Jury Nullification to restore the 2nd amendment

[RickD427]

If you ignore the parts that I underlined and bolded, no jury verdict could ever be appealed. But they are, all the time. That's because of the bolded and underlined parts. So before you rely on your narrow interpretation of the 7A, you might want to learn what the "rules of common law" are.

In addition to the above, you may also want to take note that Seventh Amendment only governs the Federal Courts. The Seventh Amendment has never been incorporated to the states, as many of the other amendments have been. Most lawsuits are filed in state courts, and therefore the Seventh Amendment does not apply to those lawsuits.

[tedw]

Relying on Jury Nullification is a horrible idea. You only have to do the math, and consider the consequences, to see the reasons why.

With the volume of court cases flowing through our legal system, you can expect to see some individual cases where Jury Nullification has occurred, but those are very few in relation to the number of cases adjudicated.

For Jury Nullification to work, you need to get all 12 jurors to act contrary to their jury instructions. That's a pretty tall order. If only one of the twelve remains true to the instructions, the effort fails. When that happens, expect a retrial with a new jury.

You also need to consider the consequence of losing the effort, that is a criminal conviction on the original charge, along with all of the penalties.

I think it is a cracker jack idea. I am not advocating anyone breaking the law. But imagine if someone is arrested for having a standard 30 round magazine in California I think Jurors should know their rights and if they happen to be sitting on jury hearing such a case or a similar one, they should act as a check on a tyrannical government and dispense some Justice.-- What is the alternative? Convict them?

[tedw]

In addition to the above, you may also want to take note that Seventh Amendment only governs the Federal Courts. The Seventh Amendment has never been incorporated to the states, as many of the other amendments have been. Most lawsuits are filed in state courts, and therefore the Seventh Amendment does not apply to those lawsuits.

It is the fifth amendment that would stop them from appealing in case of acquital. " nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"-- That HAS been incorporated to include the States. Could they be tried again in case of a hung jury---yes. But so what. What is the alternative ? Find an innocent person guilty of something that is not really a crime but only has the appearance of being a crime? Some would have you believe that I guess.

What would you do if sitting on a jury in an "Illegal" magazine case?

[tedw]

In addition to the above, you may also want to take note that Seventh Amendment only governs the Federal Courts. The Seventh Amendment has never been incorporated to the states, as many of the other amendments have been. Most lawsuits are filed in state courts, and therefore the Seventh Amendment does not apply to those lawsuits.

In California law, this protection is codified in Penal Code 687 PC, which states: "No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted." The double jeopardy principle protects people from being prosecuted twice for the same crime

[RickD427]

It is the fifth amendment that would stop them from appealing in case of acquital. " nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"-- That HAS been incorporated to include the States. Could they be tried again in case of a hung jury---yes. But so what. What is the alternative ? Find an innocent person guilty of something that is not really a crime but only has the appearance of being a crime? Some would have you believe that I guess.

What would you do if sitting on a jury in an "Illegal" magazine case?

Portions of the Fifth Amendment have been incorporated to the states. The entire Fifth Amendment has not been incorporated to the states. For example, the Fifth Amendment guarantees the right to an indictment in felony cases, yet you see state prosecutors normally filing felony charges by means of information, without using an indictment. I understand that the guarantee against double jeopardy has been incorporated, but I don't have the case history of the incorporation.

Methinks that you confusing the results of an acquittal with the results of a hung jury. If a defendant is successfully acquitted of their charges, that's the end. There can be no re-trial on those charges. (But also note that there is no prohibition on another sovereign filing similar charges. That occurred with the LAPD officers in the Rodney King caper). But to get to an acquittal, you need all 12 jurors to agree. If the jury hangs, there is no acquittal and the nice prosecutor is free to continue the case before another jury.

If I were a juror in a "Illegal magazine case", I would heed the court's instruction as to the elements of the offense, and analyze the evidence presented to determine if each element were proven to the "beyond a reasonable doubt" standard.

Our Constitution establishes a separation of powers, and specifies the role that each element of government plays in the grand scheme of things. It is flatly wrong for any participant in governmental affairs to usurp powers not assigned to them. It's wrong when the President attempts to create law through abuse of the regulatory process. It's wrong when Congress seeks to create legislation outside of the Constitution, It's wrong when courts attempt to "legislate from the bench." It's also equally wrong when jurors attempt to reverse laws that they personally disagree with. It's not a juror's place to determine if they agree with a particular law or not. Findings of whether a law is constitutional or not are within the purview of the judge, not the jury.

Why is this so hard for you to understand?

[MountainLion]

... Yea. I am not advocating anyone breaking the law.

Yes you are. The members of the jury swear an oath to uphold the law. Not their own private interpretation of the constitution, but the law. In a jury trial, questions of law are decided by the judge, while questions of fact are decided by the jury.

But imagine if someone is arrested for having a standard 30 round magazine in California I think Jurors should know their rights ...

Sort of a bad example, given that this statute is currently enjoined from being enforced, but let's pretend it wasn't ...

Then the judge would explain to the jury that having a 30-round magazine is a crime. The jurors now have to figure out (from the evidence presented) whether the defendant did or not do that. If they decide to instead change the law, and decide that having a 30-round magazine is not against the law, they are subjugating the law, and violating their oath.

Will jurors get in trouble for this, or go to jail? Usually not. Sometimes they get thrown off the jury by the judge; in central California there was a well-known judge (now retired) who would regularly release jurors during deliberation if they clearly were not willing or able to evaluate the evidence, or ignore the law. But even then, the jurors were not punished, other than getting a stern lecture.

... once been prosecuted and convicted or acquitted." The double jeopardy principle protects people from being prosecuted twice for the same crime.

The prosecution of the crime does not have to end when the jury first comes to a verdict; the case can be appealed, all the way up. And the double jeopardy principle only applies if the first case actually ends with convict or acquit; it does not apply when the jury is hung, when the case is settled or dismissed (for example due to a plea deal), or when the verdict is invalid due to formal grounds. One reason for a jury verdict to be invalid would be a member of the jury acting illegally, for example due to nullification.

And the really big thing you're forgetting is this: It goes both ways, also known as the golden rule: Don't do to others what you wouldn't want done to you. If your push for jury nullification succeeds, what prevents other anti-gun juries from applying the same principle? For example: Someone is caught carrying a gun concealed in public. They get tried, in spite of having a CCW. The anti-gun jury decides that the exception that makes concealed carry legal when permitted with a CCW is unconstitutional or a bad idea, and uses jury nullification to find the defendant guilty. Given that there are many more anti-gun than pro-gun people (and therefore jurors) in California, that is actually much more likely than your idea. Given your limited understanding of the world, you forget that "what goes around comes around", and your push for jury nullification is harmful. We are actually all much better off living within the law as it is, and if we don't like the law, then use the first 3 of the 4 boxes to get the law changed, instead of ignoring or violating it.

[RickD427]

In California law, this protection is codified in Penal Code 687 PC, which states: "No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted." The double jeopardy principle protects people from being prosecuted twice for the same crime

I'll credit your research, yes, California Law provides a protection against double jeopardy that is effectively the same as provided by the Seventh Amendment in federal cases. You'll often see state statutes that duplicate federal provisions, and that's often done because (as in this case) the federal provisions don't reach the states.

It's important to make sure that understand which rules govern your activity. When I play football, I don't dribble the ball en route to the goal. When I play baseball, I don't get to kick a field goal. When you try to argue the Seventh Amendment to a state court action, you're trying to dribble the football. Make sure you understand the rules of the game that you're playing.

As to our present discussion about jury nullification, your point is meaningless. We were discussing the effect of a hung jury. There's no issue in a case where all 12 jurors are complicit in an act of nullification. If that jury returns an acquittal, the case is over - period. But you rarely see that occur. The normal effect of an attempt at nullification is a hung jury. Neither the Seventh Amendment (in federal actions), nor PC 687 (in California state actions) prevent a re-trial in the case of a hung jury. Please note that PC 687 requires that there be a conviction or an acquittal before it becomes applicable. Neither occurs when there is a hung jury.

[MountainLion]

If that jury returns an acquittal, the case is over - period.

Unless, on appeal, it is found that the jury did something wrong. Like perform nullification. Then the jury verdict is simply invalid. There are many other potential causes for an invalid jury verdict. For example, on further investigation it is found that a majority of the jury was not qualified to sit (for example not citizens), but that is extremely unlikely. Or that jury members brought in evidence from outside the court room and used that to come to a decision. Since I'm not an expert on criminal procedure, I don't know whether in such a case the verdict is set aside and a trial de novo begins, or whether the appeals court comes to a verdict.

I like your example of "rules which govern your activity". Mr. TedW is full of enthusiasm, and very short on common sense, knowledge, and understanding. His anger at the current situation turns into him writing nonsense in his posts, and if his advice were ever followed, it would only makes things even worse. He is more like someone who thinks that streaking naked across the field will change the outcome of the game, and turn the streaker into a hero. No, it doesn't work that way.

[Capybara]

I love the idea of jury nullification being widely applied against anti-gun laws, but the unfortunate truth is the majority of Californians are Democrats, (COMMIES) and Democrats (COMMIES) hate guns and gun owners.

FIFY, can't find the line out tool in this new forum software, but you you get the idea.

[tedw]

Yes you are. The members of the jury swear an oath to uphold the law. Not their own private interpretation of the constitution, but the law. In a jury trial, questions of law are decided by the judge, while questions of fact are decided by the jury.


Sort of a bad example, given that this statute is currently enjoined from being enforced, but let's pretend it wasn't ...

Then the judge would explain to the jury that having a 30-round magazine is a crime. The jurors now have to figure out (from the evidence presented) whether the defendant did or not do that. If they decide to instead change the law, and decide that having a 30-round magazine is not against the law, they are subjugating the law, and violating their oath.

Will jurors get in trouble for this, or go to jail? Usually not. Sometimes they get thrown off the jury by the judge; in central California there was a well-known judge (now retired) who would regularly release jurors during deliberation if they clearly were not willing or able to evaluate the evidence, or ignore the law. But even then, the jurors were not punished, other than getting a stern lecture.


The prosecution of the crime does not have to end when the jury first comes to a verdict; the case can be appealed, all the way up. And the double jeopardy principle only applies if the first case actually ends with convict or acquit; it does not apply when the jury is hung, when the case is settled or dismissed (for example due to a plea deal), or when the verdict is invalid due to formal grounds. One reason for a jury verdict to be invalid would be a member of the jury acting illegally, for example due to nullification.

And the really big thing you're forgetting is this: It goes both ways, also known as the golden rule: Don't do to others what you wouldn't want done to you. If your push for jury nullification succeeds, what prevents other anti-gun juries from applying the same principle? For example: Someone is caught carrying a gun concealed in public. They get tried, in spite of having a CCW. The anti-gun jury decides that the exception that makes concealed carry legal when permitted with a CCW is unconstitutional or a bad idea, and uses jury nullification to find the defendant guilty. Given that there are many more anti-gun than pro-gun people (and therefore jurors) in California, that is actually much more likely than your idea. Given your limited understanding of the world, you forget that "what goes around comes around", and your push for jury nullification is harmful. We are actually all much better off living within the law as it is, and if we don't like the law, then use the first 3 of the 4 boxes to get the law changed, instead of ignoring or violating it.

You have a fundamental misunderstanding of what the role of a Jury is:

In the case of Georgia v. Brailsford

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.

Juries Judge the Law As Well (lawliberty.org)

You seem to think the Constitution is not the law. We have a jury system to serve as a check on govermental tyranny. Jurors are not (or shouldn't be at least) Sheeple. The California Courts currently BRAINWASH jurors in jury orientation telling them they are only judges of the facts. No, they are liars.

American History is replete with examples of Jurors judging both the facts and the law. The moat notable example being northern juries which refused to convict under the Fugitive Slave Act even though that was the law. Your attitude seems to be they swore to uphold the law and they should have convicted those that violated the Fugitive Slave Act.


"Sort of a bad example, given that this statute is currently enjoined from being enforced, but let's pretend it wasnt"---I could be wrong but I don't think the statute is currently enjoined.

In summation, I am not encouraging anyone to "break the law", I AM encouraging Jurors to know and understand their rights, responsibilities, and power. One of the fundamental roles of the Jury is to be a part of our system of checks and balances and serve as a check on tyrannical government.

It is shameful that legislator pass laws that they know are unconstitutional. It is shameful that courts try and hide from Jurors their true responsibilities. A pox on both their houses. It is also shameful that government schools don/t teach students the real purpose of the jury system.

[MountainLion]

Not even worth responding to. It's embarrassing that you didn't manage to locate a quote from Thomas Jefferson on the subject.

[RickD427]

You have a fundamental misunderstanding of what the role of a Jury is:

In the case of Georgia v. Brailsford

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.

Juries Judge the Law As Well (lawliberty.org)

You seem to think the Constitution is not the law. We have a jury system to serve as a check on govermental tyranny. Jurors are not (or shouldn't be at least) Sheeple. The California Courts currently BRAINWASH jurors in jury orientation telling them they are only judges of the facts. No, they are liars.

American History is replete with examples of Jurors judging both the facts and the law. The moat notable example being northern juries which refused to convict under the Fugitive Slave Act even though that was the law. Your attitude seems to be they swore to uphold the law and they should have convicted those that violated the Fugitive Slave Act.


"Sort of a bad example, given that this statute is currently enjoined from being enforced, but let's pretend it wasnt"---I could be wrong but I don't think the statute is currently enjoined.

In summation, I am not encouraging anyone to "break the law", I AM encouraging Jurors to know and understand their rights, responsibilities, and power. One of the fundamental roles of the Jury is to be a part of our system of checks and balances and serve as a check on tyrannical government.

It is shameful that legislator pass laws that they know are unconstitutional. It is shameful that courts try and hide from Jurors their true responsibilities. A pox on both their houses. It is also shameful that government schools don/t teach students the real purpose of the jury system.

Nope, You still need to get your facts straight.

The Brailsford case involved the use of a SPECIAL JURY that was assembled of experts to conduct expert fact-finding. It was not a TRIAL JURY that would ordinarily be used to decide if a criminal defendant were guilty of a crime, or if a a civil plaintiff were entitled to relief.

You're confusing the two by suggesting that Brailsford supports the belief that a trial jury can properly engage in jury nullification.

Additionally, please note that Brailsford was a 1794 decision and that subsequent Supreme Court decisions have countered that view.

Please refer to this secondary source, a Law Review article better describing what occurred with the SPECIAL jury in Brailsford: https://www.yalelawjournal.org/pdf/f...2_v7rgjvd5.pdf

You're still trying to "Dribble the Football."

[MountainLion]

I just remembered one factual error that really ought yo be corrected. The rest of your gibberish is self-evidently false, but:

"Sort of a bad example, given that this statute is currently enjoined from being enforced, but let's pretend it wasnt"---I could be wrong but I don't think the statute is currently enjoined.

See Duncan v. Bonta: PC sections 32310 (c) and (d) remain enjoined, and can not be enforced. At least as of a few weeks ago, there was no newer ruling.

[tedw]

Not even worth responding to. It's embarrassing that you didn't manage to locate a quote from Thomas Jefferson on the subject.

[tedw]

Nope, You still need to get your facts straight.

The Brailsford case involved the use of a SPECIAL JURY that was assembled of experts to conduct expert fact-finding. It was not a TRIAL JURY that would ordinarily be used to decide if a criminal defendant were guilty of a crime, or if a a civil plaintiff were entitled to relief.

You're confusing the two by suggesting that Brailsford supports the belief that a trial jury can properly engage in jury nullification.

Additionally, please note that Brailsford was a 1794 decision and that subsequent Supreme Court decisions have countered that view.

Please refer to this secondary source, a Law Review article better describing what occurred with the SPECIAL jury in Brailsford: https://www.yalelawjournal.org/pdf/f...2_v7rgjvd5.pdf

You're still trying to "Dribble the Football."

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification but also upheld the power of the court to refuse to permit an instruction to the jury to this effect.^[26]

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.

I think you need to get your facts straight.