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View Full Version : Grand Jury Indictment Required if Slaughter House Overturned?


Shotgun Man
10-04-2009, 4:40 PM
If McDonald is successful in overturning The Slaughter House Cases would it not mean that we in California in felony prosecutions have the right to a grand jury indictment?

We haven't had this right since 1884.

That will play havoc in California where we use the preliminary hearing. I look forward to the ensuing chaos, but I wonder if this same argument will be used to not revisit the The Slaughter House Cases.

http://en.wikipedia.org/wiki/Hurtado_v._California

Dr Rockso
10-04-2009, 4:49 PM
Applying wholesale incorporation of amendments 1-8 seems like it would have some interesting effects on the legal system in a lot of areas.

Shotgun Man
10-04-2009, 5:02 PM
In California, knowing a grand jury indictment is not required, the legislature has gone hog-wild in declaring even the most innocuous offenses felonies. DAs file felonies at the drop of the hat knowing that the magistrate (likely a former DA) will hold any defendant to answer despite a paucity of proof.

This would be good for freedom if the P&I clause is held to apply to the states.

ke6guj
10-04-2009, 5:02 PM
Yes, it has been mentioned by a couple people that throwing out the Slaughter House cases would potentially open up Grand Jury and some other rights that have been suppressed. IIRC, some briefs many have even bemoaned that possiblity.

Shotgun Man
10-04-2009, 5:10 PM
Yes, it has been mentioned by a couple people that throwing out the Slaughter House cases would potentially open up Grand Jury and some other rights that have been suppressed. IIRC, some briefs many have even bemoaned that possiblity.

With all the time I spend on calguns, you'd think I would have seen that.:)

1JimMarch
10-04-2009, 5:29 PM
OK, now for one better:

The right to a jury trial in civil court.

Hello! Can you say "gee, us "gun nuts" just cleaned up the festering cesspool known as "family law court"?

Oh yeah.

Dr Rockso
10-04-2009, 5:34 PM
OK, now for one better:

The right to a jury trial in civil court.

Hello! Can you say "gee, us "gun nuts" just cleaned up the festering cesspool known as "family law court"?

Oh yeah.
But I thought denial of due process was "for the children".

ke6guj
10-04-2009, 5:48 PM
With all the time I spend on calguns, you'd think I would have seen that.:)

read the Chicago Brief in Opposition to Cert Petition, http://www.chicagoguncase.com/wp-content/uploads/2009/08/chicago_bio.pdf about how they feel that P&I would affect the states.



Petitioners identify no limiting principle under which the meaning of “privileges or immunities” could encompass the Second Amendment, but not the Fifth and Seventh Amendment grand jury and civil jury rights. To the contrary, McDonald petitioners readily admit that the first eight Amendments must be incorporated wholesale. McDonald Pet. 23. For more than a century, States have been free to adopt constitutional provisions and statutes regulating whether and when to indict by grand jury proceed-ings and the nature of their civil jury systems, all based on this Court’s repeated holdings that these laws need not meet the same standards required in federal cases under the Fifth and Seventh Amend-ments. Petitioners make no effort to explain how Slaughter-House Cases can be overruled in favor of a regime of total incorporation without seriously upset-ting the reliance interests of the States.

hoffmang
10-04-2009, 6:17 PM
Jury trial for speeding tickets ahoy!

-Gene

SimpleCountryActuary
10-04-2009, 6:19 PM
But I thought denial of due process was "for the children".

We seem to be a cynical bunch, with darn good reason. :rolleyes:

FreshTapCoke
10-04-2009, 6:47 PM
Jury trial for speeding tickets ahoy!

-Gene

After CCW's, this is seriously what I'm praying for next. I'd rather have my taxes overtly raised than covertly collected via infractions.

nick
10-04-2009, 6:51 PM
If McDonald is successful in overturning The Slaughter House Cases would it not mean that we in California in felony prosecutions have the right to a grand jury indictment?

We haven't had this right since 1884.

That will play havoc in California where we use the preliminary hearing. I look forward to the ensuing chaos, but I wonder if this same argument will be used to not revisit the The Slaughter House Cases.

http://en.wikipedia.org/wiki/Hurtado_v._California

Wouldn't that require integrity and courage from at least 5 judges? I'm not holding my breath.

Shotgun Man
10-04-2009, 7:00 PM
Wouldn't that require integrity and courage from at least 5 judges? I'm not holding my breath.

They decided Crawford (http://www.wcsap.org/legal/PDF/UnderstandingCrawford.pdf). That was a slap in the face to prosecutors who had been accustomed to rely up hearsay evidence.

I'm of the belief that we're getting a little more freedom out of these conservative judges. The fourth amendment gets short shrift though.

Fate
10-04-2009, 7:00 PM
Jury trial for speeding tickets ahoy!

-Gene

And people think it's hard NOW to get out of jury duty... :D

Shotgun Man
10-04-2009, 7:01 PM
And people think it's hard NOW to get out of jury duty... :D

LOL. How true.

sholling
10-04-2009, 9:03 PM
Jury trial for speeding tickets ahoy!

-Gene

I hope so. It's about time the profit motive was removed from traffic enforcement. I'm all for enforcement from a purely safety perspective but the current system an appointed commissioner serving only so long as he/she brings in a steady stream of traffic ticket income and no right to a jury is obscene. I'm for lifetime tenured traffic court judges and jury trials.

dantodd
10-04-2009, 9:13 PM
Jury trial for speeding tickets ahoy!

-Gene

They will still be 10 minute trials the only difference will be a jury in the box during the trial. I'm sure they'll allow "majority rule" trials in traffic court and the jury box will be fitted with electronic voting devices. It will be the same wham bam thank you ma'am trial but the decisions will probably go 90-10 the other way with all the people sitting the box angry at the state for making them spend that day in the courtroom.

FreedomIsNotFree
10-04-2009, 10:42 PM
They will still be 10 minute trials the only difference will be a jury in the box during the trial. I'm sure they'll allow "majority rule" trials in traffic court and the jury box will be fitted with electronic voting devices. It will be the same wham bam thank you ma'am trial but the decisions will probably go 90-10 the other way with all the people sitting the box angry at the state for making them spend that day in the courtroom.

Not hardly. There are countless citizens that have faced the biased and corrupt charade they call justice in "traffic" court. Don't think those people would be so quick to side with the State.

The likely outcome would be much less prosecutions. It was just back in the 60's when VC violations were considered misdemeanors and defendants had a right to jury trials.

ke6guj
10-04-2009, 10:44 PM
Not hardly. There are countless citizens that have faced the biased and corrupt charade they call justice in "traffic" court. Don't think those people would be so quick to side with the State.re-read what dantodd said. He said that trials would probably go 90-10 in the favor of the defendant for that exact reason.

FreedomIsNotFree
10-04-2009, 10:50 PM
re-read what dantodd said. He said that trials would probably go 90-10 in the favor of the defendant for that exact reason.

HAHA. Thanks. That's what happens when I try to post after a long day of work. ;)

At this point I should probably just read a bit and go to bed.

snobord99
10-04-2009, 11:11 PM
I don't think we need to bother with this hypothetical. Odds are, if we do win, they're not going to overturn the Slaughter House cases. They'll just incorporate the 2nd and leave everything else as is.

As far as traffic court goes, traffic citations are infractions. If I remember correctly, infractions don't require a jury trial, even under the Constitution. I'm pretty sure there was at least one SCOTUS case where they basically said 6th doesn't apply if you're not imprisoned for more than x months (I believe it was 6). I can't remember the details, but I remember seeing that rule.

press1280
10-05-2009, 12:43 AM
I don't think we need to bother with this hypothetical. Odds are, if we do win, they're not going to overturn the Slaughter House cases. They'll just incorporate the 2nd and leave everything else as is.

As far as traffic court goes, traffic citations are infractions. If I remember correctly, infractions don't require a jury trial, even under the Constitution. I'm pretty sure there was at least one SCOTUS case where they basically said 6th doesn't apply if you're not imprisoned for more than x months (I believe it was 6). I can't remember the details, but I remember seeing that rule.
In the 7th circuit oral arguments, the judges seemed to think that overturning Slaughterhouse will afford the 7th Amendment to Chicago's traffic courts.

nicki
10-05-2009, 1:32 AM
I don't expect much will change with traffic tickets because the bottom line is for most people it is cheaper to pay than fight.

Perhaps what will happen is a creation of non point moving violations. The reality is most people who fight tickets do so because of the point system more than the fines themselves.

In other states this may become an issue because traffic laws are treated much more seriously.

For example, in Virginia the speed limit on some highways has been raised to 70mph, but driving 80mph+ is considered reckless driving.

So in Virginia 11 over the limit on an interstate can get you thrown in Jail.

I realize that Calguns is a GUN RIGHTS ORGANIZATION, but perhaps the traffic laws may warrant some effort and the reason is simple, OUTREACH.

Nicki

Kharn
10-05-2009, 4:38 AM
I would love to have the right to a jury in family court. Man-hating judges could no longer run wild with child support when the jury has 3-4 men on it.

ilbob
10-05-2009, 5:26 AM
They will still be 10 minute trials the only difference will be a jury in the box during the trial. I'm sure they'll allow "majority rule" trials in traffic court and the jury box will be fitted with electronic voting devices. It will be the same wham bam thank you ma'am trial but the decisions will probably go 90-10 the other way with all the people sitting the box angry at the state for making them spend that day in the courtroom.


I suspect it will be not different than other jury trials where the jury almost always gets it right, except when there is malfeasance on the part of the state.

We need to go back to a system where an impartial jury decides these things rather than a government employee whose primary worry is raising enough revenue.

I don't have an issue with a ten minute trial for a speeding ticket. how long does it take for a jury to look at the relative credibility of the police officer versus the person cited and make a decision.

My guess is that such a system would result in a lot less traffic citations being written, which is long overdue.

gd-bh
10-05-2009, 7:25 AM
Don't be too sure the public won't side with the cops any less than the judges do. I was on a jury where the cop changed his story twice during testimony, and none of his versions matched the physical evidence that was present. 10 of the 12 simply sided with the LEO and did not even consider the evidence. Judge declared a mistrial, and DA refiled the case for the fourth try, before we the jury were even released from the court.

A jury trial is not any sort of guarantee in the favor of the defendant in even fairly simple traffic cases.

wash
10-05-2009, 8:23 AM
I don't have an issue with a ten minute trial for a speeding ticket. how long does it take for a jury to look at the relative credibility of the police officer versus the person cited and make a decision.

I was nearly held in contempt for saying that police are not more credible by default.

I got out of that jury and I haven't been called back since.

But the bad part is that judges will instruct jurors that essentially they have to believe everything the police say. This ignores the fact that police usually have much more experience in court and have a vested interest in getting convictions.

If I'm ever on jury for the speed round, I'm voting not guilty on all of the speeding tickets...

radioman
10-05-2009, 8:55 AM
I was nearly held in contempt for saying that police are not more credible by default.

I got out of that jury and I haven't been called back since.

But the bad part is that judges will instruct jurors that essentially they have to believe everything the police say. This ignores the fact that police usually have much more experience in court and have a vested interest in getting convictions.

If I'm ever on jury for the speed round, I'm voting not guilty on all of the speeding tickets...

Let's just say it like it is, Cops lie on the stand and get away with it. and the judge will take the lie as gold, and that is why we need the 7th, as it might put an end to this, but jurors must think for them self's and make their own mines, then the system might work.

mmartin
10-05-2009, 9:01 AM
Don't be too sure the public won't side with the cops any less than the judges do. I was on a jury where the cop changed his story twice during testimony, and none of his versions matched the physical evidence that was present. 10 of the 12 simply sided with the LEO and did not even consider the evidence. Judge declared a mistrial, and DA refiled the case for the fourth try, before we the jury were even released from the court.

A jury trial is not any sort of guarantee in the favor of the defendant in even fairly simple traffic cases.

my ex works for edison and they pay full wages for jury duty time (no hardship exemption), so he ended up sitting on a bunch of juries while we were married. his experience was the same. jurors who couldn't think clearly or couldn't be bothered to use their brains. jury trials scare me just as much as the current system, just for different reasons.
megan
ok, put me in the eyerolling cynical group.

loather
10-05-2009, 9:03 AM
... jurors must think for them self's and make their own mines, then the system might work.

In order for jurors to think for themselves and make up their own minds, we'd have to weed the stupid out of the population. This is the same reason people vote for a party instead of a candidate.

Since when did *thinking* become so difficult?

Flopper
10-05-2009, 9:38 AM
Since when did *thinking* become so difficult?

"Become" difficult?

LOL, you make it sound as if at one point in human history it was the rule rather than the exception!

sholling
10-05-2009, 10:15 AM
I would love to have the right to a jury in family court. Man-hating judges could no longer run wild with child support when the jury has 3-4 men on it.
I've had that debate with married men and most are so throughly PWed that they would be worse than the judges. I've heard men go on and on about how men should pay alimony for the privilege of having been married to such wonderfulness.

PatriotnMore
10-05-2009, 10:25 AM
Good God, I just threw up a little bit in my mouth.

I've had that debate with married men and most are so throughly PWed that they would be worse than the judges. I've heard men go on and on about how men should pay alimony for the privilege of having been married to such wonderfulness.

dantodd
10-05-2009, 10:39 AM
we'd have to weed the stupid out of the population.

That might be overkill, how 'bout we just weed 'em out of the jury pool ;)

dantodd
10-05-2009, 10:43 AM
Jury trial for speeding tickets ahoy!

-Gene

As much fun as my first tangent on this thought was I don't see that as being a consequence of full incorporation unless there are jury trials for speeding tickets in D.C.

nat
10-05-2009, 11:33 AM
They decided Crawford (http://www.wcsap.org/legal/PDF/UnderstandingCrawford.pdf). That was a slap in the face to prosecutors who had been accustomed to rely up hearsay evidence.

I'm of the belief that we're getting a little more freedom out of these conservative judges. The fourth amendment gets short shrift though.


It is more likely to get liberal justices on board for P&I than the conservative ones. Scalia has said something negative about P&I I thought.

Kharn
10-05-2009, 12:12 PM
Scalia does not like Due Process incorporation (as that's not what the term was intended for), but if you read Heller's footnote #9 (the one that cites Cruikshank and The Day Freedom Died?) it sounds like he's more than willing to take a look at restoring P&I.

hoffmang
10-05-2009, 4:10 PM
As much fun as my first tangent on this thought was I don't see that as being a consequence of full incorporation unless there are jury trials for speeding tickets in D.C.

It's a civil fine greater than $25.

-Gene

dantodd
10-05-2009, 4:21 PM
It's a civil fine greater than $25.

-Gene

So you are saying that in DC you get a jury trial for any traffic ticket over $25?

snobord99
10-05-2009, 5:16 PM
There will not be jury trials for traffic tickets. Not any time soon.

"It is well-established that the Sixth Amendment, like the common law, reserves this jury trial right for prosecutions of serious offenses, and that "there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision...An offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious." (Lewis v. United States, 518 U.S. 322 at 324-326, citing Duncan v. Louisiana, 391 U.S. 145 and Codispoti v. Pennsylvania, 418 U.S. 506)

GuyW
10-05-2009, 5:28 PM
6 months of my life isn't petty.

I'd bet the esteemed Justices wouldn't think that 6 months of THEIR own life was petty either....just ours....

.

pnkssbtz
10-05-2009, 5:51 PM
So you are saying that in DC you get a jury trial for any traffic ticket over $25?
Technically, the should be now... are they? I don't know...

There will not be jury trials for traffic tickets. Not any time soon.Wrong Amendment. You are referring to the 6th when it is the 7th in question here...

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Dr Rockso
10-05-2009, 6:06 PM
Technically, the should be now... are they? I don't know...

Wrong Amendment. You are referring to the 6th when it is the 7th in question here...

I'm curious if there's case law saying that the $20 requirement must be adjusted for inflation, since $20 in 1800 is more like $350 today.

snobord99
10-05-2009, 6:10 PM
Wrong Amendment. You are referring to the 6th when it is the 7th in question here...

7th applies to civil proceedings. I'm under the impression that a traffic ticket is an infraction and is usually a criminal matter, not civil so I don't see why the 7th is in question and not 6th.