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  #1  
Old 02-25-2011, 02:55 PM
Whack-a-Mole Whack-a-Mole is offline
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Guy arrested for handing out pamphlets on jury nullifaction at courthouse. Guilty of jury tampering?

I was reading the following article and thought it raised an interesting question.

Quote:
Since 2009, Mr. Heicklen has stood there and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.

That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates the law against jury tampering.

SOURCE: http://www.nytimes.com/2011/02/26/ny...y.html?_r=2&hp
I think it is safe to say the basic facts, as given, are not in dispute. Mr. Heicklen was indeed handing out pamphlets on jury nullification in front of court houses.

The question for Dopers is do you think the government is right and he is guilty of jury tampering?

For my part I think the courts are stepping on his First Amendment rights. I realize the legal system dislikes the notion of jury nullification. Nevertheless I am pretty sure it is not illegal to tell people about it. Mr. Heicklen is not encouraging anyone to break the law.

As to jury tampering it is noted in the article he would hand out the pamphlets to anyone he could (with the admitted hope he'd hand it to incoming jurors but he could not know who they were). He was not targeting a specific set of jurors or trying to influence any particular case. Does the law cover tampering with jurors in general? Is it "tampering" with jurors by telling them something it is not illegal to tell them? If you hand out pamphlets promoting your pizza place in front of a courthouse hopping the jurors will order in some of your pizza is that tampering?

I'm not seeing it myself.

Last edited by Whack-a-Mole; 02-25-2011 at 02:56 PM..
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Old 02-25-2011, 03:02 PM
Chronos Chronos is online now
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Wouldn't tampering require something specific to a particular case? What he's suggesting could apply to any case, and could go either way in any of them. If he were saying specifically that the jury should nullify in the case of Smith vs. the State of North Tacoma, I could see an argument. Or if he were saying that juries should vote their conscience to lock up dangerous murderers even if the evidence isn't strong enough, I could see that too. But saying that juries should vote their conscience, all the time, no matter where it leads? I'm not seeing that.
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Old 02-25-2011, 03:02 PM
Heyoka13 Heyoka13 is offline
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I am not an attorney.


(Praise God)


However, just speculating here, wouldn't one of the specifics of that crime be that his actions would have to pertain to a particular case?

By passing out information on apparently all cases, I am having difficulty distinguishing his conduct from free speech.


(not that I am a big fan of jury nullification, btw)
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Old 02-25-2011, 03:03 PM
Heyoka13 Heyoka13 is offline
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Impressive, simultaneous posts making the same point.

I love it when that happens.
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Old 02-25-2011, 03:07 PM
Oakminster Oakminster is online now
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The guy is 78 years old, and apparently off his rocker. Sounds like he's hooked up with some sort of nutjob conspiracy theory group, and distributes their crap along with his own. He's been cited for doing this half a dozen times before, and it hasn't made much of an impression on him.

Worse, he's acting as his own lawyer, so odds of conviction appear to be high.

The most damning fact I saw in the article is he carries a sign that says something like "Jury Information", and admits some people think he has some sort of official sanction. Jurors need to follow the instructions they are given by the Judge, period. They are to base their verdict on the evidence presented at trial. They should not rely on their own "research" into legal or factual matters.
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Old 02-25-2011, 03:32 PM
Whack-a-Mole Whack-a-Mole is offline
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Quote:
Originally Posted by Oakminster View Post
The guy is 78 years old, and apparently off his rocker. Sounds like he's hooked up with some sort of nutjob conspiracy theory group, and distributes their crap along with his own. He's been cited for doing this half a dozen times before, and it hasn't made much of an impression on him.

Worse, he's acting as his own lawyer, so odds of conviction appear to be high.

The most damning fact I saw in the article is he carries a sign that says something like "Jury Information", and admits some people think he has some sort of official sanction. Jurors need to follow the instructions they are given by the Judge, period. They are to base their verdict on the evidence presented at trial. They should not rely on their own "research" into legal or factual matters.
Nutjobs have 1st Amendment rights too last I checked.

As for jurors following the instructions of the judge "period" this is not a universally held view.

Quote:
Suppose that, after all the precautions taken to avoid it, a difference of sentiment takes place between the judges and the jury, with regard to a point of law: suppose the law and the fact to be so closely interwoven, that a determination of one must, at the same time, embrace the determination of the other: suppose a matter of this description to come in trial before a jury—what must the jury do?—The jury must do their duty, and their whole duty: they must decide the law as well as the fact.

This doctrine is peculiarly applicable to criminal cases; and from them, indeed, derives its peculiar importance. When a person is to be tried for a crime, the accusation charges against him, not only the particular fact which he has committed, but also the motive, to which it owed its origin, and from which it receives its complexion. The first is neither the only, nor the principal object of examination and discussion. On the second, depends the innocence or criminality of the action. The verdict must decide not only upon the first, but also, and principally, upon the second: for the verdict must be coextensive and commensurate with the charge.

It may seem, at first view, to be somewhat extraordinary, that twelve men, untutored in the study of jurisprudence, should be the ultimate interpreters of the law, with a power to overrule the directions of the judges, who have made it the subject of their long and elaborate researches, and have been raised to the seat of judgment for their professional abilities and skill.

But a deeper examination of the subject will reconcile us to what, at first, may appear incongruous. In criminal cases, the design, as has been already intimated, is closely interwoven with the transaction; and the elucidation of both depends on a collected view of particulars, arising not only from the testimony, but also from the character and conduct of the witnesses, and sometimes also from the character and conduct of the prisoner. Of all these, the jury are fittest to make the proper comparison and estimate; and, therefore, it is most eligible to leave it to them, after receiving the direction of the court in matters of law, to take into their consideration all the circumstances of the case, the intention as well as the facts, and to determine, upon the whole, whether the prisoner has or has not been guilty of the crime, with which he is charged.

SOURCE: Collected Works of James Wilson (James Wilson signed the Declaration of Independence, helped draft the US Constitution and was one of the six original Supreme Court justices among other bonafides)
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Old 02-25-2011, 03:57 PM
Acid Lamp Acid Lamp is offline
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Quote:
Originally Posted by Oakminster View Post
Jury Information", and admits some people think he has some sort of official sanction. Jurors need to follow the instructions they are given by the Judge, period. They are to base their verdict on the evidence presented at trial. They should not rely on their own "research" into legal or factual matters.
Snip.

I couldn't disagree more. The whole POINT to having a jury is for the public to decide if the person is guilty, and to make their voice known on the case and the law by doing so. Other wise they are nothing more than rubber stampers. If they decide to nullify, it is their choice to do so. Considering laws like 3 strikes and mandatory minimums for minor drug offenses are now more common, this is an important direct check on the power of the judicial system.
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Old 02-25-2011, 03:58 PM
Happy Fun Ball Happy Fun Ball is online now
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Quote:
Originally Posted by Oakminster View Post
Jurors need to follow the instructions they are given by the Judge, period. They are to base their verdict on the evidence presented at trial. They should not rely on their own "research" into legal or factual matters.
This seems to run afoul the text of the 6th amendment, or are you saying that the meaning of the sixth amendment is:

Quote:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State following to the letter the instructions of the presiding judge and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Note: Text added.
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Old 02-25-2011, 04:03 PM
Oakminster Oakminster is online now
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Quote:
Originally Posted by Acid Lamp View Post
Snip.

Considering laws like 3 strikes and mandatory minimums for minor drug offenses are now more common, this is an important direct check on the power of the judicial system.
The jury is the trier of fact. Did Defendant do X? It is not the place of the jury to decide what consequences, if any, should be attached to doing X---with the exception of death penalty cases, where the jury first decides whether the defendant is guilty, and then hears more testimony before deciding whether the Defendant should be sentenced to death.

At least in my state, the jury is not going to know whether Defendant is on his third strike, or what, if any, mandatory minimum penalties apply. In a criminal case, they are to decide if the State has proved guilt beyond a reasonable doubt. If they so find, then the Judge will impose sentence according to the law--again with the exception of death penalty cases.
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Old 02-25-2011, 04:05 PM
Oakminster Oakminster is online now
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Quote:
Originally Posted by L. G. Butts, Ph.D. View Post
This seems to run afoul the text of the 6th amendment, or are you saying that the meaning of the sixth amendment is:



Note: Text added.
Nothing I said contradicts the actual text of the Sixth Amendment.
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Old 02-25-2011, 04:11 PM
Happy Fun Ball Happy Fun Ball is online now
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Yeah, maybe, but a juries right to jury nullification (for instance due to a law being unjustly applied) regardless of the facts of the case has long been recognized. Your original statement that they need to follow the instructions they are given by the Judge is flat out wrong.

Last edited by Happy Fun Ball; 02-25-2011 at 04:12 PM..
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Old 02-25-2011, 04:12 PM
Ravenman Ravenman is online now
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Quote:
Originally Posted by L. G. Butts, Ph.D. View Post
This seems to run afoul the text of the 6th amendment, or are you saying that the meaning of the sixth amendment is:
Honest question here: for those who support jury nullification, is there some text of the Constitution upon which one's hat might hang to state that nullification is a matter of constitutional, not criminal law?

As far as I know, the Constitution is silent on the issue, which would leave me to believe that the federal government or the states may make laws on whether or not nullification can be a part of a jury's deliberation. I would say that quoting one (or a few) of the Founding Fathers doesn't really have any basis in the conversation, as their words are not law, the Constitution and acts of the legislature are. (To put it another way, finding a quote from Benjamin Franklin saying that whores and liquor are good things does not invalidate laws against prostitution and bootlegging.)

I'm undecided on the matter in the OP. My first thought is that if there were an actual case of a juror disregarding a judge's instructions based on the pamphlet, the prosecution may have a case. If the prosecution is simply bothered by a whacko handing out pamphlets and what *could* happen, then I'm not so sure there's been a crime.
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Old 02-25-2011, 04:17 PM
Acid Lamp Acid Lamp is offline
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Quote:
Originally Posted by Oakminster View Post
The jury is the trier of fact. Did Defendant do X? It is not the place of the jury to decide what consequences, if any, should be attached to doing X---with the exception of death penalty cases, where the jury first decides whether the defendant is guilty, and then hears more testimony before deciding whether the Defendant should be sentenced to death.

At least in my state, the jury is not going to know whether Defendant is on his third strike, or what, if any, mandatory minimum penalties apply. In a criminal case, they are to decide if the State has proved guilt beyond a reasonable doubt. If they so find, then the Judge will impose sentence according to the law--again with the exception of death penalty cases.
Understood, but that's kind of the point. The Jury is responsible for the fate of the defendant. As such, they have to consider the consequences of a "guilty" verdict. Even if they don't know, it's almost certainly going to be jail time, and a convicted felon will have a very hard time erasing that stigma. As far as I'm concerned it is intrinsic to weighing in with a verdict. In cases where the offense is controversial I can easily see a jury placing even more weight upon that factor when making their decision. I know I certainly would.

For example, let's say I'm on a jury hearing a criminal possession case. They have shown thoroughly that the defendant did indeed have more than enough pot on him to qualify for a felony. I know that regardless of number of offenses, that is serious business. Considering that I do not support the law in this matter, It might be very difficult for me to return a guilty verdict. Especially so if the accused is just a random guy with an otherwise clean record. Yes, he did have it; and yes that is against the law. A law that I feel is draconian, wrong, and not worth ruining someones life over. While it isn't really the correct forum for me to exercise my opinion, it does allow me to make a bold statement and follow my judgment.

In a perfect world, we could directly poll the public and simply follow the dictates of their opinion on such matters. In the real world, we often do not get to do so.
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Old 02-25-2011, 04:20 PM
Happy Fun Ball Happy Fun Ball is online now
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Nowhere in the Constitution is it stated that Judges have the power and right to instruct a jury and thus control a trial, any attempt to give them this power is reading into the Constitution. The right to jury nullification, at least insofar as I understand it, is rooted in the sixth amendment to the constitution which gives the right to be judged by a jury of your peers (paraphrased). How your peers reach their judgement cannot be influenced by the government (i.e. judges) without running afoul this right.

From the 4th circuit decision U.S. v. Moylan:

Quote:
We recognize, as appellants urge, 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. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

Last edited by Happy Fun Ball; 02-25-2011 at 04:21 PM..
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Old 02-25-2011, 04:20 PM
Giles Giles is online now
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Suppose some frequenter of the SDMB read Dr Butts' postings in this thread, and next week was called to jury duty. Could Dr Butts be charged with jury tampering? Or is he too remote from the courthouse?
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Old 02-25-2011, 04:26 PM
Whack-a-Mole Whack-a-Mole is offline
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Quote:
Originally Posted by Ravenman View Post
Honest question here: for those who support jury nullification, is there some text of the Constitution upon which one's hat might hang to state that nullification is a matter of constitutional, not criminal law?
I'd say the 6th Amendment.

It grants the right to a trial by jury and the jury's decision is final.

If a jury nullifies (and it is an acquittal) there is nothing a judge can do* (that I am aware of). Defendant goes free. Jury cannot be penalized or arrested for nullifying.

Nothing says they can't so they can.

*IANAL but I do not think a judge can set aside a finding of not guilty by a jury and declare the defendant guilty...no matter how misguided the judge thinks the jury is.
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Old 02-25-2011, 04:27 PM
Oakminster Oakminster is online now
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Originally Posted by L. G. Butts, Ph.D. View Post
Your original statement that they need to follow the instructions they are given by the Judge is flat out wrong.
No, it isn't. In fact, jurors swear an oath to follow the Judge's instructions.

For Acid Lamp, a juror that feels that way should disclose as much during voir dire, and will likely be challenged for cause and then dismissed. A juror that lies about having such beliefs is guilty of perjury.
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Old 02-25-2011, 04:40 PM
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Quote:
Originally Posted by Oakminster View Post
No, it isn't. In fact, jurors swear an oath to follow the Judge's instructions.

For Acid Lamp, a juror that feels that way should disclose as much during voir dire, and will likely be challenged for cause and then dismissed. A juror that lies about having such beliefs is guilty of perjury.
Bullshit. I don't remember reading anywhere in the Constitution about jurors having to swear an oath in order to be a member of a jury. From Wikipedia (I know, Wikipedia is lame, but I am at work and cannot give this debate my full effort):

Quote:
In the United States, a federal juror's oath usually states something to the effect of, "Do you and each of you solemnly swear that you will well and truly try and a true deliverance make between the United States and ______, the defendant at the bar, and a true verdict render according to the evidence, so help you God?" The oath leads some jurors to believe that they do not have a right to exercise jury nullification. Joseph Duane notes:[1]
Quote:
A jury's latitude to nullify is deliberately protected by the Constitution. Neither the tradition nor the wording of the oath administered to the jurors, on the other hand, is so dictated. In federal court it is not even prescribed by statute. It is simply an old tradition judges have made up. If the wording of the oath poses some conflict with the jury's constitutional prerogative to nullify, it is clear which one must yield the right of way.

Last edited by Happy Fun Ball; 02-25-2011 at 04:40 PM..
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Old 02-25-2011, 04:40 PM
Oakminster Oakminster is online now
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Originally Posted by L. G. Butts, Ph.D. View Post

From the 4th circuit decision U.S. v. Moylan:
Yet you ignore other parts of your own cite, including paragraphs 16-18:

The Supreme Court, in the landmark case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), affirmed the right and duty of the judge to instruct on the law, and since that case the issue has been settled for three-quarters of a century. Justice Harlan's scholarly opinion traced the history of the rights of juries in criminal cases. He distinguished Brailsford as a civil case and therefore not controlling in criminal trials. Justice Harlan further deprecated that decision, going to the extreme of questioning whether it was in fact reported properly, since he doubted that Chief Justice Jay could ever have held such an opinion even in a civil case. The Justice concluded finally that
17

Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as, in their judgment, were applicable to the particular case being tried. * * *
18

But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. * * * We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.13


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Old 02-25-2011, 04:55 PM
Tilley Tilley is offline
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>>A law that I feel is draconian, wrong, and not worth ruining someones life over.<<

Presumably you'd never be put into this position, because you'd be asked during the voir dire process, where jurors are selected for each particular case.

But the broader question is: Does the principle of jury nullification give you the "right" to not disclose this opinion when asked? Every juror has the "power" to vote in accord with his/her own conscience, regardless of the law or the instructions of the judge. Does he/she have this "right," and does every accused have the "right" to have such jurors sitting in judgement of his case?

Juries are often referred to as "the conscience of the community." This maxim undoubtedly acknowledges something more than just a fact-finding body, given the long history of "jury nullification" in American jurisprudential history, beginning with colonial America.

Judges and prosecutors don't like this de facto power, but they've had to deal with it ever since John Peter Zenger.
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Old 02-25-2011, 04:57 PM
Acid Lamp Acid Lamp is offline
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I'm of two minds about the Voir Dire process. While I think It may be a useful tool to weed out crazies and people with unreasonable positions, (like racists, religious nuts etc..) I'm not certain that it should be allowed beyond that simple net. If only given the choice between having it as it is now, and not having it at all and rolling the dice, I'd take the dice in today's world. YOu have the right to be judged by a jury made from the community, and it should reasonably reflect that. Neither side should be able to load the jury.

Last edited by Acid Lamp; 02-25-2011 at 04:58 PM..
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Old 02-25-2011, 05:00 PM
Happy Fun Ball Happy Fun Ball is online now
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Quote:
Originally Posted by Oakminster View Post
Yet you ignore other parts of your own cite, including paragraphs 16-18:

The Supreme Court, in the landmark case of Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895), affirmed the right and duty of the judge to instruct on the law, and since that case the issue has been settled for three-quarters of a century. Justice Harlan's scholarly opinion traced the history of the rights of juries in criminal cases. He distinguished Brailsford as a civil case and therefore not controlling in criminal trials. Justice Harlan further deprecated that decision, going to the extreme of questioning whether it was in fact reported properly, since he doubted that Chief Justice Jay could ever have held such an opinion even in a civil case. The Justice concluded finally that
17

Public and private safety alike would be in peril if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves. Under such a system, the principal function of the judge would be to preside and keep order while jurymen, untrained in the law, would determine questions affecting life, liberty, or property according to such legal principles as, in their judgment, were applicable to the particular case being tried. * * *
18

But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded as the right of counsel to dispute before the jury the law as declared by the court. * * * We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.13


Was the rolleyes really necessary? Really?

From the Supreme Court case being referenced in what you quoted (Sparf and Hansen v. United States (finding 26)):

Quote:
The general question as to the duty of the jury to receive the law from the court is not concluded by any direct decision of this court. But it has been often considered by other courts and by judges of high authority; and, where its determination has not been controlled by specific constitutional or statutory provisions expressly empowering the jury to determine both law and facts, the principle by which courts and juries are to be guided in the exercise of their respective functions has become firmly established. If this be true, this court should not announce a different rule, unless impelled to do so by reasons so cogent and controlling that they cannot properly be overlooked or disregarded. Some of the members of this court, after much consideration, and upon an extended review of the authorities, are of opinion that the conclusion reached by this court is erroneous, both upon principle and authority. For this reason, and because the question is of great importance in the administration of justice, and also involves human life, we deem it appropriate to state with more fullness than under other circumstances would be necessary the grounds upon which our judgment will rest, looking first to cases determined in the courts of the United States.
I am happy to debate this topic all night, this is one of the few areas where I fully agree with conservatives of the Libertarian stripe. Unfortunately I need to finish what I am doing here, but I'll come back to this thread later.

Last edited by Happy Fun Ball; 02-25-2011 at 05:01 PM..
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Old 02-25-2011, 05:20 PM
Arnold Winkelried Arnold Winkelried is offline
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This is turning into a jury nullification debate!

Our esteemed colleague, SDStaff Bricker, has this to say:
Quote:
Originally Posted by Bricker
Is it legal for juries to ignore the law and substitute their own judgment? Yes, in the sense that there can be no criminal penalty for doing so and no reversal of a jury’s decision to acquit. Once a verdict is delivered, the double jeopardy clause protects the accused from reprosecution even if the jury’s verdict was a result of nullification. And a juror who steadfastly maintains that he simply wasn’t convinced by the evidence cannot be accused of any wrongdoing, no matter how thin his story may be. So while ignoring the law is not what the jury is supposed to do, the practical fact is that jurors cannot be stopped from doing it. In that sense, it’s legal.
To address the OP: I can't see how the person would be guilty of jury tampering. But I will have to go and read the article carefully.
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Old 02-25-2011, 05:34 PM
suranyi suranyi is offline
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Quote:
Originally Posted by L. G. Butts, Ph.D. View Post
Bullshit. I don't remember reading anywhere in the Constitution about jurors having to swear an oath in order to be a member of a jury. From Wikipedia (I know, Wikipedia is lame, but I am at work and cannot give this debate my full effort):
Whenever I've served on a jury, I've always had to swear an oath of some kind. This is in California.

I know that debates over jury nullification always creates strong emotions, but is it really that big a deal? There aren't that many cases where the existance of the law itself is at issue in a criminal proceeding. Mostly drug possession cases, I guess. But those hardly ever go to trial, at least in California.
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Old 02-25-2011, 05:47 PM
Oakminster Oakminster is online now
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Originally Posted by L. G. Butts, Ph.D. View Post

I am happy to debate this topic all night, this is one of the few areas where I fully agree with conservatives of the Libertarian stripe.
Ummm..I am a conservative of the libertarian stripe (small "l" intentional). If you agree, why are you arguing?
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Old 02-25-2011, 05:55 PM
Oakminster Oakminster is online now
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Originally Posted by suranyi View Post

I know that debates over jury nullification always creates strong emotions, but is it really that big a deal?
The ghost of Emmett Till thinks jury nullification sucks. I'd be willing to bet his mother feels the same way.
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Old 02-25-2011, 06:18 PM
suranyi suranyi is offline
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Quote:
Originally Posted by Oakminster View Post
The ghost of Emmett Till thinks jury nullification sucks. I'd be willing to bet his mother feels the same way.
Indeed, I'm more inclined to think that in real cases jury nullification is used too often, rather than not enough. Cases where jury nullification might be a good thing just don't come up that often in real jury trials.

Last edited by suranyi; 02-25-2011 at 06:21 PM..
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Old 02-25-2011, 06:23 PM
Acid Lamp Acid Lamp is offline
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Originally Posted by suranyi View Post
Whenever I've served on a jury, I've always had to swear an oath of some kind. This is in California.

I know that debates over jury nullification always creates strong emotions, but is it really that big a deal? There aren't that many cases where the existance of the law itself is at issue in a criminal proceeding. Mostly drug possession cases, I guess. But those hardly ever go to trial, at least in California.
Why not try it out with a far less controversial topic?

Say we have a case of assault. During the trial the jury is able to watch a security video that clearly demonstrates that the defendant did partake in the fight, and that they were also severely and rather brutally antagonized into it. They decide that the actions of the plaintiff were so beyond socially acceptable that it was a clear case of "He had it coming" and find the defendant not guilty. They COULD turn in a verdict of guilty, and probably should. They also know that the judge knows and understands the circumstances. However, it could be that judge's hands are tied in terms of sentencing. They don't want the defendant to go to jail, and have decided to skip the whole issue and nullify.

Don't forget that the whole jury must decide, it isn't a unilateral decision. That is very rare.
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Old 02-25-2011, 06:29 PM
Oakminster Oakminster is online now
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They don't want the defendant to go to jail, and have decided to skip the whole issue and nullify.
They don't have to nullify. They can accept his claim of self defense.
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Old 02-25-2011, 06:38 PM
jtgain jtgain is offline
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If not to nullify, then what is the purpose of a jury? Surely the judge or a team of legal experts could determine the outcome of a case far better than 12 laypeople. I always thought that the jury was the last firewall against a tyrannical government: That they can't throw people in jail until regular citizens of the community agree to do so.
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Old 02-25-2011, 07:15 PM
Whack-a-Mole Whack-a-Mole is offline
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The ghost of Emmett Till thinks jury nullification sucks. I'd be willing to bet his mother feels the same way.
Nullification is a double-edged sword that can be used for good or ill (for instance northerners refused to prosecute abolitionists who harbored runaway slaves which was against the law). We can play dueling anecdotes on this all night.
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Old 02-25-2011, 07:22 PM
Markxxx Markxxx is offline
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The traditional defintion of jury tampering has been "unduly attempting to influence the make up of a jury or the decision of the jury."

And in this case he is attempting to influence the jury. But is he unduly? Unduly generally means to excess or in contrary of legal or moral standards.

The 1st Amendment doesn't come into play really, 'cause no rights are absoute. The obvious example is yelling "fire" in a crowded theatre is not protected under the right of free speech.

I think a jury should have the right to nullify a decision. The whole idea of a trial should be justice and getting at the truth. Not one side having a better lawyer than the other, which happens too often.

So the question isn't really first amendment right of speech, that can be regulated, and he is attemping to influence the jury so he's bordering on jury tampering.

The real question is the term "unduly" is he attempting to influence it to excess or against, legal or moral standards?
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  #33  
Old 02-25-2011, 08:43 PM
magellan01 magellan01 is offline
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The Jury is responsible for the fate of the defendant. As such, they have to consider the consequences of a "guilty" verdict.
I don't think that's right at all. They are there to review the facts of the case. Their is a charge that Defendant A broke Law X. Evidence is offered by the prosecution and the defense. The only question the jury is there to answer is "Did Defendant A, in fact,commit an act that is in violation of Law X?. That's it. Period. The penalty a guilty person might suffer or the intelligence of the law itself is not what they are their to judge.
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Old 02-25-2011, 08:55 PM
Acid Lamp Acid Lamp is offline
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I don't think that's right at all. They are there to review the facts of the case. Their is a charge that Defendant A broke Law X. Evidence is offered by the prosecution and the defense. The only question the jury is there to answer is "Did Defendant A, in fact,commit an act that is in violation of Law X?. That's it. Period. The penalty a guilty person might suffer or the intelligence of the law itself is not what they are their to judge.
Then why have a jury at all? Certainly a simple panel of clerks with a checklist could easily and thoroughly review cases far faster than a jury and a trial. The point of a jury is that the accused must be convicted by a group of his or her fellow citizens. A pool that should represent a reasonable cross section of the community, their beliefs, values, and standards of the time. THEY weight the evidence, the cases argued by the lawyers, and the potential consequences and vote according to their conscience. It was put in place to prevent rubber stamp justice. In the bad old days, magistrates would simply hear a case and decide. All too often that led to corruption, bias, abuse and all sorts of other unsavory miscarriages of justice. The jury places a great big roadblock in the way of such a concentration of power. They weigh everything, not just rubber stamp a case. They must decide if a person is guilty which is not always the same as having broken the law. Only then, having been convicted by the community can they be sentenced according to the law.
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Old 02-26-2011, 12:38 PM
Ravenman Ravenman is online now
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Then why have a jury at all? Certainly a simple panel of clerks with a checklist could easily and thoroughly review cases far faster than a jury and a trial.
Because the clerks would presumably work for the government, and undermine the idea that the facts of the case should be examined by an impartial panel.


Quote:
THEY weight the evidence, the cases argued by the lawyers, and the potential consequences and vote according to their conscience.
I disagree with the last parts about consequences and conscience. As it is, juries generally are not told of the consequences, and matters of conscience (e.g., in which one's moral or ethical code produces issues of guilt or vengeance that may lead toward a particular verdict regardless of the facts of the case) should be disclosed in voir dire.

I know you feel strongly about this, but simply repeating over and over that juries have a duty to do things that our current legal system doesn't recognize isn't exactly a convincing point. For example, repeating that juries should weigh the consequences of a conviction isn't terribly convincing to me, but if you would provide some evidence of legal systems where that is allowed and present reasons why that system is better for doing so, I'm willing to listen.
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  #36  
Old 02-26-2011, 12:48 PM
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Originally Posted by Acid Lamp View Post
Why not try it out with a far less controversial topic?

Say we have a case of assault. During the trial the jury is able to watch a security video that clearly demonstrates that the defendant did partake in the fight, and that they were also severely and rather brutally antagonized into it. They decide that the actions of the plaintiff were so beyond socially acceptable that it was a clear case of "He had it coming" and find the defendant not guilty. They COULD turn in a verdict of guilty, and probably should. They also know that the judge knows and understands the circumstances. However, it could be that judge's hands are tied in terms of sentencing. They don't want the defendant to go to jail, and have decided to skip the whole issue and nullify.

Don't forget that the whole jury must decide, it isn't a unilateral decision. That is very rare.
I don't debate hypotheticals. One can imagine all kinds of strange situations. If it's not about a reall court case, with real life decisions to be made, I'm not interested.
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Old 02-26-2011, 01:20 PM
Rhythmdvl Rhythmdvl is offline
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While I disagree that Mr. Heicklen should not be prosecuted, it's easy to muddy the waters.

In Baltimore (?) there is a grass-roots movement pushing a "don't snitch" mentality. On its surface it is patently violence-based and intended to intimidate witnesses. However, what if an otherwise clean person (i.e., no dodging the question by adding facts not here, consider the person enamored of gang lifestyle but never joined or participated in anything illegal and earns all his money legitimately) went on an advertising blitz--radio, television, and billboards right outside the courthouse--promoting the idea that community members should not collaborate or cooperate with the police or prosecution of gang-related crimes in the community? The message would be similar to, but careful to avoid a direct quote of the anti-snitch rhetoric.

Would there be any possibility of legal action against him? Should there be?

I'm still on the side of no, but not so sure.
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Old 02-26-2011, 01:24 PM
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I can see how people could see his distributing pamphlets as a way to say "you should do that", but in practical terms, either the members of the jury know about jury nullification or they don't.

If they already do, then I don't really see what harm the pamphlet does. It's like handing me a pamphlet telling me that eating at McDonald's is not 100% health-friendly, or that we should stop waging war because war kills people. Well, duh.
If they don't, then edumafacating them is a net positive, isn't it ? Although in that case the edumacation process should probably go further than that (I don't grok juries, FWIW. To me, people who know fuck all about the law, nor about lawyer & rhetorical tactics shouldn't have an impact on how the law is applied. YMMVW).

Last edited by Kobal2; 02-26-2011 at 01:25 PM..
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  #39  
Old 02-26-2011, 01:25 PM
blindboyard blindboyard is offline
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So, informing a jury of the possibility of jury nullification is tampering with a jury.

So, how is he going to get a trial without the jury being told about jury nullification?
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Old 02-26-2011, 01:32 PM
Peremensoe Peremensoe is offline
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Nutjobs have 1st Amendment rights too last I checked.
Indeed. I hope he gets some legal assistance.
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  #41  
Old 02-26-2011, 01:41 PM
magellan01 magellan01 is offline
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Then why have a jury at all?
You seem to know the answer to your own question:

Quote:
Originally Posted by Acid Lamp View Post
The point of a jury is that the accused must be convicted by a group of his or her fellow citizens. A pool that should represent a reasonable cross section of the community, their beliefs, values, and standards of the time.

<snip>

It was put in place to prevent rubber stamp justice. In the bad old days, magistrates would simply hear a case and decide. All too often that led to corruption, bias, abuse and all sorts of other unsavory miscarriages of justice. The jury places a great big roadblock in the way of such a concentration of power. They weigh everything, not just rubber stamp a case.
Though "beliefs" and "values" of the time are more part of lawmaking, not prosecution of lawbreakers. If the values of a particular people in a particular time think a law unjust, they can change the law. Lawmaking is the job of the legislative branch.

Quote:
Originally Posted by Acid Lamp View Post
THEY weight the evidence, the cases argued by the lawyers, and the potential consequences and vote according to their conscience.
As Ravenman pointed out, simply repeating this does not make it so. They are not supposed to look at consequences. Sentencing (the consequences) is left to the judge.
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Old 02-26-2011, 01:45 PM
Heyoka13 Heyoka13 is offline
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So, informing a jury of the possibility of jury nullification is tampering with a jury.

So, how is he going to get a trial without the jury being told about jury nullification?
+1

(I'll bump that up to +2 if the DAs head explodes when your point occurs to him)
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Old 02-26-2011, 02:50 PM
Tilley Tilley is offline
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>>As Ravenman pointed out, simply repeating this does not make it so. They are not supposed to look at consequences. Sentencing (the consequences) is left to the judge.<<

While true in most jurisdictions, there are a number of states that have justice systems where sentencing (in jury trials) is done by the juries. Here, obviously, the jury is expected to do more than merely determine facts.

Which raises the oft-debated question: In terms of "systems analysis," which is the better system? Does the expanded duties and powers of such juries further the democratic foundation of those jurisdictions, merely designed to shield their elected judges from political accountability, and is it fairer to the accused and the community?

(Most such systems are "hybrid," in that judges remain with some power to override or modify jury sentences in some. I've read there are six states which allocate sentencing responsibilities, in some fashion or another.)
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Old 02-26-2011, 06:36 PM
Happy Fun Ball Happy Fun Ball is online now
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Ummm..I am a conservative of the libertarian stripe (small "l" intentional). If you agree, why are you arguing?
Hmmm... You obviously don't agree with the Libertarian party on this matter, they are supporters of jury nullification as laid out in their platform:

Quote:
Originally Posted by Libertarian Party Platform
We assert the common-law right of juries to judge not only the facts but also the justice of the law.
Most libertarian leaning Republicans and conservative groups (Ron Paul and the Cato Institute for example) also support jury nullifcation. But no matter, there are obviously differences between "small l" libertarians and party members. Libertarians, almost by definitinon, have strong individual beliefs.

Anyway, while it is true that a Jury's duty (heh) is mainly to determine the facts of the case, and the job of determining law is mainly the duty of the judiciary, the right of the jury to acquit, even when the facts of the case clearly indicate guilt is unassailable (due to the double jepordy clause of the 5th amendment) . This de facto right (de facto due to the right to a trial by jury laid out in the 6th amendment) is one of the last bulwarks for the citizenry to protect itself from a tyranical or corrupt government. The understanding that juries can judge both the facts and the law is older than the founding of our country and has been supported numerous times in court. For instance, Chief Justice John Jay speaking to a jury in a unamimous supreme court decision (Georgia vs. Brailstford, 3 U.S. (3 Dall.) 1 (1794)):

Quote:
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision.
Another notable example is Alexander Hamilton, arguing before the New York Supreme Court in People vs. Croswell (3 Johns. Cas. 336 (1804)).
Quote:
In the general distribution of power, in any system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That, in civil cases, it is always so, and may rightfully be so exerted. That, in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, are intrusted with the power of deciding both law and fact.
This was agreed to by chief justice of the court (James Kent, widely known for his authorship of Commentaries on American Law) in his decision:
Quote:
In every criminal case, upon the plea of not guilty, the jury may, and indeed they must, unless they choose to find a special verdict, take upon themselves the decision of the law, as well as the fact, and bring in a verdict as comprehensive as the issue; because, in every such case, they are charged with the deliverance of the defendant from the crime of which he is accused.
But while the power of the jury is admitted, it is denied that they can rightfully or lawfully exercise it, without compromitting their consciences, and that they are bound implicitly, in all cases to receive the law from the court. The law must, however, have intended, in granting this power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy against the undue exercise of it. The true criterion of a legal power, is its capacity to produce a definitive effect liable neither to censure nor review. And the verdict of not guilty, in a criminal case, is, in every respect, absolutely final. The jury are not liable to punishment, nor the verdict to control.
This case is important as it has been cited by the US Supreme Court in the aforementioned Sparf et al. v. United States.

Another founding father, John Adams, also expressed his opinion on the Juror's rights to judge the law:

Quote:
It is not only the trial juror's right, but his duty, to find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.
I could go on citing the founding fathers (Thomas Jefferson also wrote about Jury rights and responsibilities in this regard), and US court cases (both the Supreme Court and several circuits of the court of appeals have upheld this right for juries to nullify laws in specific cases many times), but I think I have made my point here. If you truly believe that this is wrong, that juries are not allowed to judge the law and must only judge facts, provide some cites please.

I will come back again in a while an post some examples of Jury nullification that made sense. Sure their are cases, like your Emmett Till case, that was a miscarriage of justice, but in the main jury nullification can be a good thing.
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Old 02-26-2011, 08:55 PM
Rhythmdvl Rhythmdvl is offline
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Originally Posted by blindboyard View Post
So, informing a jury of the possibility of jury nullification is tampering with a jury.

So, how is he going to get a trial without the jury being told about jury nullification?
Quote:
Originally Posted by Heyoka13 View Post
+1

(I'll bump that up to +2 if the DAs head explodes when your point occurs to him)
+3 if this ends up leading to the discovery of the mass of the Higgs boson particle.

(+4 if it doesn't result in reducing Earth into the size of a pea.)
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Old 02-26-2011, 09:01 PM
Heyoka13 Heyoka13 is offline
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+3 if this ends up leading to the discovery of the mass of the Higgs boson particle.

(+4 if it doesn't result in reducing Earth into the size of a pea.)
I am in the presense of the master.

I am shocked and awed.

Well played, Kemosabi.

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  #47  
Old 02-26-2011, 09:02 PM
Heyoka13 Heyoka13 is offline
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Can Mr. Heicklen make a citizens arrest of the DA during the trial?
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  #48  
Old 02-26-2011, 09:04 PM
Heyoka13 Heyoka13 is offline
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Would the judge stop the DA during his opening statement and remind the him of his 5th Amendment rights?
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Old 02-26-2011, 09:07 PM
Patch Patch is offline
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So, informing a jury of the possibility of jury nullification is tampering with a jury.

So, how is he going to get a trial without the jury being told about jury nullification?
"Ladies and gentlemen of the jury, you are here for the trial of Mr. Heicklen, who was illegally distributing pamphlets on jury nullification in front of the courthouse. Jury nullification is the principle by which a jury can, in opposition to the law and evidence presented, vote according to their conscience and find a defendant not guilty.

...

Oh, crap."
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Old 02-26-2011, 09:08 PM
Heyoka13 Heyoka13 is offline
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Would the judge stop the DA during his opening statement and remind the him of his 5th Amendment rights?
(Off topic, but really funny; I was at a local city council meeting a few years ago, and the city attorney interrupted the council members and reminded them of their 5th Amendment rights during what was, up to that point, a rather mundane zoning discussion.

The meeting became VERY interesting at that point)
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