# "You are not to reference the Constitution in these proceedings," orders judge **URL:** \ **Category:** Great Debates\ **Created:** [June 26, 2002, 2:35pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039 "2002-06-26T14:35:16Z")\ **Posts on this page:** 16\ **Page:** 2
**Author:** ![Crafter\_Man](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crafter_man/32/458_2.png) [@Crafter\_Man](https://boards.straightdope.com/u/Crafter_Man)\ **Post date:** [June 26, 2002, 11:33pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/21 "2002-06-26T23:33:14Z")
> [@](#): > > \*Originally posted by wring \* > \*\*well, **Crafter** on a practical basis, the judge absolutely rules their own courtroom (they can be overturned but until that happens, if they say that you may not speak of the Constitution, you may not. > > and, the lawyers are correct about the law - the juries are specifically to ‘facts seekers’, and are to apply the laws are instructed by the judge (or did you miss the “judge’s instructions to the jury” part of trials?).\*\* With all due respect, **wring** , you’re wrong. Every judge in the US is 100% bound by the Constitution. Every juror in the US is 100% bound by the Constitution. A judge cannot instruct _anyone_ to ignore, not consider, or disobey the Constitution. _A judge cannot tell a jury to not obey the law._ Regarding your other comments… A judge can yap all he wants about “judging only on the facts & the law.” But it is the _ **right** _ and _ **duty** _ for a jury to “judge the law,” _no matter what the judge’s instructions are_. Go to [http://www.fija.org/](http://www.fija.org/) for more info. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 26, 2002, 11:39pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/22 "2002-06-26T23:39:57Z")
How 'bout a cite from a non-loonie source? Like, ya know, some actual legal authority? Because I’d hate to have to call you to the mat for misrepresenting the law again. And of course, you are doing exactly that. ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [June 26, 2002, 11:55pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/23 "2002-06-26T23:55:02Z")
uh, huh. And, like I said, the jury, during it’s deliberations can actually decide how they choose. However, the judge can also disregard the jury’s finding should there be evidence that they disregarded the law. Did you by chance notice that your cite was > [@](#): > > FIJA is a non-profit educational association whose mission is to inform all Americans about their rights, powers and responsibilities when serving as trial jurors. FIJA also seeks to restore the political function of the jury as the final check and balance on the American system of government. It is supported by tax-deductible contributions and foundation grants (Ie not necessarily based in law, but rather some people’s opinions?) as opposed to say, [this cite](http://www.netlawlibraries.com/jurinst/ji_001.html) netlaw, which has an example of judge’s instructions: > [@](#): > > JURY INSTRUCTION NO. 1.00 > RESPECTIVE DUTIES OF JUDGE AND JURY > Ladies and Gentlemen of the Jury: > > It is now my duty to instruct you on the law that applies to this case. It is your duty to follow the law. > > As jurors it is your duty to determine the effect and value of the evidence and to decide all questions of fact. (as jury instruction 1.00 so, nope, I ain’t wrong. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 27, 2002, 12:19am UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/24 "2002-06-27T00:19:58Z")
Minty: Next time I’ll refresh my recollection by reading the case I’m spouting off about. You’re quite right that Emerson said nothing about state law at all. Apologies. And it sounds like we agree on the other part of this… - Rick ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [June 27, 2002, 12:24am UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/25 "2002-06-27T00:24:43Z")
wow, **Bricker** when I clicked on this thread it said that the last poster on it was “Unregistered”, but it was you. :: scratching head: Huh. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 27, 2002, 12:51am UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/26 "2002-06-27T00:51:39Z")
Take it easy, Rick. It’s not like I check every case _I_ spout off about. 🙂 ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 27, 2002, 2:36am UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/27 "2002-06-27T02:36:51Z")
Here’s [another report](http://www.co-freedom.com/2002/06/stanleygun.html). I cannot vouch for it, but it does make interesting reading. One noteworthy point is that it says the judge barred any discussion of the Colorado Constitution as well as the US Constution. > [@](#): > > “Do not raise the issue of the Second Amendment or the U.S. Constitution,” or the Colorado Constitution, Judge Robert L. Patterson told Paul Grant, Rick Stanley’s lawyer. Patterson said raising Constitutional issues is “totally improper,” and “I’m not going to permit it.” Lawyers – do you agree that the judge was right to bar discussion of the state constitution? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 27, 2002, 2:52am UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/28 "2002-06-27T02:52:58Z")
Was there some part of “It is the _judge’s_ job to inform the jury what the law is” that you didn’t understand the first 20 times? ---
**Author:** ![capacitor](https://avatars.discourse-cdn.com/v4/letter/c/e47774/32.png) [@capacitor](https://boards.straightdope.com/u/capacitor)\ **Post date:** [June 27, 2002, 7:54am UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/29 "2002-06-27T07:54:30Z")
The judge was saying not to lie to the jurors by saying that Constitutional rights have been established when actually they are in dispute. ---
**Author:** ![Tedster](https://avatars.discourse-cdn.com/v4/letter/t/4491bb/32.png) [@Tedster](https://boards.straightdope.com/u/Tedster)\ **Post date:** [June 27, 2002, 2:03pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/30 "2002-06-27T14:03:15Z")
This sounds more like an example of folks preventing Jurors from reaching a verdict in favor of the defendent. Is “Jury Nullification” necessarily a bad thing? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 27, 2002, 4:33pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/31 "2002-06-27T16:33:10Z")
December: Constitutions, both state and federal, describe law - the highest law in the state, and the supreme law of the land. But they are not useful tools in ascertaining facts in dispute. The jurors did not have to determine what the state or federal constitution said – they had to determine what events happened. The judge is the one that determines how those facts apply to the law. Arguments must derive from the evidence presented. A lawyer argues to the jury that, based on the evidence they have heard, they should draw certain inferences as to what actually happened, or they should believe one witness and disbelieve another. A lawyer does not need to ask the jury to apply the Constitution to a case, because that has nothing to do with the facts of the case. A lawyer should - and is - always free to argue _to the judge_ that the Constitution creates law, and should be interpreted in a particular way. But making such arguments to the jury is confusing, and improper. We have a long list of restrictions on what a jury may hear. For example, we generally do not permit an accused’s prior criminal convictions to be heard by a jury. Why? Because they are generally not relevant to prove he commited the act under consideration. The knowledge may prejudice the jury into convicting him because he’s a bad guy, as opposed to their finding the elements of the crime proven. In fact, the jury cannot hear any evidence unless it’s relevant. Relevant evidence is that which tends to prove or disprove any fact under consideration. Even if evidence is otherwise relevant, it must be more probative than prejudicial – that is, if it has only slight value in proving a fact, but highly prejudicial value, it will be excluded. The contents of the federal or state constitutions do not lend themselves to proving or disproving any fact under consideration. It was proper for the judge to bar them. By the way, I am a supporter of the right to keep and bear arms, and a lifetime NRA member - to the extent you may question my pre-existing bias on this particular case’s issues. - Rick ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [June 27, 2002, 6:09pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/32 "2002-06-27T18:09:53Z")
> [@](#): > > \*Originally posted by Tedster \* > This sounds more like an example of folks preventing Jurors from reaching a verdict in favor of the defendent. Where do you get that? The jury still can vote “not guilty.” In any event, do you really think that the jury hasn’t heard of the Second Amendment? Naw – what the defendant wants to do is present his _opinion_ of what the Second Amendment _means._ Which leads to the second point – > [@](#): > > Is “Jury Nullification” necessarily a bad thing? Absolutely not. But there are a few things to consider here. _First,_ jury nullification generally means that the jury considers the law under which the defendant is charged to be a bad law. That’s not what the defendant wants here. Instead, he wants the jury to determine that the law is an _unconstitutional_ law - a subtle but crucial difference. The jury isn’t being asked to determine that a law is an affront to their (as representatives of the community) sensibilities and sense of justice, but instead that the law is based upon a misinterpretation of another law. And that is not the jury’s province. _Second,_ jury nullification is not a bad thing, but by no means should it be encouraged by anyone, because routine jury nullification would raise havoc with one of the most important purposes of law - predictability. A key factor in favor of stability of law (and thus against jury nullification) is that people can predict the legal implications of their actions and modify their behavior accordingly. Routine jury nullification would result in a lost of predictability - no one knows what is illegal until the jury rules, and then only in that case alone. Not a pleasant prospect. To sum up then. Jury nullification as a concept is fine, but in practice, juries should not nullify if people of good will reasonably disagree on whether a law is good or bad. In those cases, you simply should go with the majority view - that is, what the people’s representatives have passed as law. And therefore, defendants and lawyers should not be allowed to urge jury nullification - if people of good will reasonably and (near) uniformly agree that a law is bad, such urging won’t be necessary. And if urging is necessary, it means that there is a reasonable disagreement. Sua Sua ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [June 27, 2002, 9:12pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/33 "2002-06-27T21:12:45Z")
December, give it up. You’re wrong, the judge was right and I’m speaking as a strong supporter of the 2nd amendment. Some background on this case. The defendant, for all that I support his basic goal of strenghtening the 2nd amendment, is a lunatic (I ranted about him [here](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=116491&highlight=libertarian)). He wanted to have a court case so he could have a media circus over a very cut-and-dried case. He’s the libertarian party candidate who says that anyone who voted for the Patriot Act should be put to death by hanging and that anyone who voted for _any_ gun legislation _including people who voted in favor of concealed carry_ is a traitor. And after hearing Stanley rant, I’m much more inclined to belive the judge’s version than Stanley’s. I completely understand the judge saying that he wants the issue to be “Did the defendant violate law X” not “Is the 2nd amendment absolute” Fenris ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [June 27, 2002, 9:35pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/34 "2002-06-27T21:35:30Z")
December, give it up. You’re wrong, the judge was right and I’m speaking as a strong supporter of the 2nd amendment. Some background on this case. The defendant, for all that I support his basic goal of strenghtening the 2nd amendment, is a lunatic (I ranted about him [here](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=116491&highlight=libertarian)). He wanted to have a court case so he could have a media circus over a very cut-and-dried case. He’s the libertarian party candidate who says that anyone who voted for the Patriot Act should be put to death by hanging and that anyone who voted for _any_ gun legislation _including people who voted in favor of concealed carry_ is a traitor. And after hearing Stanley rant, I’m much more inclined to believe the judge’s version than Stanley’s. As much as I despise Denver’s gun-laws, I completely understand the judge saying that he wants the issue to be “Did the defendant violate law X?” not “Is the 2nd amendment absolute?” Fenris ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [June 27, 2002, 9:46pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/35 "2002-06-27T21:46:51Z")
> [@](#): > > **Fenris** December, give it up. You’re wrong, the judge was right and I’m speaking as a strong supporter of the 2nd amendment. Uh, **Fenris** , I think we’re on the same side. I admit that I asked, “what rights and obligations do non-judges have…?” I also asked about state vs. federal constitutions. I’m interested in these legal ramifications and I appreciate the expert information from our lawyer-dopers. However, I never took a position that the judge was wrong. On the contrary, in the OP (seems like a long time ago) I wrote, “Although the judge’s statement sounds silly, I can see things his way. Mention of the Constitution was a subtle invitation to jury nullification.” ---
**Author:** ![Fenris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fenris/32/498_2.png) [@Fenris](https://boards.straightdope.com/u/Fenris)\ **Post date:** [June 27, 2002, 10:58pm UTC](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039/36 "2002-06-27T22:58:35Z")
Ook… I apologize. You’re correct and I (due to either being WAY tired or WAY stupid…your pick! 😉 😃 ) completely misread your post. Sorry about that! (The defendant is still a mega-kook though!) [Previous page](https://boards.straightdope.com/t/you-are-not-to-reference-the-constitution-in-these-proceedings-orders-judge/116039.md?page=1)