held before a judge, who is trained to be impartial. In addition, many cases will hinge on proper implementation and interpretation of the law (such as custody of evidence, illegal searches, etc.), another area in which judges are far more likely to give a defended an advantage than a jury. Bench trials are also a lot faster. It takes a lot of time to assemble and instruct a jury. The defendant will either have to post bail or sit in jail while this whole process goes on. If neither of those options are appealing, and the case is relatively minor (most misdemeanors), defendants will often opt for a bench trial just to get it over with quickly.

wow, to many police dramas, thanks tincow

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Originally Posted by Strike For The South

wow, to many police dramas, thanks tincow

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I don't know any lawyers who watch the law/cop shows, simply because they're so unbelievably inaccurate that it's impossible to be entertained by them when you know that everything they're doing is wrong. I have a feeling that cops feel the same way about them (barring, perhaps the show Cops. :laugh4:) I know the same is true for medical shows. I love House and watched plenty of ER back in the day, but my doctor friends avoid them completely because they're so unrealistic. Law isn't like crab fishing, it's slow and boring and generally involves a lot of reading, writing, and conference calls. Most stuff that the legal industry thinks is riveting would make the rest of the world blow its brains out just to end the agonizing tedium.

For the record, ALL law shows do the following egregious errors:
1) Misusing hearsay rules.
2) Leading witnesses.
3) 'Breaking' defendants who are testifying during a trial. Not only does this never happen in real life, on TV it usually involves egregious conduct errors by the attorneys. If a lawyer starts yelling in-court, that lawyer is about to spend the night in jail for contempt of court.
4) Insanity defense. Almost never used in reality, and even when it is used it's almost never successful.

The electronics geek in me dies a little every time I see software presented in a movie/tv-show.

Especially hacking and that blasted fingerprint-identification-program used by most cop shows... There should be laws against it.

Punishable by death.

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Originally Posted by TinCow

I don't know any lawyers who watch the law/cop shows, simply because they're so unbelievably inaccurate that it's impossible to be entertained by them when you know that everything they're doing is wrong. I have a feeling that cops feel the same way about them (barring, perhaps the show Cops. :laugh4:) I know the same is true for medical shows. I love House and watched plenty of ER back in the day, but my doctor friends avoid them completely because they're so unrealistic. Law isn't like crab fishing, it's slow and boring and generally involves a lot of reading, writing, and conference calls. Most stuff that the legal industry thinks is riveting would make the rest of the world blow its brains out just to end the agonizing tedium.

For the record, ALL law shows do the following egregious errors:
1) Misusing hearsay rules.
2) Leading witnesses.
3) 'Breaking' defendants who are testifying during a trial. Not only does this never happen in real life, on TV it usually involves egregious conduct errors by the attorneys. If a lawyer starts yelling in-court, that lawyer is about to spend the night in jail for contempt of court.
4) Insanity defense. Almost never used in reality, and even when it is used it's almost never successful.

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It's like finding out your favorite ballplayer is an asshole

TinCow destroyer of a young boys dream :sad:

~;)

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Originally Posted by HoreTore

The electronics geek in me dies a little every time I see software presented in a movie/tv-show.

Especially hacking and that blasted fingerprint-identification-program used by most cop shows... There should be laws against it.

Punishable by death.

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Oh yeah, we have some security camera footage, can you zoom in on that part?
*types in loads of text*
yeah, that's good, can you make it sharper?
*presses single button*
oh yeah, that's good, print that out please
*prints out perfectly sharp image of a tiny part of a really bad security camera still image*

:wall:

But then you have to remember they only have 45 minutes minus the jokes and socialising at the beginning and end from case opened to case closed, plus, as has been said, real life is more boring.
Who would want to watch a group of "profilers" on TV who do nothing than read tons of papers? :laugh4:

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Originally Posted by Husar

Oh yeah, we have some security camera footage, can you zoom in on that part?
*types in loads of text*
yeah, that's good, can you make it sharper?
*presses single button*
oh yeah, that's good, print that out please
*prints out perfectly sharp image of a tiny part of a really bad security camera still image*

:wall:

But then you have to remember they only have 45 minutes minus the jokes and socialising at the beginning and end from case opened to case closed, plus, as has been said, real life is more boring.
Who would want to watch a group of "profilers" on TV who do nothing than read tons of papers? :laugh4:

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The worst is when you actually hear a PC making noises as they hack the DOD database brrr weee zerrrrrrrr kaka kakak daaaaaaa any time I ever used a pc in a work place even the fan is quiet cos it's stored under the table to save space in your cubicle.

Is it appeopriate to bring up that classical masterpiece; "Hackers"?

Well seeing as they were trying to um ah what was that movie about I remember angelina jolie and the rest is a blank.

The reason why people don't care for juries is because the smart people know how to get out of it, and then lawyers get to filter out the unbiased. Now you are left with the dumb and biased. What a great system.

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Originally Posted by a completely inoffensive name

The reason why people don't care for juries is because the smart people know how to get out of it, and then lawyers get to filter out the unbiased. Now you are left with the dumb and biased. What a great system.

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Which shows that legal professionals have subverted and legislated the jury system into an undesirable form.

In the early years of the Republic it was required that laws be written so that they were readily understandable. It was also illegal to charge for representing someone in court.

As the laws on this were relaxed we certainly find a change in the language of the law as well as requirements for those practicing it.

Today it is rather like an ancient priesthood who are needed to intercede between man and the divine, in this case, the law.

Do you really think that is a desirable situation?

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Originally Posted by Fisherking

Which shows that legal professionals have subverted and legislated the jury system into an undesirable form.

In the early years of the Republic it was required that laws be written so that they were readily understandable. It was also illegal to charge for representing someone in court.

As the laws on this were relaxed we certainly find a change in the language of the law as well as requirements for those practicing it.

Today it is rather like an ancient priesthood who are needed to intercede between man and the divine, in this case, the law.

Do you really think that is a desirable situation?

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No, I was being sarcastic when I said my last sentence. This is what you need to do to fix the jury system.

1. Pay the people a good wage. 50 bucks for a day is absolutely terrible for trying to keep middle income jury members from trying to get the hell out of there. For them, it might as well be having to take a day off from work.
2. Remove the ability to get out unless you have a good excuse and remove the ability of lawyers to filter out the jury. Implement some blind statistics in selecting jury members. If one or more can't do it, just run the stats again and have it pick another completely random person. The jury is supposed to be a random selection of your peers, so having a computer randomly decide who they are is closer to the spirit of the institution than having two lawyers decide it imo.

Ah! But it was so true!

Most of the corruption in the legal system comes from within. Many if not most politicians have legal degrees.

Often the language of bills enacted into law are written to confuse or even mislead laymen (another religious term, as opposed to priesthood) as to what is being implemented.

The move from Common Law to Admiralty Law was another outright subversion of the system.

I am not arguing against Judicial Review, but rather for a Jury’s right to rule on the law as well.

The law is to serve the people. They are governed by it and it takes little or no education on the fact of whether the statue is desirable to the people or not.
Juries usually act on what is just. Legal Professionals work to the Law alone without thought of Justice.

Most common people go to court seeking justice, and just about any lawyer will tell you that justice is not a part of the system.

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Originally Posted by a completely inoffensive name

2. Remove the ability to get out unless you have a good excuse and remove the ability of lawyers to filter out the jury. Implement some blind statistics in selecting jury members. If one or more can't do it, just run the stats again and have it pick another completely random person. The jury is supposed to be a random selection of your peers, so having a computer randomly decide who they are is closer to the spirit of the institution than having two lawyers decide it imo.

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Voir dire is not exclusive to the US. It is used in most western-style jury-oriented judicial systems. While voir dire can be abused, it also serves to ensure that the jury is truly objective and thus to give the fairest trial possible. By abolishing voir dire and using a purely random selection of the population, you are pretty much guaranteeing that some proportion of the juries will be heavily biased against one side or the other before the trial begins. Simple probability dictates this will happen if the ability to weed out bias is not allowed in each case.

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Originally Posted by TinCow

Voir dire is not exclusive to the US. It is used in most western-style jury-oriented judicial systems. While voir dire can be abused, it also serves to ensure that the jury is truly objective and thus to give the fairest trial possible. By abolishing voir dire and using a purely random selection of the population, you are pretty much guaranteeing that some proportion of the juries will be heavily biased against one side or the other before the trial begins. Simple probability dictates this will happen if the ability to weed out bias is not allowed in each case.

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Truly objective in what sense? All the stories I hear from people who had jury duty was that 45% were biased against the criminal, "if he was arrested, he is probably guilty." 45% were biased for the criminal "all cops are pigs nowadays, this kid didnt do anything." and 10% were the impartial.

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Originally Posted by HoreTore

I don't understand why people are so keen on juries.

I know if I was innocent and accused of a crime, I would much rather have my future decided by a team of educated judges who know what they're talking about as opposed to some random hicks rounded up at the bus stop.

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Excuse me while I laugh bitterly.

One reason why jury nullification is little known?

Maybe because some judges want to jail those who speak about it's existence:

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A court order signed this week prohibits the distribution of pamphlets or leaflets meant to influence jurors outside the Orange and Osceola courthouses.

The administrative order, signed by Chief Judge Belvin Perry on Monday, has sparked a fresh free-speech debate that could lead to legal challenges, questioning whether the order amounts to a "prior restraint" or a form of censorship.

The issue stems from representatives of the national nonprofit organization Fully Informed Jury Association distributing what they call jury "education" information outside the Orange County Courthouse.

The documents, aimed at sitting or potential jurors, advised that jury members may vote their conscience. The pamphlets also indicate members cannot be forced to obey a "juror's oath" and that individuals have the right to "hang" a jury if they do not agree with others on the panel.

Perry decided not to comment directly on the controversy, opting to let his order speak for itself.

That order says a "restriction upon expressive conduct and the dissemination of leaflets and other materials containing written information tending to influence summoned jurors as they enter the courthouse is necessary to serve the state's compelling interest in protecting the integrity of the jury system."

Perry's order notes that one judge in the Ninth Circuit covering Orange and Osceola determined that a jury panel had been "tampered with" after discovering members had the leaflets "containing information attempting to influence the jury."

Roger Roots, an attorney and member of FIJA's advisory board, said the nonprofit is actively seeking legal representation in Florida to see whether a challenge to Perry's order can or should be mounted.

"Chief Judge Perry's order is what is known as prior restraint — one of the most oppressive forms of censorship," Roots said in a statement sent to the Orlando Sentinel on Thursday. "The fact that the courthouse is an important public building where one would expect people to be free to advocate and speak about matters of the public interest makes Judge Perry's order especially suspect."

Perry's order says people engaging in the conduct he described may be in violation of Florida Statutes involving jury tampering and obstruction of justice, and may be found in contempt of court and face fines, jail time or both. It says that if deputies find people on the courthouse grounds engaging in the distribution of information described, they are to provide a copy of the order and instruct the individuals to "cease and desist immediately."

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CR

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Originally Posted by TinCow

Voir dire is not exclusive to the US. It is used in most western-style jury-oriented judicial systems. While voir dire can be abused, it also serves to ensure that the jury is truly objective and thus to give the fairest trial possible. By abolishing voir dire and using a purely random selection of the population, you are pretty much guaranteeing that some proportion of the juries will be heavily biased against one side or the other before the trial begins. Simple probability dictates this will happen if the ability to weed out bias is not allowed in each case.

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If Attorneys and Prosecutors were looking for non-biased jurors that might be more palatable but in every selection I have been a part of they seem to be trying to reinforce their side of the issue.

I have been called to jury duty more times than I can remember. After filling in the little questionnaires they use to judge impartiality it seems the better educated and more articulate are the first excused.

I know that I always answered the forms in a way to show I was impartial on any case that might come up but was usually in those excused early. And no, jury nullification was not a question on the form.

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Originally Posted by Crazed Rabbit

Excuse me while I laugh bitterly.

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You don't think I can give horror stories of jury conduct? A judge at least have to juwtify his reasoning, something a jury doesn't have to.

But they cab say stuff like this during a rape trial:
"Dressed like that, she knew the risk"
"no good girl would've come to that party"

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Originally Posted by HoreTore

You don't think I can give horror stories of jury conduct? A judge at least have to juwtify his reasoning, something a jury doesn't have to.

But they cab say stuff like this during a rape trial:
"Dressed like that, she knew the risk"
"no good girl would've come to that party"

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See Jury Selection...

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Originally Posted by a completely inoffensive name

Truly objective in what sense? All the stories I hear from people who had jury duty was that 45% were biased against the criminal, "if he was arrested, he is probably guilty." 45% were biased for the criminal "all cops are pigs nowadays, this kid didnt do anything." and 10% were the impartial.

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Originally Posted by Fisherking

If Attorneys and Prosecutors were looking for non-biased jurors that might be more palatable but in every selection I have been a part of they seem to be trying to reinforce their side of the issue.

I have been called to jury duty more times than I can remember. After filling in the little questionnaires they use to judge impartiality it seems the better educated and more articulate are the first excused.

I know that I always answered the forms in a way to show I was impartial on any case that might come up but was usually in those excused early. And no, jury nullification was not a question on the form.

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These are both fair and accurate comments. Perhaps "truly objective" is the wrong term to use. The point is that voir dire keeps juries balanced. There may be bias, but in most cases the bias is evenly distributed so that neither side gains an advantage. I agree this is not ideal, but I simply do not see an option for a better system. Without having each individual jury vetted and balanced like this, many will invariably end up biased against one side or the other. That produces unfair trials and defeats the whole purpose of justice and equity. Despite the romantic notions, a purely random selection of US citizens will not produce a fair jury, because every person has innate biases. Thus, in order to keep the jury fair to both sides, it must be subjected to additional balancing beyond pure random selections.