Abu Dhabi, Algeria, Argentina, Australia, China, Dubai, Egypt, France, India, Indonesia, Iran, Israel, Italy, Korea, Malaysia, Mexico, Mongolia, Morocco,Netherlands, Netherlands Antilles, Norway, Peru, Qatar, Saudi Arabia, Singapore, Sri Lanka, Sweden, Switzerland, Turkey, and Viet Nam.(Most of these visitors come to us via the Texas State Bar, which has us as the featured blog on its blog page this week.) I welcome these visitors. I realize that in your country, the accused probably does not have the right to a jury trial. The idea that we should be judged by juries of our peers must be as foreign to you as the idea that juries should determine suppression issues is to visitors from New York. Here's how it works: If the government wants to take away my freedom, it has to convince twelve of my peers that I've violated the law. The government must present witnesses to testify to my guilt. I can confront and cross-examine these witnesses and present my own witnesses. If I want to testify I can, but if I don't nobody can compel me to. If the jury finds that the government has not proven its case beyond a reasonable doubt, they acquit me. Even if my twelve peers think the government has proven its case beyond a reasonable doubt, they can concude law the law is wrong and acquit me. If they do, the government can't appeal, can't reprosecute me for the same offense, and can't punish the jurors for their decision.
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3 comments:
You write "Even if my twelve peers think the government has proven its case beyond a reasonable doubt, they can concude law the law is wrong and acquit me."
Is not jury nullification one of the best kept secrets of the criminal justice system? Can you, the defense attorney, inform the jury of this power? I think not. Will the judge, whose job it is to define and explain the law to the jury, inform the jury on this aspect of the jury system? I doubt it. Unless Texas is different in this regard from Michigan, where I live, It will take a rare, independent minded jury to nullify the law in their verdict. If you have a different point of view, I would love to hear it, as the subject interests me.
(Continuing thought in previous comment) Not to mention the fact that if the Feds do not like a state verdict, they can press Federal charges arising out of the same incident for a "second bite at the apple." This has happened in Michigan.
All good points.
Jury nullification ought to be a required subject in every high school government class, but I don't know of anywhere that courts tell the truth to juries about their nullification power. In fact, they out-and-out lie. They force our complicity as well by doing their best to keep us from telling the jury about this aspect of their power.
So what can we do about it? You and I are doing it right now.
The feds can and sometimes do take second bites at the apple, based on the legal fiction of dual sovereignty. The theory is that each sovereign can take a swing at the accused for the same conduct. It's a fiction because there is no sovereign or -- put differently -- because the people are sovereign).
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