2004/09/11

Postings to forum on ABC-News "In the Jury Room"

The forum is at http://forums.go.com/abcnews/thread?threadID=29323

ABC is to be commended for its series /In the Jury Room/. Besides being entertaining, it serves a need to educate the public how to serve on juries.

We have web pages on the subject:
http://www.constitution.org/jury/pj/pj-us.htm
http://www.constitution.org/jury/gj/gj-us.htm

I will be posting several messages on this topic which discuss some of the fundamentals of jury service that everyone needs to know, but which are seldom taught in the public schools. I invite others to contribute.

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There are several elements that must be proved beyond a reasonable doubt to establish guilt on a criminal charge:

(1) That the charge is authorized by a statute;

(2) That the statute is authorized by a constitution (state or federal);

(3) That the charge and statute are applicable to the facts alleged;

(4) That the court has both subject jurisdiction, and either territorial or personal jurisdiction. This point is discussed at http://www.constitution.org/cmt/stimson/con_crim_jr.htm ;

(5) That the rights of the accused have not been abused by officials, including the police, prosecutors, and judge;

(6) That the facts establish the following five elements of a criminal act:

1. Mens rea. Criminal intent. The accused must have intended to commit the crime.

2. Actus reus. The actual act that fits the definitions established by law.

3. Concurrence. Mens rea and actus reus must coincide in location and time.

4. Harm. Some injury must actually have been done.

5. Causation. The actus reus must have actually caused the harm.

Now these last items must be reconciled with statutes that are intended to prevent harm, and punish behavior that increases the risk of harm rather than cause actual harm. Many of these statutes are constitutionally problematic, and raise the question, to be decided by the jury, whether the risk was real or only a theory of the legislature that may have been misguided.

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A jury verdict, in a criminal case, as a matter of constitutional law, is not a judgment of whether the accused is a "good" guy or a "bad" guy, or whether what he is alleged to have done is "right" or "wrong". It is a judgment that the prosecution has proved beyond a reasonable doubt that the defendant violated a constitutional statute. Moral judgment should have no bearing on the matter, and jurors who allow themselves to engage in moral judgment instead of legal judgment are violating their oaths as jurors and the obligation all of us have to preserve, protect, and defend the Constitution.

It is a common practice to charge defendants with alleged offenses that are not authorized by law. This is an abuse of the rights of the accused and a violation of the oaths of the officials involved, or at least an exercise of gross incompetence. The jury system was established precisely to protect the accused against this kind of abuse, and to do that, there must be a basic foundation of knowledge and skill in analyzing law on the part of the citizenry from whom the jury is drawn. Because the jury cannot be reasonably expected to thoroughly know the law before the trial, a foundation of knowledge even the judge and lawyers often don't have before the actual trial, it is essential that all issues of law be argued in the presence of the jury, that they have copies of all pleadings, and access to an adequate law library and guidance how to use it. In other words, they need everything the judge has to help them make their decision. "That doesn't mean they are asked to decide motions or write legal opinions, but they are obligated to review the ways such decisions are made, and opinions written, in reaching a general verdict or "guilty" or "not guilty". If they were only being asked to bring a special verdict of whether the defendant committed the acts alleged, that would be a different matter, but a general verdict cannot be brought intelligently without a consideration of all issues of law and fact. In a constitutional republic, what is and what is not the law is a fact issue, because judges and other officials do not have the authority to make law, and legislatures are not authorized to make unconstitutional law. If there is no law, or it does not apply, the jury is obliged to acquit.

It should be clarified, however, that argument on evidence, and what may or may not be admitted, is sometimes an issue of law, and sometimes not, and might be excluded from the jury.

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Part of what a jury must decide is whether there is authority for statutes, charges, the actions of officials, and of the court to meet and decide.

All government authority begins with a constitution, either state or federal, which is composed of statements of the following kind:

1. Delegated powers.
--Permissive: An official may do something.
--Obligatory: An official must do something.

2. Rights, restrictions on delegated powers.
--A person has a right to not have officials do something.
--An official may not do something.

It is important to understand that every delegated power is a restriction on rights, and every right a restriction on delegated powers. A right may consist of a power that has not been delegated.

The exercise of a power by government officials is to be understood as involving an expenditure of resources,that is, affirmative action, and not the mere neglect to expend resources, or "inaction".

In general, any official act that is authorized is one that is an instance or subset of a delegated power at a higher level of law. Thus, a power to *regulate* commerce authorizes the congressional adoption of a particular regulation on some subset of all articles of commerce. On the other hand, the original understanding of the Founders was that only civil penalties could be imposed for violations of regulations, promotional activities, or expenditures, not criminal penalties, such as deprivation of life, limb, or liberty."Commerce" included only the transfer of ownership and possession of tangible commodities, not services, banking, information, or the transport of noncommercial items. It did not include the activities of those engaged in commerce, including activities that might have a "substantial effect" on commerce, but only the sale and delivery of commercial commodities and their attributes.

Therefore, federal statutes that prescribe criminal penalties for possession, use, or sale of mind-altering substances, outside the "federal enclaves" created under Art. I Sec. 8 Cl. 17, are unconstitutional. See http://www.constitution.org/juris/fjur/fed_jur.htm . However, state statutes against such substances are, in general, constitutional, for offenses committed within the territorial boundaries of the state. A jury must ask for proof of the authority of the charge and the jurisdiction of the court, based on the exact location at which the offense was committed, and if not, must acquit.

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