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Thread: Nullifying nullification. ‘If you do not have a reasonable doubt … then you will ....

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    Nullifying nullification. ‘If you do not have a reasonable doubt … then you will ....

    ‘If you do not have a reasonable doubt … then you will enter a verdict of guilty’
    http://www.washingtonpost.com/news/v...ict-of-guilty/
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    Campaign Veteran skidmark's Avatar
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    Well, whoda thunk it?

    Chalk one more up for the good guys.

    stay safe.
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    Regular Member twoskinsonemanns's Avatar
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    "Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge’s instruction in this case went too far in the other direction."

    I did not realize that juries were not automatically told of their option to nullify.
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    Quote Originally Posted by twoskinsonemanns View Post
    "Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge’s instruction in this case went too far in the other direction."

    I did not realize that juries were not automatically told of their option to nullify.
    It is a carefully hidden, even denied, fact. A suspicion of pro-nullification will likely get one premptively excused from jury service.
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    Every state that I looked at in respect to jury instructions ... none require that jury nullification be disclosed and instructions can be such to strongly discourage nullification.

    See... the power in the jury box is actually in the hands of the people but the gov't does not want people to know that...

    I've had attnys tell me that if I nullify I would be arrested ... I tell them I already did, gonna arrest me? They never do.

    But people are mostly stupid ... they are happy to be controlled by gov't officials.

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    Regular Member Logan 5's Avatar
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    Last time I was on a small municipal jury and when I and another guy pulled the jury nullification line, the bailiff threatened to arrest us and the guy quipped "Isn't that jury tampering? Isn't that a felony?" The court accepted the nullification.

    That was in spring of '05.
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    Quote Originally Posted by Logan 5 View Post
    [ ... ] the jury nullification line, [ ... ]
    What is the jury nullification line? I thought jury nullification was a juror voting his conscience what ever the jury oath/instructions may have been.
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    Jury nullification is the quintessential example of a people needing to know their rights in order to exercise them.

    The truly sad and IMO, flat out wrong, aspect of this is that as FIJA has recently taken to pointing out, it isn't so much the jury members that a have a right to nullify as it is the criminal defendant who should enjoy a right to a jury that knows its legal power to nullify if rendering a guilty verdict would offend its collective conscience and sense of justice. I believe criminal defendants should have the right to have the jury instructed in their legal power to acquit for any reason, despite the law and evidence if that is what their collective conscience and sense of justice require of them.

    Charles

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    Regular Member twoskinsonemanns's Avatar
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    Quote Originally Posted by Logan 5 View Post
    Last time I was on a small municipal jury and when I and another guy pulled the jury nullification line, the bailiff threatened to arrest us and the guy quipped "Isn't that jury tampering? Isn't that a felony?" The court accepted the nullification.

    That was in spring of '05.
    what the gollywot?!

    wow. why would the bailiff care anyway? His "stats" surely aren't affected by a nullification
    Last edited by twoskinsonemanns; 12-31-2014 at 03:56 PM. Reason: dafuq is unacceptable language
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    Quote Originally Posted by utbagpiper View Post
    Jury nullification is the quintessential example of a people needing to know their rights in order to exercise them. [ ... ] I believe criminal defendants should have the right to have the jury instructed in their legal power to acquit for any reason, despite the law and evidence if that is what their collective conscience and sense of justice require of them.
    Jury instructions are copyright usually written by the local bar, not subject to public whim.

    A fully informed juror must not volunteer unasked information, keep his mouth shut and vote his conscience.
    I am responsible for my writing, not your understanding of it.

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    Quote Originally Posted by Nightmare View Post
    Jury instructions are copyright usually written by the local bar, not subject to public whim.
    Jury instructions can and should be mandated or at least confined by statute as was done a couple of years back in New Hampshire.

    The private association that is the bar is given far too much authority and control over the judicial process and this needs to be reined in.

    Quote Originally Posted by Nightmare View Post
    A fully informed juror must not volunteer unasked information, keep his mouth shut and vote his conscience.
    That is certainly the current situation. I seem to recall (cannot find citations) that judges have removed pro-nullification jurors after complaints from fellow jurors. As such, even once one is in the jury room, one may need to avoid revealing his willingness to nullify the law and instead focus on any doubt about the evidence. I suspect that in such cases, a hung jury is the best outcome to expect with the full ability for the prosecutor to retry the case with a new jury.

    In contrast, with proper statutory protections, a defendant could argue for the jury to nullify and any jury member could safely advocate a nullification position to his fellow jurors during deliberation.

    Charles
    Last edited by utbagpiper; 12-31-2014 at 02:53 PM.

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    Accomplished Advocate color of law's Avatar
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    The origins of “reasonable doubt” lie in a forgotten world of pre-modern Christian theology. At its origins, “reasonable doubt” rule was not intended to protect the accused. Instead, it had a significantly different, and distinctly Christian, purpose. The “reasonable doubt” formula was originally concerned with protecting the souls of the jurors against damnation. Convicting an innocent defendant was regarded, in the older Christian tradition, as a potential mortal sin. The purpose of the “reasonable doubt” instruction was to address this frightening possibility, reassuring jurors that they could convict the defendant without risking their own salvation, as long as their doubts about guilt were not “reasonable.”

    The phrase “reasonable doubt” does not actually appear in the Constitution. The Court has made it clear that the phrase “reasonable doubt” can be assigned no definitive meaning. And the Court has made it clear that an error in defining “reasonable doubt” is never harmless. In other words, a judge attempting to define “reasonable doubt” for a juror would land the judge in hot water.

    “Reasonable doubt” is nothing more than “nullification.”

    So, if you doubt my reasoning, your doubt would not be harmless.

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    Quote Originally Posted by color of law View Post
    The origins of “reasonable doubt” lie in a forgotten world of pre-modern Christian theology. At its origins, “reasonable doubt” rule was not intended to protect the accused.
    Fascinating. Do you have a citation where I might read more on this? I'm always fascinated by the ways in which religion and religious tradition have influenced our law and society.

    Quote Originally Posted by color of law View Post
    “Reasonable doubt” is nothing more than “nullification.”
    I don't know that I'd go quite that far. To me, "reasonable doubt" is a legitimate question of whether the accused committed the crime of which he is accused. It is failure of the prosecution to meet its burden of proof.

    I could always conjure up some unreasonable doubt like aliens doing it, or the CIA staking the whole thing including faked fingerprints, faked video footage, etc, etc, etc. And I'm not saying that the CIA couldn't do that. It's just that in most cases such a claim by the defense, or such a notion on the part of jurors would not be reasonable.

    Charles

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    The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial

    http://historynewsnetwork.org/article/47018

    http://www.amazon.com/Origins-Reason.../dp/0300116004

    The phrase is beyond a reasonable doubt. Beware the twist in logic.
    Last edited by Nightmare; 12-31-2014 at 07:27 PM.
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    Regular Member Logan 5's Avatar
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    Quote Originally Posted by Nightmare View Post
    What is the jury nullification line? I thought jury nullification was a juror voting his conscience what ever the jury oath/instructions may have been.
    The man was speeding, and when pulled over it turned out he had no driver's license or insurance. Guilty guilty guilty. Right? Not so fast.

    First, it wasn't his car, it was his daughter's car. This was verified in court
    Second, the car, for whatever reason, broke down. His daughter left him with the car on a mountain highway, hitching a ride to town to get "whatever it was" to fix it. That happened in the AM. It was now late PM, and she had not returned. This was verified in court

    So by the time the sun was going down he crawled underneath the hood, found the problem, fixed it, and concerned about his daughter, he was in panic stage. So he drove to town. After he was arrested for no DL or insurance, the officer checked everything the guy said. Daughter was picked up by an ex BF and she ended up at his place, got drunk, got nailed, and was asleep while her dad was by the car in the mountains (30 miles away).

    Ok.

    So we looked at it, and this was the time of year it would get down to zero or below zero with the kind of weather that was going on there. The dad lost his DL because of DUI, yes. But, he can stay up there, worried about his daughter and possibly freeze to death or take the risk. Daughter lost the car because she not only didn't have the money to pay for the impound, she didn't have the money for insurance.

    The jury chalked up to a bad set of circumstances. The dad had been keeping his nose clean and complying with his probation and everything, and while he had a record, he also was known for being truthful.

    So we told the court the officer was in error because he verified everything we saw, but he still chose to arrest. The arrest was unlawful. The officer ended up with a reprimand for that, BTW. As for the speeding, the speed limit sign was obscured by snow.

    Having a badge is not a matter of writing someone a ticket just because you can, but the art of discernment. Yeah, this guy broke the law, but why did he? Sometimes you're in a spot where you have a choice between two evils.
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    Regular Member twoskinsonemanns's Avatar
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    Quote Originally Posted by Logan 5 View Post
    The man was speeding, and when pulled over it turned out he had no driver's license or insurance. Guilty guilty guilty. Right? Not so fast.

    First, it wasn't his car, it was his daughter's car. This was verified in court
    Second, the car, for whatever reason, broke down. His daughter left him with the car on a mountain highway, hitching a ride to town to get "whatever it was" to fix it. That happened in the AM. It was now late PM, and she had not returned. This was verified in court

    So by the time the sun was going down he crawled underneath the hood, found the problem, fixed it, and concerned about his daughter, he was in panic stage. So he drove to town. After he was arrested for no DL or insurance, the officer checked everything the guy said. Daughter was picked up by an ex BF and she ended up at his place, got drunk, got nailed, and was asleep while her dad was by the car in the mountains (30 miles away).

    Ok.

    So we looked at it, and this was the time of year it would get down to zero or below zero with the kind of weather that was going on there. The dad lost his DL because of DUI, yes. But, he can stay up there, worried about his daughter and possibly freeze to death or take the risk. Daughter lost the car because she not only didn't have the money to pay for the impound, she didn't have the money for insurance.

    The jury chalked up to a bad set of circumstances. The dad had been keeping his nose clean and complying with his probation and everything, and while he had a record, he also was known for being truthful.

    So we told the court the officer was in error because he verified everything we saw, but he still chose to arrest. The arrest was unlawful. The officer ended up with a reprimand for that, BTW. As for the speeding, the speed limit sign was obscured by snow.

    Having a badge is not a matter of writing someone a ticket just because you can, but the art of discernment. Yeah, this guy broke the law, but why did he? Sometimes you're in a spot where you have a choice between two evils.
    This is not what I think of when I think of nullification. You are basically saying due to special circumstances the cop should have allowed the man to break the law. I always thought of nullification was refusing to convict someone of breaking a law that should not be a law, not a law that should be enforced on some but not others. I admit I need to research and assure myself of the true idea of nullification.
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    Quote Originally Posted by twoskinsonemanns View Post
    This is not what I think of when I think of nullification. You are basically saying due to special circumstances the cop should have allowed the man to break the law. I always thought of nullification was refusing to convict someone of breaking a law that should not be a law, not a law that should be enforced on some but not others. I admit I need to research and assure myself of the true idea of nullification.
    It can be both. States and their agencies can exercise the nullification principals of '98. I would say this could also apply to local municipalities nullifying state mandates.
    I am not anti Cop I am just pro Citizen.

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    I never thought of a cop not arresting anyone to be "nullification" but just an executive branch employee exercising his right, under separation of powers between branches, not to follow instructions of the legislative branch.

    It has the same outcome but for different reasons and the treatment of the citizen is greatly different (no trial etc).

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    Accomplished Advocate color of law's Avatar
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    Quote Originally Posted by Nightmare View Post
    http://historynewsnetwork.org/article/47018

    http://www.amazon.com/Origins-Reason.../dp/0300116004

    The phrase is beyond a reasonable doubt. Beware the twist in logic.
    Why buy the book when you can read his original law review publication.
    http://digitalcommons.law.yale.edu/c...ext=fss_papers

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    Getting a jury that knows about jury nullification? I just hope I get jury members that know the name of the continent we're on and can count down from 10 to 1.

    That's one of the only major flaws in the jury system, it doesn't account for so many people being complete ******* idiots.
    Advocate freedom please

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    Quote Originally Posted by stealthyeliminator View Post
    Getting a jury that knows about jury nullification? I just hope I get jury members that know the name of the continent we're on and can count down from 10 to 1. That's one of the only major flaws in the jury system, it doesn't account for so many people being complete ******* idiots.
    It must be a jury of your peers!
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    BLACK'S LAW DICTIONARY 6th. ed.
    Nullification. The state or condition of being void; without legal effect or status. Also, the act which produces such effect. See Void.
    Jury in criminal case possesses de facto power of "nullification," to acquit defendant regardless of strength of evidence against him. Cargill v. State, 255 Ga. 616, 340 S.E.2d 891, 914.

    Void. Null; ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it was intended. Hardison v. Gledhill, 72 Ga.App. 432, 33 S.E.2d 921, 924...

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    Quote Originally Posted by stealthyeliminator View Post
    Getting a jury that knows about jury nullification?....
    I'm still trying to figure out why defense lawyers don't educate the jury about it, and why, as a whole, they don't demand the right to do so on every medium to educate the public (their jury pool) as well.
    Last edited by MAC702; 01-01-2015 at 11:54 AM.
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    Once it is a jury, or a jury pool, it falls under the jurisdiction of the court and the court, the presiding judge, controls access. That does leave open the question of educating the general public.
    I am responsible for my writing, not your understanding of it.

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    Campaign Veteran MAC702's Avatar
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    Quote Originally Posted by Nightmare View Post
    Once it is a jury, or a jury pool, it falls under the jurisdiction of the court and the court, the presiding judge, controls access. That does leave open the question of educating the general public.
    But, an attorney's JOB is to educate the jury in the courtroom. The prosecutor educates them on what the law IS, as well as how he knows the defendant broke it. The defense attorney educates them as to how the prosecutor may have gotten it wrong, as well as on other laws which may excuse the actions of the defendant. I see educating the jury as to the law's eligibility to be nullified as no different. Of course a judge may object. But the fact that so few defense lawyers attempt it, is what has given the judges the false power that they can get away with such an objection. It wouldn't take very many defense attorneys held in contempt and juries excused or cases thrown out for mistrials, before the system changed for the better. Defense teams need to start sacrificing some of the junior partners for some jail time to make the world a better place. Plus, they can probably sue later, too.
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